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-00022473-003

04/10/2018

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

CA-00022473-004

04/10/2018

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

CA-00022473-007

04/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00022473-009

04/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00022473-010

04/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00022473-011

04/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00022473-012

04/10/2018

These complaints were submitted by the complainant against the respondent on the 4th of October 2018. Thus, the relevant six-month period for the purpose of these complaints dates from 5th of April 2018.

The complaint relates to alleged breaches of the Payment of Wages Act 1991 and the Minimum Notice & Terms of Employment Act, 1973 as well as a claim of Unfair Dismissal submitted under the Industrial Relations Acts 1969.

The complaints were submitted to the Workplace Relations Commission (WRC) on 4th of October 2018. The cognisable period of the complaints is from the 5th of April 2018 to 4th of October 2018.  

I proceeded to a hearing of these complaints on 11th of December 2018.  

The complainant submits that he was employed by the respondent from the 5th of March to the 18th of September 2018 and that he is owed 3 and a 1/2 days’ pay plus 7 and a 1/2 days holiday pay as well as pay for four bank holidays.

My employer has made an unlawful deduction from my wages (Payment of Wages Act, 1991).

The respondent did not attend the hearing and did not provide a submission.

Section 1 of the Payment of Wages Act provides for the following definition of “wages”

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

   (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

   (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.”

Section 5(1) of the Act provides:

“(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 any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by 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.”

Section 5(6) of the Act provides: —

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

In addition, in making my decision I am mindful of the observations of Ms. Justice Finley Geoghan in the case of Sean Senan Histon -v- Shannon Foynes Port IEHC292 are applicable wherein she stated (in considering Section 5 of the Payment of Wages Act 1991 :-

“It does not appear to me arguable that a failure to pay the Plaintiff any part of his salary is not a deduction from his salary within the meaning of Section 5 of the Act of 1991”

In considering this matter I must decide whether or not the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991.   I must first decide whether the claimed unlawful deduction was in fact “properly payable” to the Complainant.

The complainant advised the hearing that the respondent had failed to pay him for work carried out and that he is owed wages for 3 and half day’s work which he carried out in September 2018 and which the respondent failed to pay him for.  The complainant advised the hearing that he had raised this with the respondent and that the respondent had conceded that he did not pay him the wages owed as the respondent alleged that the complainant had during the course of his work damaged a teleporter and so the respondent had deducted money from his wages to cover the damage. The complainant told the hearing that he had never signed anything and had never agreed that any damage to machinery could be taken out of his wages. The complainant stated that he then advised the respondent that he was not going to show up for work unless his outstanding wages were paid. The complainant advised the hearing that the wages were not paid and accordingly he did not show up for work on the following Monday.   The complainant told the hearing that the respondent phoned him asking why he did not go to work and he again explained that he was not going to work until his wages were paid.   The complainant advised the hearing that he did not show up for work on Tuesday or Wednesday and that he had on Wednesday received his P45 in the post from the respondent.

The complainant told the hearing that the amount he is owed in unpaid wages amounts to €350.

I am satisfied given the evidence adduced and based on the balance of probabilities that this amounts to an unlawful deduction in respect of wages which were properly payable to the complainant.

In addition, the complainant told the hearing that he did not receive any holiday pay from the respondent he stated that he is owed 7 and a half days holiday pay which the respondent failed to pay him upon termination of his employment.  

The complainant told the hearing that this amounts to €750 which he is owed in accrued holiday pay.

I am satisfied, given the evidence adduced and based on the balance of probabilities that this amounts to an unlawful deduction in respect of wages which were properly payable to the complainant.

The complainant claims that he is also owed wages for four Bank Holidays during which he worked for the respondent and for which he received only his basic rate of pay and did not receive any double time or time of in lieu of Bank Holidays worked.   The complainant told the hearing that this amounts to €400 which he claims he is owed in respect of four Bank Holidays worked during the relevant period.

I am satisfied given the evidence adduced and based on the balance of probabilities that this amounts to an unlawful deduction in respect of wages which were properly payable to the complainant.

The complainant has submitted a separate complaint in respect of the respondents alleged failure to provide him with payment in lieu of notice upon termination of his employment.

Having considered the evidence adduced, I am satisfied on the balance of probabilities that the respondent made the above unlawful deductions in respect of unpaid wages, unpaid holidays and unpaid premium for Bank Holiday work outlined from the wages of the complainant.

Having considered the totality of the evidence adduced, I declare that the complaint is well founded, and I consider it reasonable in these circumstances to award the complainant the total amount of the unlawful deductions, i.e. a total of €1,500.  

Having considered the totality of the evidence adduced, I declare that the complaint is well founded, and I award the complainant the amount of the unlawful deductions, i.e. a total of €1,500.  

