ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A driver | A Haulage company |
Representatives |
| Company Director |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00026557-001 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless
The deduction is required by Statute or Instrument
The Deduction is required by the Contract of employment
The employee has given his prior consent in writing
Section 5 (2) The employer shall not make a deduction in respect of any Act or omission of the employee
It is noted in a preliminary way that per Section 4 an Employer shall give or cause to be given to an employee statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom
In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 25th of February 2019 was submitted within the time allowed.
Background:
The Complainant issued a workplace complaint form on the 25th of February 2019. The Complainant had a single complaint against his previous employer, namely the failure by his employer to pay his Annual Leave entitlements for 2018. |
Summary of Complainant’s Case:
The Complainant left his employment in December 2018 having only taken 11 of his 20 day entitlement to Annual Leave for 2018. The Complainant is looking for payment of the Annual Leave. |
Summary of Respondent’s Case:
The Respondent Director presented with evidence which she said proved that the Complainant had taken further days of Annual Leave during the year. |
Findings and Conclusions:
I have carefully listened to and I have considered the evidence adduced by both parties herein. The Respondent engaged the Complainant as a driver for circa seventeen months from July 2017 to December 2018. There was no formal statement of the terms of employment provided though the Complainant clearly understood his weekly rate of pay in the event that he worked a full five day week. From time to time, if there was no work to be assigned to the Complainant he would not work and consequently would not be paid. The Complainant was paid on a weekly basis and I have studied the payslips provided which show a consistent pattern of pay both gross and nett. In 2018 it is clear from the payslips that the Complainant was paid for, and presumably too, 11 days of Annual Leave. Since leaving his employment (by his own choice) in early December 2018 the Complainant has looked for the balance of his Annual Leave entitlements. It is agreed that the Complainant is contractually entitled to 20 days of Annual Leave. The Respondent witness showed me the handwritten workplace diaries which she said demonstrated that there were further days that the Complainant did not work but was paid for Annual Leave and that these days are additional to the days already disclosed in the printed payslips already referred to herein. It should be noted that I was only shown selected and photocopied pages from the workplace diaries so that it was difficult for me to understand and/or reconcile that which the Respondent witness was telling me with the concrete evidence disclosed in the payslips. The Respondent did not challenge the veracity of the payslips only that there was additional information not contained in them. On balance I find I am inclined to accept the Complainant’s evidence as contained in the payslips provided. There is a clear shortfall in the Annual Leave expectations. To the Employer’s credit, at the time of the employee leaving the workplace two days Annual Leave were paid. This was in addition to the 11 already disclosed in the payslips. The implication of this is that there are up to 7 days lost to the Complainant. I further note that the Complainant’s last working week was week no 49 in the year 2018 which has the effect of slightly reducing the Annual Leave entitlements. There are therefore six days lost Annual Leave.
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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.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00026557-001 I direct that the Employer pay to the Employee the sum of €690.00 |
Dated: 7TH May 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
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