Complainant

Respondent

Anonymised Parties

A Sales Executive

A Respondent

Representatives

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-00022965-001

31/10/2018

The Complainant referred a complaint to the Workplace Relations Commission on the 31st of October 2018 alleging the Respondent had breached the Payment of Wages Act, 1991 – 2015.

A hearing of the complaint took place on the 4th of March 2019.   Both parties were notified of the hearing date. The respondent prior to the hearing made a last-minute request for an adjournment on the basis that an investment into the business was due to be completed which it submitted would enable the business to meet its commitments including the wages owed to the complainant. This last-minute adjournment request was not replied to and was not granted.   No further communication was received from the respondent and the respondent did not attend the hearing. No reasonable explanation was given for the non-attendance of the respondent and so I proceeded with the hearing.

The complainant submits that

He was let go from his job on the 5/9/18 as his employer stated that he could not afford to pay him,

His employer repeatedly stated that he would pay him but has failed to do so,

The amount outstanding is €770.75.

There was no appearance by or on behalf of the respondent at the hearing and no reasonable explanation was provided for the non-attendance.

Section 1 of the Payment of Wages Act provides for the following definition of “wages”

“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) of the Act provides:

“(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 any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by 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.”

Section 5(6) of the Act provides: —

(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.

In addition, in making my decision I am mindful of the observations of Ms. Justice Finley Geoghan in the case of Sean Senan Histon -v- Shannon Foynes Port IEHC292 are applicable wherein she stated (in considering Section 5 of the Payment of Wages Act 1991 :-

“It does not appear to me arguable that a failure to pay the Plaintiff any part of his salary is not a deduction from his salary within the meaning of Section 5 of the Act of 1991”

In considering this matter I must decide whether or not the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991 and whether the claimed unlawful deduction was in fact “properly payable” to the Complainant.

The complainant advised the hearing that the respondent had failed to pay him for work carried out and that he is owed wages equivalent to 8 days work.   The complainant told the hearing that the respondent had texted him prior to the hearing stating that he had applied for an adjournment of the hearing on the basis that an investment into the business was due to be completed in the following ten days which he submitted would enable the business to meet its commitments including the wages owed to the complainant.    Having carried out appropriate checks I am satisfied that this request was submitted by the respondent to the Commission at the last minute and that it had not been replied to or granted in advance of the scheduled hearing.     I am also satisfied that the respondent received notification of the hearing arrangements and that no reasonable explanation was given for the non-attendance of the respondent at the hearing.

The complainant told the hearing that this was typical of the respondent seeking to put things off and he stated that he had on a number of occasions been assured by the respondent that his outstanding wages would be paid but it had never happened.    The complainant advised the hearing that the respondent had failed to pay him for work carried out and that he is owed wages equivalent to 8 days work.   The complainant told the hearing that the amount owed to him is €770.75 in wages.

I am satisfied, given the evidence adduced and based on the balance of probabilities that this amounts to an unlawful deduction in respect of wages which were properly payable to the complainant.

Having considered the totality of the evidence adduced, I declare that the complaint is well founded, and I consider it reasonable in these circumstances to award the complainant the total amount of the unlawful deduction, i.e. a total of €770.75.

I find the complaint to be well-founded and I direct the respondent to pay the complainant the amount of the unlawful deduction, i.e. a total of €770.75.