ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012376

Parties:

	Complainant	Respondent
Anonymised Parties	A Swimming Teacher	A Swimming Academy

Complaint(s):

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-00016400-001	19/12/2017

Date of Adjudication Hearing: 07/03/2019

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant was seeking payment of wages and holiday pay.

Summary of Complainant’s Case:

The Complainant was employed as a part time Swimming Instructor.

She took a days leave due to personal circumstances and the Respondent then denied her payment of 600 Euros and a days holiday pay. She resigned from her position as she there was no cover for her time off.

The Complainant is seeking payment of unpaid wages and holiday pay.

Summary of Respondent’s Case:

The Complainant was employed from August 8th 2017 to November 2nd 2017.

She resigned effective November 3rd 2017.

The Complainants contract of employment states the following “ The Employee is only paid for hours of work completed. The Employer reserves the right to alter these working hours from time to time. The Employee will be allocated a swimming course usually lasting 6-10 weeks and each course must be completed in its entirety. If for any reason, the Employee cannot complete the course, then they will not be paid for the course or any portion of the course they have completed. It is at the discretion of the Employer to decide in circumstances whether an Employee will be reimbursed for part completion”.

The purpose of the above clause is the protect the Respondent in the event that a course is not completed and it becomes necessary to refund participants.

The Complainant was paid for the course she ran mid week but as she did not complete the Saturday course she was not paid for this Saturday time as per the above contractual clause.

Participants had to be reimbursed and customers were not happy that the course had to be cancelled due to the Complainant not completing the course.

The Complainant was aware of and had agreed to this clause.

The funds claimed by the Complainant are not properly payable as per the Act and her claim should fail.

Decision:

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

The claim for holiday pay was withdrawn at the Hearing.

Section 5 of the Payment of Wages Act stipulates that wages must be “properly payable” to be eligible to be paid.

As the Complainants contract was quite specific that she would not be paid unless the course was completed the amount she has claimed therefore was not “properly payable” as the course was not completed. The reason for the course not being completed is not relevant as the clause specifically states “If for any reason, the Employee cannot complete the course, then they will not be paid for the course or any portion of the course they have completed. It is at the discretion of the Employer to decide in circumstances whether an Employee will be reimbursed for part completion”. Therefore the Complainant has legally agreed she is not entitled to be paid the amount claimed unless the course was completed. The claim fails accordingly.

Dated: 30/05/19

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Non payment of wages