Complainant

Respondent

Anonymised Parties

Instructor

Technical and electrical training service.

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-00022654-001

17/10/2018

The complainant commenced employment with the respondent as an instructor on 9/3/16. He worked 40 hours a week. His gross weekly wage was €803.

His complaint is that he was not paid wages due to him in April and May 2018.

He was also not paid for his outstanding leave entitlement of 10 days.

He submitted his complaint to the WRC on 17/10/18.

The complainant worked as an instructor. He was not paid for 3 weeks work done in April and May 2018. He was laid off on 28 May 2018. He worked a casual day for the respondent in June and 1 day in July. The amount owing to him in respect of unpaid wages is €2730.

He was not paid for the remaining 10 days statutory annual leave owed to him in respect of 2018.

The respondent did not dispute the amounts owed to the complainant. The respondent states that he was operating at a loss. He did not know when he would be able to pay the complainant. He states that he paid the complainant even when there were no trainees or an insufficient number of trainees to warrant a full day or weeks’ pay.

I am required to establish if the respondent made a deduction contrary to the provisions of the Payment of Wages Act, 1991. Section 5 (1) of the 1991 Act states

“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.’

Applying the above provisions to the instant case, the withholding of the complainant’s wages in April and May 2018 was not authorised or required by statute. Neither did the complainant consent to same. The respondent accepted that he withheld the wages and the accepted the amounts.

I find that the withholding of 3 weeks and 2 days’ pay from the complainant is an unlawful deduction and in breach of section 5 (ii) of the Act.

The second element of the complainant’s complaint is that he was not paid half of his annual leave entitlement to the amount of 10 days. The respondent did not dispute this.

Section 6(4) of the Act of 1991 states

“ A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable”

As the complaint was taken under the 1991 Act, I can go back to 18 April to reckon his allowable leave. The complainant states his employment ended on 28th May 2018, so I can reckon the period 17 April to 28 May, plus 2 days for purposes of leave entitlement. During this period, he worked 240 hours. He is therefore entitled to 8% of the works worked during this period which amounts to €385.

I find the complaint to be well founded and I direct the respondent to pay the complainant the sum of €3115 subject to all lawful deductions.

Unlawful deduction