Complainant

Respondent

Anonymised Parties

An IT Manager

An IT Company

Representatives

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-00020686-002

20/07/2018

The Complainant was employed by the Respondent from 1st January 2017 until his resignation on 23rd May 2018. The Complainant was paid a gross monthly salary of €3,686.00. He lodged a complaint with the Workplace Relations Commission on 20th July 2018.

The Respondent did not attend the hearing.

Preliminary Matter

Complainant's Status

On his Complaint Form the Complainant had stated his position as, "Director/Company Secretary".

In the statement he provided on the WRC Complaint Form, the Complainant also described himself as a director.

When questioned about his status the Complainant stated although he was a director and shareholder, he had been paid a salary, from which PAYE and USC deductions were made. His salary was paid into his bank account as salary. He did not get any payment as a director, he did not get a Director's fee nor had he been given a Director's loan. The Complainant stated that he did normal every day work for the Respondent. His work was hands on and practical; systems design and delivery. He had to seek permission from his superiors to take leave.

The Complainant stated that, he was never issued with a contract of employment or any document even outlining his terms and conditions of employment, despite having made several requests for same.

Findings on Preliminary Point

On the uncontested evidence of the Complainant I find that he was an employee of the respondent company; he was under control of others, importantly PAYE and USC deductions were made at source, he had to seek permission before taking lave and his work was what could be termed "everyday" work.

The Complainant submitted that he had not received a full salary since the start of 2018, up to and including May 2018 when he resigned, even though there was an understanding that this money would be repaid when the Respondent was in a position to do so. Even though a director, he submitted that, he had always been paid as an employee and paid PAYE and USC. Other members of staff were paid fully during the period he was not. The Complainant submits that he should have been paid an additional €9,000.

The Respondent did not attend the hearing.

Section 5 of The Payment of Wages Act 1991 states;

(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 deductions which are the subject of this complaint are clearly not required by statute, did not constitute a term of contract nor were they given by prior consent. On the uncontested evidence of the Complainant I find that he was subject to an illegal deduction of €9,000.

I find that the complaint is well founded and order the Respondent to pay the complainant the sum of €9,000.