Complainant

Respondent

Anonymised Parties

Café worker

Cafe

Representatives

Self-represented

Respondent’s manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00013549-001

01/09/2017

The respondent corrected the name of the company.

The complainant commenced employment with the respondent on 16/5/17 as a café employee. The agreed rate was €9.25 per hour.

She was paid for her first week of work on the 26th of May.

She left her employment on 29/5/17.

She states that she was deducted €428 in respect of unpaid wages on 9 June.

She submitted her complaint to the WRC on 1/9/17.

The complainant worked for 2 weeks with the respondent.

The complainant commenced training for a 4-hour trial period with the respondent on the 16 May. She states that with the exception of the first hour she was advised that she would be paid for this day. She was paid for her first week of work that is week commencing 15 May on the 26th of May. She did not get a payslip.

She is claiming payment of €428 which equals 46 hours. She states she is due wages for 2 weeks.

Her working hours for week one was

         16 May, 3.5 hours

         17 May,7.30-3.30

         18 May, 8.30-3pm

         20 May, 7.30-3.30

                                       --------------------

                                       24.5 hours

Her working hours for week 2, week commencing 22May, 34 hours.

She worked on the 29th of May (Monday) and later that day texted the respondent to inform him that she was leaving immediately.

She was due to be paid for 37 hours and 10 minutes (€343.17) from the previous week, the 20-26 May, on Friday the 2nd of June. She never received this money. The following week on June 9th she was due to be paid for 15 hours for two days worked on 27 and 29 June. Again, she never received this money.

On the 26th of July she emailed the respondent informing him of hours worked and the amount owed as well as providing her bank details.

On the 1st of September her bank informed her that the respondent had requested that she return the money that had been put into her account for her first week of wages. She declined to do so as she states that she is owed over€ 400. At the hearing she accepted that she had miscalculated the amount owing to her.

The complainant started work with the respondent on the Wednesday 17th May.

She worked the following hours:                              

Week 1:     17 May 7.30 - 3.30 (first day of training)

                  18 May, 8.30 3.00

                  20 May, 7.30- 3.30

                    (less 1.5 breaks)

                     Total 21.5     @ €9.25 per hour     = GP €198.09

The respondent refutes the complainant’s assertion that she would be paid on the trial day.

Week 2:     22 May, 9.30-3.30

                     23 May ,9.00 - 2.00

                     24 May,7.30 -3.30

                     25 May, 7.30-4.00

                                   7.30-3.30

                     (less 2.5 hours)

                   Total 33 hrs       @ €9.25 per hour=   GP€ 305.25

Employees are paid every Friday, 1 week in arrears.

The complainant failed to provide her PPS number, and bank details to the respondent as requested.

The complainant was mistakenly paid €319.09 into her bank account on 26 May and 2 days later failed to turn up for work or sign for hours worked or come to the cafe in person or return any calls. At no stage did she inform the manager of the incorrect lodgement. The respondent had no further communication from her until her email of July stating, “I’m owed over €400 more euro more” and with no mention of the payment of €319 made to her on the 26 May -

The respondent contacted the relevant banks involved to ask the employee to return the money so they could process the correct salary payment for her. The respondent advised that the person in receipt of the monies has refused to acknowledge the incorrect payment.

Taking into account the €319.09 paid on the 26th May, and the employee asking for a further “400 plus euro”, this amounts to a claim that she is owed €719.09 for 54.5 hours. The complainant is attempting to deceive the company in over paying her. The respondent believes that the complainant ought to have signed for her hours, filled out the employee details form (PPS number), acknowledge the incorrect payment and returned the money to the company.

The Act of 1991 states in section 5.—(1)

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it”.

The complainant did not receive a contract of employment. She did not dispute the respondent’s statement that she failed to provide details as requested. The complainant did not consent to the deduction, if any, in writing.

The Act further prescribes that

“(2) An employer shall not make a deduction from the wages of an employee ..

unless—

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee),”

Regarding recoupment of overpayment of wages, section 5 states

“(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment”.

What was deducted from the complainant?

The complainant stated in the complaint form that she was deducted the sum of €428 on the 9 June. At the hearing and after the respondent’s evidence she accepted that she had miscalculated the amount of the deduction. She did not dispute that the sum of €319 was paid to her. The respondent submitted one pay slip for a payment of €309 on the 27 May.

Conflict of evidence concerning number of hours worked.

The complainant’s tally of total hours worked by her for the period 16 – 29 May to is 62.5 hours. The respondent’s tally of hours for the corresponding period is 59.

The complainant’s evidence was contradictory and changing. She declined to sign any forms recording hours worked. She states she was never advised of same. On the basis of consistency, I accept the respondent’s contention that she did not work on the 29 May. The respondent did not dispute that she worked on 16 May characterising it as a “trial day”. This was 3.5 hours worked. She states that she worked 1 hour in excess of the respondent’s reckoning for 22 May. I find that she therefore worked a cumulative total of 59 hours.

Amount due for hours worked

The respondent submitted a copy one pay slip, copied to the complainant and uncontested, following the hearing, which indicated that a gross payment of €309 (not €319 as stated) was paid to the complainant on the 27 May. The wage for the total number of hours payable to the complainant is €545.75 based on 59 hours by €9.25, less €309 paid. She has been deducted therefore €236.75.

As set out above, the statute does not prohibit the recoupment of an overpayment of wages but does prohibit the recoupment of wages in the manner executed by the respondent.

I find the complaint is well founded. I decide that the respondent should pay the sum of €236.75 to the complainant.

I find the complaint is well founded. I decide that the respondent should pay the complainant the sum of €236.75 subject to all lawful deductions.

Payment of wages; deduction; recoupment of overpayment of wages; not notified in advance.