Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

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-00021552-001

04/09/2018

The Complainant said that she is owed €206.28 for 20 hours worked.

The Respondent said the Complainant spent 16 hours training and is only owed €30.80.

The Complainant is a polish national now living in Ireland. She said that she started working with the Respondent on 25 July 2018 and worked for 3 days, where she accrued 20 hours in total. She said that she was employed as a cleaner on €9.55 per hour. She said that she did not receive payment for that work.

The Complainant said that she is currently owed €206.28 for hours worked plus holiday pay. She had asked the Respondent’s owner, Ms. A, several times to pay her entitlement. She said that the Respondent has not paid what she is owed and has not engaged with her since.

The Complainant said that the job was advertised, she applied and got the job. She said that arrangements were made where she was collected for work by one of the Respondent’s managers/supervisors on the first day and she was brought to a shop that had to be cleaned. She worked there from 8 am until 5:30 pm (9 hours 30 minutes). She said there was no specific training provided, she was told to clean.

She said the following day she was again picked up for work and worked from 9am until 2:30pm (5 hours 30 minutes) in a factory, again there was no training, she did what she was told. On the third day she worked from 3pm to 8pm for five hours after which she said that she was sick and texted Ms. A who replied ok. At the same time, she was offered another job that was more convenient, so she informed Ms. A that she was leaving by text but got no answer in return. She said that she waited a few days and texted again asking how she would get the money that was owed to her. She was told that she was owed just €30. She said that her friend rang Ms. A and tried to get her money on her behalf but that was not working out.

The Complainant in reply to the Respondent, at the hearing, said that she did not agree to work for free or in return for supervised training. She said there was no training in how to use cleaning products and chemicals as was suggested by Ms. A. She was not supervised/trained as was suggested by Ms. A, she had to ask her fellow workers what she had to do. Her job was to use one/two cleaning products, she was mainly polishing, dusting and vacuuming. Nothing more complicated than that.

The Respondent said that it has over 10 years of cleaning experience and provides a range of cleaning services. It said that due to the specific nature of the companies work and its reputation, it carefully selects all of its employees. It said that it also runs a certified two-week training course for €1,200 for people looking for a job in the cleaning industry.

The Respondent said that the Complainant has never been employed by it. She applied for a job on 23 July 2018, she was an inexperienced adult worker with no work experience in the cleaning industry. She has no driving licence and speaks basic English. Ms. A said that she wanted to help the Complainant, as she had told her that she could not find any job and would be forced to return to Poland if she did not get work.

Ms. A said that she has had to invest a lot of time and money and her employee’s time into workers without any experience who turn out not to be fit for work or give up after a short time. Ms. A said that she offered the Complainant a job if she successfully passed a two-week trial including 16 hours basic training for which she would not have to pay her for. She claims that was the arrangement that was agreed at her interview.

Ms. A said that the Complainant lied to her. She did not carry out her duties and the quality of her work was very poor, even the basic activities she performed had to be redone.

Ms. A said the Complainant’s level of English was so bad that her trainer had a problem communicating with her and therefore the whole team’s performance suffered as a result. She said that she received an email from a customer, where the Complainant has worked, who was very disappointed with the service, and the client demanded a discount and withdrew as a client thereafter.

Ms. A said that the Complainant, realising that she could not cope with the work by the third day, sent her a text message apologising for the trouble caused, stating that she was sick and was returning to Poland.

Ms. A said that she asked the Complainant to send on her Bank account details so that she could make a transfer for €30.80 for the 3.5 hours (19 hours 30 minutes worked less 16 hours for training) worked as was agreed at the beginning. Ms. A said the Complainant’s boyfriend called her and demanded €200 and she received another call from a woman who started insulting and threatening her, which she reported to An Garda Síochána.

The Respondent said that the Complainant was well informed about the conditions of employment, the trial period and training period. She said that she has no rights to look to be paid for training time.

The Relevant Law

Section 1 of the Act states,

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purpose of this definition, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or the Government, as the case may be, and an officer or servant of a local authority for the purposes of the  Local Government Act 2001 (as amended by the Local Government Reform Act 2014) , a harbour authority, a health board or a member of staff of an education and training board  shall be deemed to be an employee employed by the authority or board, as the case may be;

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

“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) 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.

I note here that there is a difference of opinion regarding the “training agreement”. The Respondent is claiming that there was a training programme in place, which the Complainant did not have to pay for. Whereas the Complainant said she got little or no direction and was not on a training programme. She said she simply was working like all the other cleaners on site.

I note that Section 5(2) of the Act sets out the conditions according to which an employer may make a deduction from an employee’s wages:

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

There was much debate about the training and the quality of the Complainant’s work performance. There was much discussion about who said what, and what excuses were given for leaving the job after just 3 days. There was much discussion about the level of training required for the post and who had to pay for that. I have been presented with divergent views on these points. These matters are peripheral to the core issue of the case, which to me centres around whether the Respondent’s failure to pay or make a ‘deduction’ from her wages for the three days worked was a breach of the Act in this instance.

I note that relevant case law in this area was an Employment Appeals Tribunal’s decision in Ryanair Limited v Alan Downey, [2006] 17, ELR 347, established that training undertaken by an employee in the course of employment enhances their qualifications and remuneration and, on that basis, may be considered as the provision by an employer to an employee of a “service” within the meaning of sub-section 2(b) above. This permission is qualified by sub-section (2)(b)(ii), which requires that “the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee).”

In the instant case, the evidence is not compelling that there was any training programme in place. The Complainant’s evidence was that her three days were spent polishing, dusting, vacuuming and she used one or two cleaning products. I cannot see how this training would quality as a “service” within the meaning of sub-section 2(b) above. Notwithstanding, I should state that the deduction of €206.28 from her wages, all her wages, leaving her with no wages, is not in my view the intention of the Act. The legislation clearly stipulates that a deduction must be “fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee).” In the circumstances of this case this treatment was neither fair or reasonable.

I do not accept that there was such a training programme in place and I prefer the Complainant’s evidence here.

Having heard the evidence from both sides I am satisfied that the Complainant worked for the Respondent for 20 hours as a cleaner. I am satisfied that the Complainant was fully engaged during that 20-hour period. Notwithstanding the Respondent’s contradictory claims which include that it provides a substantial training programme for workers that come to work for it and the cost of which must be borne by employee; that 16 hours free supervised training was agreed between the Complainant and the Respondent, that the Complainant was simply watching and learning; the Complainant was engaged in work with the Respondent as a cleaner and is entitled to be paid at the appropriate rate.

I am satisfied that failing to pay the Complainant for her work is a contravention of Section 5 of the Payment of Wages Act, 1991, and is an unlawful deduction made from her wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where I find that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, I can direct that the employer pays to the employee an amount which is subject to the limits set out in Section 6 of the Payment of Wages Act 1991.

I have concluded that this complaint is well founded, and I decide therefore that the Respondent shall pay the complaint €206.28 in respect of wages for 20 hours worked and holiday pay not paid to her at the termination of her employment.

Payment of Wages Act – cleaning service – training - not paid – well founded.