ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013910

Parties:

Complaint(s):

Date of Adjudication Hearing: 1/11/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:                                                    

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

Background:

The complainant was employed as an electrician from 8th May 2017 and where he submitted that his contract was terminated without notice on 5th January 2018. The complainant is seeking compensation for unpaid wages, payment for his notice period, and payment for his untaken annual leave which was due to him at the cessation of his employment. The complainant was paid €840 Euro gross per week.

Summary of Complainant’s Case:

The complainant submitted that he was employed as an electrician on 8th May 2017 and received a contract of employment.

The Complainant submitted that on 4th January 2018, late in the evening, he received a text from the Respondent advising him of his work location for the following day. The Complainant advised on 5th January 2018 that he contacted the Respondent regarding the work location at which time he was advised that his employment would cease with immediate effect and that he would receive his P 45.

The Complainant maintained that he was due one week’s pay of €840 Euro as he was not paid for his last week’s work. He also maintained that he was due two weeks’ notice pay amounting to €1,680 in accordance with his contract of employment, and that he was entitled to payment for 10 days annual leave for leave accrued that he did not receive, and this amounted to €1,680.

Summary of Respondent’s Case:

The Respondent submitted that the Complainant stated employment on 12th May 2017 and finished work on 31st December 2017. The Respondent stated that the Complainant had received 2 verbal warnings for poor workmanship and slow work during his last week of work. The Respondent also advised that there was poor workmanship on 3rd January 2018 where the client would not pay the Respondent for the work completed by the Complainant and this had to be done again on 6th January 2018.

The Respondent denied that the Complainant was due annual leave. Based on his start and finish date the Respondent argued that the Complainant was entitled to 13.5 days annual leave. The Respondent submitted that the Complainant was granted 1 day’s annual leave on 29th May 2017, 3 days annual leave from 4th to 6th December 2017, 5 days annual leave from 18th to 22nd December 2017 and a further 3 days annual leave from 27th to 29th December 2017. The Respondent advised that the total amount of agreed annual leave amounted to 12 days, all of which the Complainant was paid. The Respondent maintained that the Complainant also was paid for three days sick leave on 26th June 2017, 11th August 2017 and 19th September 2017, and he was also was paid for two days leave where he text his non-attendance on 17th and 31st October 2017. The Respondent contended that the Complainant also took annual leave on 2nd and 5th January 2018 and the Respondent argued the Complainant was not entitled to be paid for this leave on the basis the Complainant had received more than his annual leave entitlements. It was during this week the Complainant received two warnings.

The Respondent provided sample payslips for the Complainant from 12th May 2017 to 18th August 2017.

The Respondent advised there were no formal leave records.

Findings and Conclusions:

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

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

in the case of a deduction, the employee has given his prior consent in writing to it.

The Complainant was not paid for his last week of work, albeit he appears not to have attended work for two of the days. Notwithstanding the non-payment of this week’s work, for the days attended by the Complainant, amounts to an unauthorised deduction, and where there is a dispute regarding the attendance on the other two days. As the Respondent failed to provide accurate attendance and working time records, I find that the Complainant was unlawfully deducted a week’s pay for the period 1st to 5th January 2018 and therefore find he is entitled to be paid for that week.

With regard to the non-payment of the Complainant’s annual leave entitlements, it is acknowledged that the parties disputed the amount of actual leave and days of non-attendance that the Complainant was paid for. In the absence of any formal records it is not possible to adduce whether the Complaint took the amount of leave that is alleged by the Respondent, and whether he was paid for absences and sick leave. His contract of employment states there is no sick pay. On balance I am satisfied that the Complainant did enjoy periods of annual leave, and was paid for his sick leave. In light of the absence of formal leave and working time records being provided by the Respondent I am compelled to give the Complainant the benefit of the doubt regarding his annual leave and whilst he has contended he is due to be paid for 10 days leave, I find that he is more likely due five days annual leave. I therefore find that the Complainant has made an unauthorised deduction of five day’s pay from the Complainant amounting to €840.

I also find that in accordance with the Complainant’s contract of employment he was entitled to 2 weeks’ notice. As his employment was terminated without notice I find that he is entitled to his two-week’s pay in lieu of notice amounting to €1,680.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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 make a decision in relation to a contravention under Section 5 of that Act. Having heard the evidence submitted by the parties, and in accordance with Section 6 of the Payment of Wages Act 1991, as summarised above, I find the complaint is well founded.

Section 6 of the Payment of Wages Act 1991 provides that upon finding a complaint well-founded, an Adjudication Officer may direct an employer to pay an employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding: “(a) the net amount of the wages (after the making of any lawful deduction therefrom) that- related to a payment… to the employee in respect of the week immediately preceding the date of payment,

As I have found the complaint is well founded as respects the deductions of wages for one weeks work from 1st to 5th January 2018 I direct that the Respondent pay the Complainant €840 after the making of any lawful deductions.

As I have found that the Complainant was not paid for one week’s annual leave entitlement I direct that the Respondent pay the Complainant €840 after the making of any lawful deductions.

As I have found the Complainant did not receive his two weeks’ notice in accordance to this contrat of employment, I also direct the Respondent to pay the Complainant compensation of €1,640 after the making of any lawful deduction.

Dated:   28th March 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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