ADJ-00016230

Complainant

Respondent

Anonymised Parties

Receptionist

Employer

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-00021101-001

12/08/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991, and has submitted that the Respondent Company has not paid the Complainant (CA-000211101-001)

The Complainant was employed as a Receptionist by the Respondent Company on the 21st March 2018.

The Complainant attended for an interview on or about the 29th January 2018 for the position as a part-time receptionist with the Human Resources (HR) Manager for the Respondent Company. The Complainant was informed on the 20th March 2018 that she had been successful in her application and was to start employment the following day.

In the course of her evidence, the Complainant stated she was informed at the interview that her rate of pay would be €12.68/hour.

The Complainant decided to leave this position on the 30th March 2018 as it was not a suitable position for her. The Complainants decision to leave included she was not given any training, long working days and no contract was provided. At the time of her leaving this employment, the Complainant had worked 46 hours over a five day period.

Following the Complainants departure from the Respondent Company she attended at the Department of Social Welfare. The Complainant was informed she had to get the Respondent Company to complete the appropriate form in relation to her payment at the time of this employment. Upon forwarding said form to the Respondent Company, the HR Manager replied, by email on the 3rd May 2018, that they would not be paying the Complainant for her time there or returning the aforementioned form as she was not employed at the Respondent Company and was training for the position.

The Complainant stated the Respondent Company sent a letter to the Department of Social Welfare indicating the dates and times she worked at the Company and that it was unpaid training. The Complainant is adamant that she was not informed that this position was unpaid either at the time of her interview or in the course of her employment. Further, she never agreed that this position was to be unpaid.

The Complainant asked for confirmation, via text message, from the HR Manager whether this position was unpaid. The Human Resources Manager indicated she was unable to confirm this until she had talked to the owner of the Respondent Company. Eventually ,she replied that it had been confirmed that she would not be paid for the duration of this employment.

Ultimately, the Complainant following advices from her local Department of Social Welfare and her personal advisor at Turas Nua/Job Path forwarded this Complaint to the Workplace Relations Commission and this was received on the 12th August 2018.

The Complainant took up alternative employment on the 13th May 2018

There was no appearance on behalf of the Respondent Company.

The Workplace Relations Commission informed the Respondent Company of the date of the hearing of this matter on the 19th November 2018. The HR Manager informed the Workplace Relations Commission by email on the 5th December 2018 that, as an employee, she has no legal authority to represent the Respondent Company in any mediation or hearing process regarding any complaint or dispute and would therefore not be attending on the assigned hearing date of the 20th December 2018.

In the circumstances of this matter, I have carefully listened to the evidence tendered by the Complainant in the course of this hearing.

Section 5 of the Paymentof Wages Act, 1991 provides:

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.

(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, an

(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

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

Further, Section 6 of the Payment of Wages Act, 1991 provides:

6.—(1) An employee may present a complaint to a rights commissioner that his employer has contravened section 5 in relation to him and, if he does so, the commissioner shall give the parties an opportunity to be heard by him and to present to him any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

(2) Where a rights commissioner decides, as respects a complaint under this section in relation to a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—

 (a) the net amount of the wages (after the making of any lawful deduction therefrom) that—  

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

In the circumstances of this case, I am satisfied based on the uncontroverted evidence of the Complainant, that the Respondent Company is in breach of the Payment of Wages Act, 1991, in that they failed to pay the complainant her agreed salary for the period between the 21st March 2018 and the 30th March 2018.

Accordingly, I have decided that the Complaint (CA-0021101-001) is well founded.

I find that the Complaint (CA-00021101-001) is well founded and I direct that Respondent Company to pay €1,160.00 to the Complainant.

Wages