The complainant submits that he was employed by the respondent from the 5th of March to the 18th of September 2018. He submits that he was unfairly dismissed by the respondent.

The respondent did not attend the hearing and did not provide a submission.  

The complainant advised the hearing that the respondent had failed to pay him his correct wages for the week ending 13th of September 2018.   The complainant stated that he was underpaid in respect of 3 and a half days pay. The complainant told the hearing that he raised this with the respondent.   The complainant advised the hearing that the respondent did not dispute the accusation that he had underpaid the complainant. The complainant told the hearing that the respondent told him that the reason for this was that the complainant had during the course of his work damaged a teleporter and so the respondent told him that he had deducted money from his wages to cover the damage.

The complainant told the hearing that he had never signed anything and had never agreed that any damage to machinery could be taken out of his wages. The complainant stated that he then advised the respondent that he was not going to show up for work unless his outstanding wages were paid. The complainant advised the hearing that the wages were not paid and accordingly he did not show up for work on the following Monday.   The complainant told the hearing that the respondent phoned him on Monday asking why he did not go to work and he again explained that he was not going to work until his wages were paid.   The complainant advised the hearing that he did not go to work on Tuesday or Wednesday and that he had on Wednesday received his P45 in the post from the respondent.

It appears from the evidence adduced that the complainant and the respondent became locked in an impasse over the respondent’s failure to pay the complainant his wages and the complainant’s refusing to return to work until the wages were paid.

The complainant advised the hearing that he had failed to show up for work for which he was expected to show up on Monday Tuesday or Wednesday on the week of the 18th of September and that he had when questioned about this by the respondent informed him that he was not going to work until the respondent paid him the wages he was due.   This complainant was referring specifically to three and a half days pay which the respondent had withheld form him and which the respondent claimed he was deducting due to damage caused to a teleporter by the complainant.

The complainant stated that he then received his p45 from the respondent in the post. It is submitted by the complainant that this amounts to a dismissal.  

I am satisfied from the evidence adduced by the complainant that the respondent failed to apply any procedures in respect of his dismissal and sent him his p45 without fully engaging with the complainant. I am also satisfied that the complainant in this case contributed to his own dismissal by failing to show up for work over three days from Monday to Wednesday 18th of September and when questioned by the respondent about his non-attendance stated that he would not be going to work until the respondent paid him his outstanding 3 and a half days wages.

In the herein case, I am satisfied based on the evidence adduced and on the balance of probabilities that the the Respondent’s handling of the matter breached the Complainant’s right to fair procedures and natural justice.   The Respondent dismissed the Complainant with no process whatsoever. I am also satisfied that the complainant contributed to his own dismissal by his refusal to attend work.  

Accordingly, I recommend that the respondent pay the complainant €750 in compensation for his unfair dismissal.

I recommend that the Respondent pay the Complainant the sum of €750 in compensation for his unfair dismissal.

The complainant submits that he was employed by the respondent from the 5th of March to the 18th of September 2018.   The complainant submits that was entitled to 1 weeks’ notice or payment in lieu thereof which he did not receive.

The respondent did not attend the hearing and did not provide a submission.  

Section 4 of the Act states:

4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( a) if the employee has been in the continuous service of his employer for less than two years, one week,

( b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

( c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

( d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

( e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

The complainant advised the hearing that the respondent had failed to pay him for work carried out and that he was owed wages for 3 and half day’s work which he carried out in September 2018 and which the respondent failed to pay him for.  The complainant advised the hearing that he had raised this with the respondent and that the respondent had conceded that he did not pay the wages owed as the respondent alleged that the complainant had during the course of his work damaged a teleporter and so the respondent had deducted money from his wages to cover the damage.

The complainant told the hearing that he had never signed anything and had never agreed that any damage to machinery could be taken out of his wages. The complainant stated that he then advised the respondent that he was not going to show up for work unless his outstanding wages were paid. The complainant advised the hearing that the wages were not paid and accordingly he did not show up for work on the following Monday.     He stated that the respondent phoned him asking why he did not go to work and he again explained that he was not going to work until his wages were paid.   The complainant advised the hearing that he did not go to work on Tuesday and that on Wednesday he received his P45 in the post from the respondent.

The complainant advised the hearing that he was entitled to 1 weeks’ notice or payment in lieu thereof which he did not receive.

I am satisfied given the evidence adduced and based on the balance of probabilities that the complainant was entitled to one week's notice which he did not receive.

Having considered the totality of the evidence adduced, I declare that the complaint is well founded, and I consider it reasonable in these circumstances to award the complainant €500 in respect of a payment in lieu of 1 weeks’ notice.

Having considered the totality of the evidence adduced, I declare that the complaint is well founded, and I award the complainant €500 in respect of a payment in lieu of 1 weeks’ notice.