Complainant

Respondent

Anonymised Parties

A Fitter

An Industrial Automation Company (In Liquidation)

Representatives

The Complainant attended the hearing in person and was not represented

The Respondent did not attend the hearing or was not represented

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-00024895-001

08/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024895-002

08/01/2019

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

CA-00024895-003

08/01/2019

The Complainant was employed by the Respondent as a Fitter from 17 October, 2011 until 24 July, 2018 when his employment was terminated by reason of redundancy. The Respondent company was placed into liquidation with effect from 30 January, 2019. The Complainant worked an average of 39 hours per week and was paid a gross monthly salary of €3,276.00.

The Complainant claims that the Respondent made unlawful deductions from his wages in relation to outstanding wages, holiday pay, payment in lieu of notice and a bonus payment contrary to Section 5 of the Payment of Wages Act 1991 on the termination of his employment.

The Complainant also claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Sections 19 and 23 of the Organisation of Working Time Act 1997. However, the Complainant indicated at the oral hearing that the complaint in respect of unpaid annual leave entitlements under the Organisation of Working Time Act 1997 was a duplicate claim to the claim for unpaid holiday entitlements under the Payment of Wages Act, 1991. Therefore, the Complainant confirmed that the complaint under the Organisation of Working Time Act 1997 (under Complaint Ref. No. CA-0024895-002) was withdrawn.

CA-00024895-001 – Complaint under the Payment of Wages Act 1991

The Complainant submits that the Respondent made unlawful deductions from his wages on the termination of his employment in respect of the following payments which were due to him, namely:

·         €3,603.60 in unpaid wages which he had accrued during the final five weeks of his employment;

·         €1,434.00 in relation to a bonus payment which he had accrued in relation to a work-related trip to China;

·         €1,842.00 in respect of unpaid holiday entitlements which he had accrued during the leave years 2017/18 and 2018/19.

The Complainant claims that he has engaged with both the Respondent and the Liquidator (following the appointment of a Liquidator to the company) in order to obtain the outstanding payments but all efforts have been unsuccessful to date.

CA-00024895-003 – Complaint under the Payment of Wages Act 1991

The Complainant claims that he did not receive the appropriate payment in lieu of notice from the Respondent on the termination of his employment. The Complainant claims that the Respondent’s failure to pay him in lieu of his notice entitlements constitutes an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991.

The WRC received correspondence from the Liquidator on 8 May, 2019 to confirm that the Respondent company had been placed into liquidation on 31 January, 2019. The Liquidator indicated that the Complainant’s claim for insolvency payments arising from his employment was being dealt with by his office. The Liquidator did not attend the oral hearing on 9 May, 2019 to provide evidence in relation to the within complaints.

The Law

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 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.”

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.

The Complainant referred these complaints to the Workplace Relations Commission on 8 January, 2019. By application of the time limits provided for in Section 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaints were referred to the WRC i.e. from 9 July, 2018 to 8 January, 2019. I am satisfied that the alleged unlawful deductions which the Complainant claims were made from his wages on the termination of his employment on 24 July, 2018 fall within the cognisable period covered by the claim.

The issue for decision in relation to the Complainant’s complaint is whether or not the Respondent made unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to unpaid wages, bonus payment, unpaid holidays and pay in lieu of notice which he claims were due to him on the termination of his employment on 24 July, 2018. In considering this issue, I must first decide whether the claimed unlawful deduction was in fact “properly payable” to the Complainant within the meaning of Section 5(6) of the Act.

CA-00024895-001 – Complaint under the Payment of Wages Act 1991

Based on the uncontested evidence of the Complainant, I find that the following payments were “properly payable” to the Complainant within the meaning of Section 5(6) of the Act on the termination of his employment, namely:

·         €3,603.60 in respect of unpaid wages;

·         €1,434.00 in relation to an unpaid bonus payment;

·         €1,842.00 in respect of unpaid holiday entitlements.

Having regard to the foregoing, I find that the Respondent made unlawful deductions from the Complainant’s wages contrary to Section 5 of the Act in respect of the above payments which were payable to him on the termination of his employment. Accordingly, I find that the complaint is well founded.

CA-00024895-003 – Complaint under the Payment of Wages Act 1991

The Complainant has also claimed that he did not receive the appropriate payment in lieu of notice from the Respondent on the termination of his employment. In considering this matter, I note the Complainant’s evidence that he received written notification from the Respondent on 26 June, 2018 that his employment would terminate by reason of redundancy and that he worked out his notice period until the termination of his employment on 24 July, 2018.

The Complainant was employed by the Respondent from 17 October, 2011 until 24 July, 2018 and therefore had a statutory entitlement to four weeks’ notice in accordance with the provisions of Section 4(2)(c) of the Minimum Notice and Terms of Employment Act 1973. In the circumstances, I am satisfied that the Complainant was afforded his statutory period of notice prior to the termination of his employment. Accordingly, I find that the Complainant’s claim that the Respondent made an unlawful deduction contrary to Section 5 of the Payment of Wages Act 1991 in relation to pay in lieu of notice is not well founded.

CA-00024895-001 – Complaint under the Payment of Wages Act 1991

I find that the Respondent made unlawful deductions from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991, and accordingly, that the claim is well founded. I hereby direct that the Respondent pay the Complainant the following sums, subject to any lawful deductions:

·         €3,603.60 in respect of unpaid wages;

·         €1,434.00 in respect of unpaid bonus payment;

·         €1,842.00 in respect of unpaid holiday entitlements.

CA-00024895-003 – Complaint under the Payment of Wages Act 1991

I find that the Complainant’s claim that the Respondent made an unlawful deduction contrary to Section 5 of the Payment of Wages Act 1991 in relation to pay in lieu of notice is not well founded.

Payment of Wages Act 1991 – Section 5 – Unlawful Deductions – Holiday Pay – Bonus – Unpaid Wages – Pay in lieu of notice