Complainant

Respondent

Anonymised Parties

A Head Chef

A Group of Restaurants

Act

Complaint Reference No.

Date of Receipt

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

CA-00019536-001

01/06/2018

This case surrounds an alleged shortfall in the payment of wages over a five week period of employment that covered December 2017 and January 2018.

The Complainant is an Irish National who worked for a 5 week period 14 December 2017 to 15 January 2018 . He worked a 45 hour week and there is a dispute surrounding his agreed wage . The Complainant contends that he was to receive €14 euro per hour   for the first two weeks and €15 euro per hour after that. He received a payment of €13 per hour on 21 December, 2017.

The Complainant gave evidence on his participation in an interview for the position .He confirmed that rate was not discussed at this forum , which lasted half an hour .He sought clarification once he received his first pay slip and his Manager gave him an undertaking that the matter would be sorted out post the Christmas rush . He went on to outline the efforts he made to secure the agreed payments as he submitted that he received €13 per hour for his entire hours of work without variance . He was unsuccessful in securing his correct pay prior to his employment being terminated. He was replaced by the previous head chef.

He submitted that he had written to the Respondent on 12 February 2018 seeking the shortfall in his pay which he outlined as €453.50 gross pay inclusive of holidays and two public holidays .He had not received a response. He clarified that he had received payment for the annual leave and public holidays but not the variance in the hourly rate .

The Complainant expressed a complete dissatisfaction with the manner in which he was treated and in the manner of his dismissal . He resolved to recoup what was owed to him .

The Complainant went on to find new work .

The Respondent operates a number of restaurants spread across the country . The Director outlined that the complainant attended for interview where he was to be hired on trial . Pay was not discussed .The Respondent submitted that on the Friday evening before the complainant started he was informed by his manager that he would start on €13 per hour and he would be paid extra after he worked out at the position .The wage was not raised as an issue during the course of the employment .

The Respondent submitted that €15 per hour was not widely paid in the restaurant group and was not a starting salary known to the company . The Complainant did not work out at the restaurant and his employment ceased .

The Area Manager gave evidence to the hearing and disputed the complainants recollection of the agreed rate . A Trial employment period was agreed on either the 1 or 2 December 2017 , He understood that he had agreed a starting salary of €13 for the first two months with the complainant with an agreed increase after that to €14 per hour .The On site Manager had not raised the issue of pay with him on the complainants behalf.

The Respondent outlined that they had sought to resolve the matter with the complainant prior to the hearing , without success .

I have given careful consideration to both parties presentation on this complaint . The entire case is bereft of documentation of any kind and this goes to the root of the case . The Respondent indicated that the timeframe for a statutory statement of terms of employment had not passed at the time of the complainants departure from employment . This was the reason given for not issuing this helpful document, which may have shone a light on the starting salary . I found this approach to be short of best practice and I advised both parties on the perils of commencing and continuing employment without documentation .

I acknowledge the efforts made by both parties to resolve this case prior to and during the hearing .

This is a complaint under the Payment of Wages Act where the complainant has submitted that the Respondent made an unlawful deduction from his wages on 14 December,2017 to the tune of €453.50. The Complainant continues to express a high level of dissatisfaction at the manner of his termination of employment, however, this is not a complaint before me and I must confine my findings to the aspect of wages .

Section 5(1) of the Payment of Wages Act 1991 prohibits a deduction in wages save in cases where statute, contract or consent over ride this .

Section 5(6) pf the Act provides: Where—

( 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.

The Complainant submits that €14 per hour was properly payable to him for the first two weeks of his employment and €15 thereafter .The Respondent disputes this and submitted that the complainant was paid what was agreed from the outset .

For my part, I found it difficult to decipher what was actually agreed in the absence of corresponding documentation . That was why I asked both parties to give evidence on their recollection of the moment of pay determination .

I have considered this evidence and on the balance of probabilities, I prefer the Respondent evidence in the case . I cannot establish on the balance of probability , that the rates of €14 and €15 were agreed from the outset or that these rates were properly payable to the complainant from the outset . Sullivan V Department of Education [1998]ELR 217 applied .

I find that the complaint is not well founded .

Decision:

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

Section 6 of the Payment of Wages Act , 1991 requires that I make a decision in accordance with Section 5 of the Act .

I have found that the complaint is not well founded .

Under payment Of Wages