Complainant

Respondent

Anonymised Parties

A Delivery Driver

A Delivery Company

Representatives

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-00025199-001

22/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00025199-002

22/01/2019

The Complainant worked for the Respondent from 2nd July 2018 to 19th December 2018. He submitted his claims to the WRC on 22nd January 2019.

At the outset of the adjudication hearing, it became apparent that there was no appearance by or on behalf of the Respondent. I verified that a letter notifying Respondent of the time, date and venue of the adjudication hearing was issued to the Respondent on 6th March 2019. The Respondent did not engage with the WRC at any stage prior to the hearing, it did not apply for a postponement and did not indicate any difficulties attending the hearing. I waited some time to accommodate a late arrival. Having taken these steps, I proceeded with the adjudication hearing in the absence of the Respondent.

The Complainant submits that his employment with the Respondent was broken into two spells from 2nd July 2018 to 24th August 2018 and subsequently from 1st October 2018 until 19th December 2018 when his employment was terminated suddenly. The Complainant submits that he was paid €80 net per day. The Complainant submits that he was paid cash, usually on the 10th working day of each month. The Complainant submits that November wages were due on 14th December 2018. When there was no payment and no explanation forthcoming on 18th December 2018 the Complainant submits that he asked a fellow employee if he had been paid. He confirmed that he had been paid on the 14th. The Compliant claims that he confronted the Respondent only to be told that he would be withholding payment of his wages until he could get a quote for the repair of damage done to the van the Complainant was driving. The Complainant asserts that this was an accidental damage done in execution of the Complainant’s role as delivery driver. The Respondent took the van and said he would have it assessed that day. The Complainant submits that on the next day he reported for work as usual when upon arrival the Respondent handed him an envelope containing November’s wages with a €250 deduction from it saying that he got a quote of €1,500 for the repairs to the van and that he would pay the Complainant the balance of his wages, less the full cost of repairs, at a future date. The Complainant claims that the Respondent asserted that he was fully responsible for any and all damage done to the van. The Complainant objected to this and requested the Respondent to produce the document he had signed accepting such responsibility and giving the Respondent permission to make deductions from his wages. No such documents were forthcoming. The Complainant claims that the Respondent told him: “Do you think you’re the only person here having their wages withheld because of damage to vans”. The Complainant claims that following this exchange his employment was terminated.

The Complainant submits that he tried to contact the Respondent and relate his grievance in an attempt at reconciliation. To this end he composed a text message expressing said grievance and sent it at 10.25am on 19th December 2018 only to find that the Respondent had blocked his number.

The Complainant submits that the Respondent made an unauthorised deduction of €250 from November’s wage packet. The Complainant exhibited an envelope given to him by the Respondent upon the termination of his employment which is marked net pay of €1,760 (22 working days at €80 per day) with the deduction of €250. He also claims that he did not receive €1,040 in outstanding wages due for 13 days he worked in December (at €80 per day).

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

Section 1 of the Payment of Wages Act, 1991 defines “wages” as follows:

“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…

Section 5. “Regulation of certain deductions made and payments received by employers

(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, 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

(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.”

Section 5(6) of the Act states as follows: “(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.”

Based on the uncontested evidence of the Complainant, I find that the Complainant worked for the Respondent from 2nd July 2018 to 24th August 2018 and subsequently from 1st October 2018 until he was dismissed on 19th December. I further find that the Respondent deducted €250 from the Complainant’s November wages and that the Complainant’s full wages for December was withheld. Applying the above provisions to the instant case, the withholding of the Complainant’s wages and the deduction were not authorised nor required by statute. Neither did the Complainant consent to same. These amounted to unlawful deductions as per the Payment of Wages Act.

Based on the uncontested evidence of the Complainant I find the complaint to be well-founded and I direct the Respondent to pay the Complainant the sum of €1,290 subject to all lawful deductions.

The Complainant submits that he did not receive his annual leave entitlements. The Complainant submits that between 2nd July 2018 and 19th December 2018 he worked 98 working days for the Respondent and is therefore entitled to 7.5 days of annual leave at the rate of €80 per day net.

There was no appearance by or on behalf of the Respondent and it did not oppose the complaint.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 22nd January 2019 and therefore the cognisable period that may be investigated is 23rd July 2018 to the date of termination. I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. The Complainant worked for the Respondent between 2nd July 2018 and 19th December 2018.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(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.”

“23. Compensation on cesser of employment

(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.”

Based on the uncontested evidence of the Complainant, I find that he worked 98 days for the Respondent and is therefore entitled to 7.84 days annual leave at the rate of €80 net per day.

Based on the uncontested evidence of the Complainant I declare this complaint well-founded. I direct the Respondent to pay the Complainant €627.20 net for the economic loss in respect of the annual leave. I also direct the Respondent to pay the Complainant an additional €500 in compensation for the breach of the Complainant’s rights under the Act.

Deductions – annual leave