Complainant

Respondent

Anonymised Parties

A Kitchen Porter

A Coffee Shop/Restaurant

Representatives

In person

Did not attend

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-00019532-001

31/05/2018

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

CA-00019533-001

31/05/2018

The complainant was employed by the respondent from 25th September 2017 until his resignation on 29th April 2018. The complainant worked 30 hours per week as a Kitchen Porter and was paid €10 gross per hour. The complaint relates to the non-payment of €500.87 which the complainant contends was not paid to him in respect of annual leave and bonus entitlements.

The complainant stated that he was not provided with any annual leave while employed by the respondent and was owed €658.87 based on his own calculations of the hours he worked during that time. The complainant stated he was paid €158 in respect of holiday entitlements on 21st May 2018 leaving an outstanding balance of €500.87 in respect of outstanding holiday pay and bonus entitlements.

The respondent did not attend the adjudication hearing and was not represented.

It is unfortunate that the respondent did not attend the adjudication hearing to put forward its position on the complaint.

Annual Leave Entitlements

Section 19(1) of the Organisation of Working Time Act, 1997 provides as follows:

19.(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

Based on the uncontested evidence of the complainant, I find that the complainant worked a total of 870 hours while employed by the respondent. Based on the provisions of the legislation, the complainant had an entitlement to 69.6 hours of annual leave at €10 per hour. The complainant stated that he was paid €158 in respect of annual leave Accordingly, the complainant is owed €538 in respect of annual leave entitlements.

As the complainant was unable to provide any evidence in relation to his entitlement to a bonus payment, I do not find in favour of the complaint regarding this issue.

I declare that the complaint is well founded in part. The respondent is directed to pay the complainant €538 in respect of his unpaid annual leave entitlements and an additional €250 in compensation for the infringement of his rights under the legislation.

The complainant contends that he did not receive any salary payment for working from 23rd April 2018 until 29th April 2018. The complainant confirmed that he resigned from his employment on 29th April 2018 when his hours were reduced to two hours per day. The complainant stated that he received €158 on 21st May 2018 in respect of annual leave entitlements but did not receive any payment for the 25 hours he worked from 23rd April 2018 to 29th April 2018. The complainant stated that he is owed €250 in respect of his complaint.

The respondent did not attend the adjudication hearing and was not represented.

It is unfortunate that the respondent did not attend the adjudication hearing to put forward its position on the complaint.

The complainant gave evidence in relation to his complaint. I find the complainant to be an honest and credible witness. On the basis of the complainant’s uncontested evidence, I accept that he was not paid for the work he carried out for the respondent during the week in question.

The Applicable Law

Section 5(6) of the Payment of Wages Act, 1991

(6) Where—

(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.

I am satisfied, based on the complainant’s uncontested evidence that he was not paid for the work he carried out for the respondent from 23rd April 2018 until 29th April 2018. Accordingly, I declare that the complaint is well founded.

The respondent is directed to pay the complainant €250 in respect of unpaid wages from 23rd April 2018 until 29th April 2018.

Unpaid Wages, Annual Leave entitlements