ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00018239

Parties:

	Complainant	Respondent
Anonymised Parties	A Retail Assistant	An Optician

Representatives

Complaint(s):

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-00023494-001	23/11/2018

Date of Adjudication Hearing: 08/02/2019

Workplace Relations Commission Adjudication Officer: Penelope McGrath BL

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.

In particular, the Complainant herein has referred the following complaint:

A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.

Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.

Section 5 (1) states that an employer shall not make a deduction from an employee unless :

The deduction is required by Statute or Instrument

The Deduction is required by the Contract of employment

The employee has given his prior consent in writing

Section 5 (2) The employer shall not make a deduction in respect of any Act or omission of the employee

It is noted in a preliminary way that per Section 4 an Employer shall give or cause to be given to an employee statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.

In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 23rd of November 2018 was submitted within the time allowed.

Background:

The Complainant has worked in retail opticians for a while. In the middle of 2018 he was working in the Respondent company premises. The Complainant is claiming six weeks wages which are due to him and which have not been paid in circumstances where the business was in financial difficulty.

Summary of Complainant’s Case:

The Complainant gave evidence on his own behalf. In and around June or July of 2018, he had started in an Optician unit in the north side of the city, the Respondent Company herein. The Complainant was not paid for the last six weeks of working at this premises. The Complainant was aware that there had been an argument or a disagreement or some sort of falling out between the two Directors of this company. However, he was not advised that his employment was in any way effected by this fact and he turned into work every day in the ordinary way. It was only at the end of October 2018 that it became clear to the Complainant that one of the Directors did not recognise his obligation to discharge the wage due and owing. The Complainant is making a claim that the failure to pay his wages is an unlawful deduction per the Act. The Complainant’s gross wage per month is €1,250.00.

Summary of Respondent’s Case:

The Respondent Director IT had had a long standing Contractual relationship with his Co-Director and a 2016 agreement to purchase the business formed the backdrop to the events herein. Mr. IT was concerned with the company finances and expressed a need to tighten up on the outgoings to his Co-Director. Mr. IT was particularly not happy that his Co-Director had placed a number of staff into the premises at what he perceived to be inflated salaries. He agreed with his Co-Director that they should be removed in early October 2018. There was no agreement as to when this would happen and it took a full month for the Complainant herein to be re-absorbed into one of the C0-Directors businesses. In the circumstances IT did not believe that he should be obliged to pay the last month of salary though he did recognise in evidence the fact of the work having been carried out by the Complainant.

Findings and Conclusions:

I have carefully considered the evidence adduced herein. The Complainant gave his own evidence and was supported by Mr. JD a company Director. The Respondent was represented by the second company Director Mr. IT.

The Respondent company has two Directors one of whom – Mr. JD – was known to the Complainant as he had worked with him for a good few years and in various different units. JD had moved the Complainant into the Respondent company in and around June of 2018. The Complainant worked for about three or four months up to the start of October 2018. At that point in time, the second Director Mr. IT took a more active interest in the day to day affairs of the Respondent enterprise. In the opinion of IT, this business was a failing business. IT was particularly concerned that the Complainant had been placed in the business on what Mr. IT believed was an inflated salary.

It was clear in the course of the evidence that the company Directors herein were in the process of falling out in October of 2018, and that the Complainant was ultimately to be the collateral damage.

IT insisted that the Complainant be removed from staff forthwith, and whilst JD did eventually absorb the Complainant back into one of his other businesses, the move was not affected until the end of October or beginning of November 2018. There is clear and uncontroverted evidence that the Complainant worked for half of September and the full month of October 2018. I accept that the Complainant had been paid up to the middle of September only. The Complainant was not, however, paid for the balance of September and the month of October in the ordinary way.

I am absolutely satisfied that the Complainant worked for the Respondent company for September the month of October and I am further satisfied that the Complainants full salary for that period of time was withheld and that this amounted to an unlawful deduction as per the Payment of Wages Act.

I am satisfied that there has been a contravention of Section 5 aforesaid. There was no requirement for such a deduction and nor was the Complainant’s consent obtained. I accordingly deem this complaint to be well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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

CA-00023494-001 - I direct the Respondent to pay to the Complainant the sum of €1,900.00

Dated: 16th April 2019

Workplace Relations Commission Adjudication Officer: Penelope McGrath BL

Key Words: