Complainant

Respondent

Anonymised Parties

A Van Salesman

A Food Business

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-00026235-001

12/02/2019

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

CA-00026235-002

12/02/2019

These claims involve a post-employment claim for unpaid wages in the form of pay, payment for annual leave and an underpayment of commission. The claims are contested in full by the respondent.

The Complainant is a Polish National who worked as a Van salesman for the Respondent food company from 10 January 2018 to 24 August 2018. He worked a 40-hour week. The Complainant was a lay litigant as his Trade Union representative had come off record the day prior to the hearing. His work involved selling instore and external products.

CA -00026235-001

The Complainant submitted that he had been wrongly deducted 4 days of annual leave from his final wage slip. He had asked for validation of this once he left employment and did not receive a response. He submitted that he was illegally deducted the sum of €461.52 gross pay.

CA -00026235-002

The Complainant made a separate complaint seeking that an underpayment of wages be addressed. He submitted that he is owed the sum of €164.38 from his final payment of wages. He submitted that he had not been paid for his final day at work, valued at €115.38 and commission covering July and August 2018 was short €49

The Complainant submitted that he had emailed his former employer on 18 September 2018 seeking 4 days annual leave owed and his last days payment. The Respondent followed in response dated 26 September refuting that annual leave was owed and that he was considered absent on his last day of work.

The Complainant had asked for proof of the respondent position but had not received any proof and maintained that both claims were both live. He denied having holidays in June 2018 and he believed that he was owed two snow days in pay as he was ordered to stay at home during those two days.

The Complainant explained that he had prepared to leave work and couldn’t get any direction from the Respondent causing him to have to work much later than he intended on that last day, August 24. He could not obtain a response from the Respondent and did his very best to return equipment, stock and the company van.

The Complainant was very aggrieved by his treatment by his former employer.

He was not prepared to sit down with the respondent to seek a resolution.

The Respondent operates a food business and accepted the dates of employment furnished by the complainant. The Respondent refuted the claims raised and submitted a compiled book of documents and some individual emails in defence of the claim. In addition, the proprietor addressed the hearing in offering clarifications of the claim’s status.

The Respondents representative explained that commission was paid monthly, and the complainant received a company phone allowance which had run over through domestic use. The Complainant had agreed to a €200 repayment plan without interest.

The Respondent exhibited a letter sent to the complainant dated 31 August 2018 indicating that he had overtaken 7.5 days leave and the monies were recouped over two weeks leaving a half day paid. The Respondent confirmed that the days where snow kept people at home in March 2018, staff were given a choice to use annual leave and accepted this.

CA -00026235-001

The Respondent refuted the claim. The complainant had overtaken his annual leave entitlement of 20 days pro rata. He had earned  12.5 days of annual leave up to 23 August and had taken 20 days 7.5 days were recouped

CA-00026235-002

The Respondent refuted the claims and introduced a copy of an email sent to the complainant dated 23 August with instructions for the last days work and the requirements therein. The Complainant was requested to bring the van and all company property back to HQ in another part of the country before dropping off the van to a named location at a named time. She maintained that a full day’s work was available.

The Respondent submitted a copy of an email sent from the complainant’s personal email at 11:39 hrs on Friday 24 August, his last day of work. The Complainant stated that he had received the Respondents email and was unable to change his plans for the afternoon due to child minding commitments. He informed the respondent that he had couriered stock to HQ and would follow on with equipment before dropping off the van.

The respondent submitted that no work was done on that day and that commission as owed had been paid. The last payment made to the complainant was a rectification figure of €87.46 on 26 September 2018.

The Respondent had endeavoured to explain everything to the complainant in a responding email of 26 September 2018 and had travelled to the hearing to offer further explanation.

I have considered the oral and written submissions made by the parties. I have read the documents submitted by the Respondent which were shared with the complainant. At my request the Respondent furnished the email of August 23 which set out the final day instructions for the complainant to complete. This was copied to the complainant and did not furnish a response.

CA -00026235-001

The Complainant is seeking 4 days’ pay returned. This referred to 2 days for snow days and 2 days of annual leave.

Section 5 of the Payment of Wages Act, 1991 prohibits a deduction of wages outside written consent, contractual or statutory reasons.

The Respondent submitted that the complainant had overtaken his leave. During the hearing he agreed that he may have taken two days leave in June which he had forgotten about. I found that the contract had a line inserted:

You must remain in employment with the company for the complete holiday year to avail of full entitlement.

I accept that the complainant may not have fully appreciated just how this worked, yet it was a contractual term.

The Respondent exhibited a copy of an application form signed by the complainant seeking 19 /20 of June as annual leave. Two annual leave days were recorded on the pay slip dated 23 June 2018.

I accept these records as submitted.

The Complainant was clear that he was wrongly deducted for snow days on March 1 and 2, 2018. I noted that the Respondent had a comprehensive Adverse weather policy in the staff handbook. This provided 4 options for dealing with the impact of adverse weather. The Complainant accepted that he had not opened the grievance procedure on this matter.

I note that the Labour Court in Marks and Spencer, Cork and Mandate LCR 21995, an Industrial Relations case where the Chairman of Labour Court commented that a consistent approach to all staff is good Industrial relations in addressing a situation where 13 staff members had not availed of any of 4 options for addressing an earlier Storm Emma.

At any rate, the snow days of March 1 and 2, 2018 are both outside the statutory time limit permitted for claims under the Payment of Wages Act. I have no jurisdiction to hear that aspect of the case as the complaint was lodged on 12 February 2019, outside the permitted time limits.

I have found that the claim for 2 days annual leave is not well founded as the complainant confirmed that he had applied for 19/20 June as annual leave and was paid for annual leave in June 2018 as exhibited on the pay slips.

The first aspect of the complaint is not well founded. The second part on snow days is out of time.

CA -00026235-002

I have considered the second aspect of the complaint. I have listened carefully to both party’s recollection of the events of 23 -24 August 2018. I have considered the documents exchanged at that time.

I found the Complainants recollection of events to be very inconsistent and at odds with the clarity of the Respondents recall. He did not submit any documents at hearing and was encouraged to do so.

I accept that instructions were issued on 23 August by the respondent which were not complied with by the complainant. I cannot establish that he attended work that day under the Respondent instructions. The emails point to his presence at his house that day.

In addition, I have found that taking account of the overarching phone repayment plan agreed by the complainant, all monies owed in commission were discharged by the respondent.

Based on the evidence adduced, I have found the claim to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints 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 decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

CA -00026235-001

The first aspect of the complaint on 2 days annual leave linked to June 2018, on cessation of employment is not well founded. The second part on snow days is out of time.

CA-00026235-002

I have found the complaint to be not well founded.

Payment of Wages