Complainant

Respondent

Anonymised Parties

A Company employee

A Construction Company

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-00023486-001

23/11/2018

The Complainant claims that he worked with the Respondent from 23 July 2018 until 16 October 2018 and during that time he was often underpaid from what was agreed as his weekly pay. He said the Respondent failed to pay him the balance of pay owed when he left the company. He claims that he is owed €2,200 net which equates to 4 weeks @ €550, plus his holiday pay of €468. A total of €2668.00.

The Respondent said that the Complainant was paid what was owed to him and there is nothing outstanding.

The following is a summary of the Complainant’s case.

The Complainant said he met the two Directors of the Respondent on 5 April 2018. They were trying to get involved in the Irish construction industry in a number of different capacities. The Complainant was working with another firm in that area at the time.

The Complainant said that it was agreed that his role within the Respondent would be as a commercial asset within the company, on a salary of €52,000 per year plus additional profit share when the company started to make profits. The Directors said they were willing to make him a director if/when the company became profitable.

The Complainant said that all he was interested in was getting a consistent stream of income as he had a young family and mortgage and bills to pay and that if the time came where the company was doing well, that could be discussed then.

The Complainant said that he started the ground work in preparing to join the Respondent and started to wind down where he was employed at that time. The Complainant gave details of the tasks he completed during that time and the arrangements of introduction meetings with some of the main contacts in the targeted industry. The Complainant said he officially started with the Respondent on 23 July 2018.

The two Directors assured him that he would be reimbursed for any payment that was due to him prior to that date. The Respondent, which was just starting up, did not have much assets at the time and the Complainant brought in his own personal pc's and printer to use, as money was tight and there was no money to purchase these items. The Complainant said that he is not looking for anything for the use of his own equipment, but it was brought up at a meeting that he would be “looked after” for this.

During the work period of 23 July to 12 October, the Complainant said that he continually requested his payslips so he could provide proof of income to the bank, as he was trying to secure a house with the banks. He said that he did not get his payslips until nearly three weeks after he finished on 3 November 2018.

The Complainant said that his payslip for his last week of work stated that he had a holiday entitled payment of €468.00. He said that this was not paid.

The Complainant reiterated that he was not looking for payment for the use of his equipment/computers or the 12-week period before his official start date of 23 July. He just wants to be reimbursed for the work period performed from 23 July to 12 October of which he said is €2668.00 which equates to 4 weeks @ €550.00 plus €468.00 holiday pay.

The Complainant provided documentary evidence in support of his claim.

The following is a summary of the Respondent’s case.

The Respondent is a company operating in the Construction Industry.

Mr. A, a Director with the Respondent attended the hearing and confirmed that the Complainant was one of its employees. He said that the Complainant only worked with it for a number of weeks and after a serious disagreement with another Director of the company, the Complainant left his employment.

The Respondent claims that all payments were made in light of what was owing to the Respondent and corresponded with the payslips presented in evidence.

The Respondent said there was nothing owing, and the case is not well founded.

The Relevant Law

Section 1 of the Act states,

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purpose of this definition, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or the Government, as the case may be, and an officer or servant of a local authority for the purposes of the  Local Government Act 2001 (as amended by the Local Government Reform Act 2014) , a harbour authority, a health board or a member of staff of an education and training board  shall be deemed to be an employee employed by the authority or board, as the case may be;

“employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

“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) 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.

I note here that there is a difference of opinion regarding many of the facts in this case including the payments made by the Respondent and received by the Complainant. The Respondent is claiming that the Complainant was paid in accordance with the payslips presented in evidence. The Complainant said that the payslips were not forwarded to him until after his employment with the Respondent and do not reflect the payment he received. The Complainant provided evidence of copies of his bank account and identified where payment was received from the Respondent in his account. He said that this evidence demonstrates that he was not paid in accordance with what he is owed, and he is just looking for the money that should have been paid to him.

I note that Section 5(2) of the Act sets out the conditions according to which an employer may make a deduction from an employee’s wages:

(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.

Having considered all the evidence in this case, I am satisfied that the Complainant has presented a cogent case and his evidence corroborates that he was an employee of the Respondent from 23 July 2018 to 12 October 2018 and his net weekly pay should be €550. I am satisfied that the payslips were furnished after his employment terminated and do not reflect the money paid to him during the course of his employment.

I accept the Complainant’s documentary evidence that he did not receive all his salary entitlement. €2,200 net is outstanding. I note that the Respondent failed to remedy this on the termination of his employment and it accordingly is considered a deduction under the Act.

I find that this payment is still outstanding.

I note that the Complainant states that he was owed holiday pay of €468, which is also recoverable under the Act. I note that the Respondent failed to remedy this on the termination of his employment and it accordingly is considered a deduction under the Act.

I find that this payment is still outstanding.

The Payment of Wages Act 1991 governs the method of payment of wages. The act is very specific.  It protects workers against unlawful deductions of money properly payable to them. Section 5 regulates deductions made and payments received by employers Section 5(2)(b)(ii) sets out that the deduction must be of an amount that is fair and reasonable having regard to the circumstances (including the amount of wages of the employee).

The failure to make payment for wages owing to the Complainant cannot be considered fair and reasonable. 

On the balance of probabilities, I find the claim is well founded.

This complaint is well founded.

I hereby direct that the Respondent pay the Complainant the following amounts in compensation for the unlawful deductions:

1. - €2,200, being the net amount of the unlawful deduction in respect of wages due and not paid in respect of the Complainant’s period of employment, and

2. - €468, being the net amount of the unlawful deduction in respect of outstanding holiday pay and not paid on termination of the Complainant’s employment.

Payment of Wages Act - unlawful deduction - wages due - outstanding holiday pay - well founded.