Complainant

Respondent

Anonymised Parties

A Property Inspector

A Property Solutions Company

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-00027494-001

03/04/2019

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

CA-00027494-002

03/04/2019

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

CA-00027495-001

03/04/2019

The Complainant was employed by the Respondent as a Property Inspector from 6 November, 2018 until 6 February, 2019 when his employment was terminated. The Complainant worked an average of 40 hours per week and was paid a gross monthly salary of €2,167.00.

The Complainant claims that the Respondent made unlawful deductions from his wages in relation to outstanding wages and payment in lieu of notice 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.

The Respondent informed the WRC by e-mail on 6 June, 2019 that the company which employed the Complainant had ceased trading and is insolvent and therefore, the Respondent would not be in attendance at the Hearing on 16 July, 2019. The Respondent did not make any submissions in relation to the aforementioned complaints.

CA-00027494-001 - Complaint under the Payment of Wages Act 1991

The Complainant’s contract of employment provides for payment in arrears of his salary on the 21 day of each month and that he was required to work a month in hand. The payment reference period is stipulated as running from the 15 day to the 14 day of the following month. The Respondent was contractually obliged to remunerate the Complainant on 21 December, 2018 for work carried out from 6 November, 2018 to 14 December, 2018 and any shortfall in salary to him on 21 December, 2018 constituted an unlawful deduction contrary to the Payment of Wages Act 1991.

The Complainant submits that the Respondent assured him during a telephone call on 5 December, 2018 that it would abide by the terms of his contract by paying his correct salary on 21 December, 2018. The Complainant was paid only €522.38 on 20 December, 2018 by the Respondent. The Complainant has calculated that his net monthly salary should have been €1,8161.00. However, the Respondent furnished him with a payslip for the month ending 15 January, 2019 for a net amount of €1,692.51. The Complainant disputes the calculation of the amount paid to him.

The Complainant submits that he worked from 6 November, 2018 to 6 February, 2019 on a gross monthly salary of €2,167.00. The Complainant has been paid a total of €2,214.89 which amounts to an approximate value of one month and one week’s work. The Complainant submits that he is owed a net salary of €4,300.00 which equates to a gross salary of €5,375.00.

The Complainant submits that he has attempted to resolve matters amicably and the Respondent e-mailed him on 25 February, 2019 assuring him that he would send him proof of a transfer of funds in discharge of his outstanding salary. The Respondent subsequently sent the Complainant a screenshot of an online transfer which had been processed for an amount of €825.00. There were no bank details disclosed in the screenshot and to date, the funds have not been deposited in the Complainant’s bank account.

CA-00027494-002 - Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997.

The Complainant submits that his contract of employment provided that his holiday entitlements would accrue at a rate of 8% of hours worked. The Complainant contends that he worked 25 days during 2019 and that he accrued an entitlement of 16 hours pay in respect of hours worked which equates to €200 in outstanding holiday pay on the cessation of his employment.

CA-00027495-001 - 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 Respondent did not attend the hearing and did not provide any submissions or evidence in response to the complaints under the Payment of Wages Act 1991 and/or the Organisation of Working Time Act 1997.

CA-00027494-001 - Complaint under the Payment of Wages Act 1991

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 his complaint to the Workplace Relations Commission on 3 April, 2019. By application of the time limit provided for at 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 complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 4 October, 2018 to 3 April, 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 6 February, 2019 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 an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to unpaid wages which he claims were due to him on the termination of his employment 6 February, 2019. 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.

Based on the uncontested evidence of the Complainant, I find that the sum of €4,875.00 was “properly payable” to the Complainant in respect of unpaid wages within the meaning of Section 5(6) of the Act on the termination of his employment (This sum does not include the amount of €500 which was payable to the Complainant in respect of unpaid statutory notice entitlements on the termination of his employment and which has been dealt with separately in relation to Complaint Ref. No. CA-00027495-001).

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

CA-00027494-002 – Complaint under the Organisation of Working Time Act 1997

The Complainant claims that the Respondent failed to pay his outstanding annual leave entitlements on the termination of his employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Complainant claims that he did not receive payment in respect of annual leave accrued during 2019 on cessation of his employment.

The Complainant referred his complaint to the Workplace Relations Commission on 3 April, 2019. By application of the time limit provided for at 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 complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 4 October, 2018 to 3 April, 2019.

Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. Therefore, in accordance with the provisions of Section 23(1)(b)(i) of the Act I am satisfied that any outstanding annual leave accrued during the annual leave year 2018/2019 (i.e. 1 April, 2018 to 31 March, 2019) is covered by this complaint.

The Complainant adduced evidence that he had worked 200 hours during 2019 and therefore had accrued an entitlement to payment for 16 hours in respect of annual leave entitlements on the cessation of his employment (i.e. 8% of 200 hours worked during 2019 = 16 hours x €12.50 per hour = €200.00). Having regard to the uncontested evidence of the Complainant, I find that the complaint is well founded and that he was entitled to payment of €200.00 in respect of accrued annual leave entitlements on the cessation of his employment.

CA-00027495-001 - 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. Having regard to the uncontested evidence of the Complainant, I am satisfied that the Complainant was not afforded his statutory period of notice prior to the termination of his employment or payment in lieu thereof.

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 unpaid statutory notice entitlements is well founded.

CA-00027494-001 - Complaint under the Payment of Wages Act 1991

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

I find that the Respondent made an unlawful deduction 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 sums of €4,875.00 subject to any lawful deductions, in respect of unpaid wages.

CA-00027494-002 - Complaint under the Organisation of Working Time Act 1997

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

In accordance with the provisions of Section 27 of the Act, I declare that the complaint is well founded and that the Respondent has contravened the Complainant’s annual leave entitlements contrary to Section 23 of the Act. I order the Respondent to pay the Complainant:

-          €200.00, subject to any lawful deductions, cesser pay in respect of annual leave entitlements accrued during the annual leave year 2018/19, and

-          €100.00 in compensation for the contravention of Section 23 of the Organisation of Working Time Act 1997.

CA-00027495-001 - Complaint under the Payment of Wages Act 1991

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

I find that the Respondent made an unlawful deduction 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 sum of €500.00, subject to any lawful deductions, in respect of unpaid statutory notice entitlements on the termination of his employment.

Payment of Wages Act 1991 – Section 5 – Unlawful Deductions – Unpaid Wages – Pay in lieu of notice – Organisation of Working Time Act 1997 – Annual Leave – Section 19 – Cesser pay – Section 23