ADJ-00022155

Complainant

Respondent

Anonymised Parties

Manager

Restaurant

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-00028973-001

11/06/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029380-001

28/06/2019

The Complainant commenced employment with the Respondent, a restaurant, on 7 January 2019, in the role of General Manager. The Complainant’s employment ended on 7 May 2019.

On 11 June 2019 the Complainant submitted a complaint to the WRC, under the Payment of Wages Act, 1991, in respect of outstanding monies due to him from his employment with the Respondent.  The complaint reference for this claim is CA-00028973-001.

On 16 June 2019, the Complainant submitted an additional claim, under the Minimum Notice and Terms of Employment Act, 1973. The complaint reference for this claim is CA-00029380-001.

Both claims have been combined under the same adjudication reference.

In advance of the oral hearing into his complaints, the Complainant submitted the following written submissions:

CA-00028973-001:

According to the Complainant’s submission, he provided services to the Respondent, prior to taking up his formal, contracted position on 7 January 2019. The Complainant submitted that the value of the services provided in this regard amounted to €7,000.  It was further submitted that the Complainant provided the Respondent with the option of having this amount included as salary, to be paid over the duration of his employment, or to be paid as a lump sum.

The Complainant submitted that the Respondent opted to make the payment as a lump sum and that it was agreed between the parties that the amount would be paid in two moieties, with the first half being paid in February 2019 and the second 60 days later.

According to the Complainant’s submission, while the first moiety was paid on 8 February 2019, in line with the agreement between the parties, the second moiety was never paid and is, therefore, the basis of the Complainant’s within complaint.

In addition to the above payment, the Complainant also included a claim for €490.11, in respect of unpaid expenses incurred on behalf of the Respondent.

CA-00029380-001:

The Complainant submitted that, on the termination of his employment with the Respondent, he was not provided with his statutory entitlement to notice or pay in lieu of thereof.  Consequently, the Complaint is claiming one week’s pay, in the amount of €826.92, in line with the provisions of the Minimum Notice and Terms of Employment Act, 1973.

Oral Submission:

At the commencement of the Oral Hearing, the Complainant submitted that his claims in relation to payment of notice and outstanding expenses had both been resolved in prior discussions with the Respondent.  The Complainant submitted that as a result, he no longer wished to pursue these specific claims and the only matter remaining for adjudication at this point was the outstanding payment for €3500, under the Payment of Wages claim, reference CA-00028973-001.

Based on the prior settlement of the Complainant’s claims in relation to minimum notice and unpaid expenses, the Respondent’s representative at the Hearing only addressed the remaining payment of wages claim.

In this regard, it was submitted on behalf of the Respondent, that the payment agreed in relation to the post contract service provided by the Complainant was in the amount of €3,500 and not €7,000 as claimed by the Complainant.

Consequently, it is submitted on behalf of the Respondent that, the payment of €3,500 made on 8 February 2019, to the Complainant, discharged the Respondent’s full obligations in this regard and no further payment was due.

The only evidence adduced in relation to the agreement between the Complainant and the Respondent with regard to the pre-contract arrangement and, more particularly, the agreed amount of the payment in that regard, came by way of two text messages which passed between the parties on 31 December 2018 and 7 February 2019 respectively.

In the first of those text messages, the Complainant queried the payment as follows: “What about the upfront €7K? When is it getting paid?”. In reply, some two minutes later, the Respondent stated as follows: “I’ll check with , should (sic) end of month”.

In the message dated 7 February 2019, the Complainant stated as follows: “What’s the timeline on the first ½ of the €7K upfront portion?”. On this occasion, the Respondent did not reply directly to the Complainant specific request with regard to the payment.

In response to the above evidence, which was presented by the Complainant, it was submitted on behalf of the Respondent that he did not notice or take notice of the reference to the €7,000. While there may be some validity to the Respondent’s contention in this regard in relation to the 7 February text, when he only replied to an earlier, unrelated aspect of the Complainant’s text, the same cannot be said in relation to the 31 December text. On that occasion it is clear, from his response, that the Respondent did receive the text and responded directly to it.

Against a background where the text was clearly received and responded to, I find it difficult to accept that, in a context where he submits that the agreed amount owed was €3,500, the Respondent would not have noticed and reacted to a claim for twice that amount.

The Complainant’s contention, that the agreed amount was always €7,000 and that it was to be paid in two moieties, is clearly confirmed in both of his texts to the Respondent. In that context, I am satisfied that there is sufficient validity to the Complainant’s contention in this regard. On that basis, I am satisfied that, on the balance of probability, the agreed amount was €7,000. Consequently, I find that the second moiety of the payment, i.e. €3,500, remains due to the Complainant.

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 and maternity pay, or any other emoluments, referable to his employment, whether payable under his contract of employment or otherwise.”.

Notwithstanding the fact that the payment in question, in the within case, related to activity that took place prior to the Complainant’s contract of employment coming into effect, I am satisfied that it represents an emolument which is preferable to his employment. Consequently, I am satisfied that the amount of €7,000 in this case represents “wages” for the purposes of consideration under the Payment of Wages Act.

 The said Act states, as follows, at Section 5 (6) (a):

“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), 

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 above, I find that the Complainant’s complaint in this regard is well-founded.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my decision in relation the Complainant’s complaints as follows:

CA-00028973-001:

I find that the Respondent has made a deduction from the wages of the Complainant, contrary to Section 5 (1) of the Payment of Wages Act. Consequently, I find that the Complainant’s complaint in this regard is well-founded and I find in his favour in the order of €3,500.

This award represents the gross amount due to the Complainant and is, therefore, subject to the normal statutory deductions that would apply to wages in such circumstances.

The Complainant’s complaint in relation to unpaid expenses, which was also submitted under this complaint reference, was withdrawn at the hearing and, consequently, no decision issues in that regard.

CA-00029380-001:

The Complainant’s complaint in relation to minimum notice was also withdrawn at the hearing and, consequently, no decision issues in that regard.

Payment of Wages Act

Minimum Notice & terms of Employment Act