Complainant

Respondent

Anonymised Parties

A Property Inspector

A Property Company

Representatives

Sean Ormonde & Co. Solicitors

The Respondent did not attend the Hearing or was not represented

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-00024080-001

13/12/2018

The Complainant was employed by the Respondent as a Property Inspector from 28 June, 2018 until 12 November, 2018 when his employment was terminated. The Complainant worked an average of 40 hours per week and it was agreed with the Respondent that he would be paid a gross annual salary of €24,000.00.

The Complainant claims that the Respondent made unlawful deductions from his wages in relation to outstanding wages and payment in lieu of notice contrary to Section 5 of the Payment of Wages Act 1991 on the termination of his employment.

The Complainant commenced employment with the Respondent as a Property Inspector on 21 June, 2018. The nature of the work was advertised as a remote position requiring the Complainant to travel to various properties on behalf of letting agents, in order to prepare detailed reports of their condition and contents and conduct tenancy inspections and check outs with tenants.

The Complainant met with the Respondent on or around 28 June, 2018 for the purpose of a trial. The Complainant carried out a number of inspections on this date and following which he was offered the position of Property inspector on the following terms:

·         €24,000 per annum to be paid monthly on 21st day

·         €50 a week by way of a fuel allowance

·         Travel expenses on receipt of parking receipts, toll fee receipts and other travel expenses incurred

·         Mobile phone provided

·         Salary could be subject to review with progression in the Complainant’s new role

The Complainant contends that he encountered serious difficulties in obtaining the payment of his wages from the Respondent during his period of employment including the allowances and expenses which were agreed under the terms of his contract. He contends that there were months when his wages were only partially paid and that there were other months in respect of which he did not receive any payment or where the payment cheque bounced.

The Complainant contends that he was owed a total of €3,490.00 in outstanding wages and expenses when his employment terminated on 12 November, 2018. This amount when broken down relates to €2,995.00 in unpaid wages; €200 in relation to unpaid fuel allowance; €215 in unpaid parking receipts; €80 in relation to a payment for a new car tyre which the Respondent agreed to reimburse. The Complainant submits that he attempted to resolve matters amicably with the Respondent in relation to his outstanding wages following the termination of his employment. However, all such efforts have failed and the Respondent has refused to pay the amounts owed to him.

The Complainant claims that the Respondent’s failure to pay his outstanding wages on the termination of his employment constitute unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act 1991.

The Respondent did not attend the hearing and did not provide any submissions or evidence in response to the complaint under the Payment of Wages Act 1991.

The Law

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 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.”

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.

The Complainant referred his complaint to the Workplace Relations Commission on 13 December, 2018. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 14 June, 2018 to 13 December, 2018. I am satisfied that the alleged unlawful deductions which the Complainant claims were made from his wages on the termination of his employment on 12 November, 2018 fall within the cognisable period covered by the claim.

The issue for decision in relation to the Complainant’s complaint is whether or not the Respondent made an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to the unpaid wages which he claims were due to him on the termination of his employment 12 November, 2018. In considering this issue, I must first decide whether the claimed unlawful deduction was in fact “properly payable” to the Complainant within the meaning of Section 5(6) of the Act.

Based on the uncontested evidence of the Complainant, I find that the sum of €3,490.00 was “properly payable” to the Complainant in respect of unpaid wages, expenses and allowances within the meaning of Section 5(6) of the Act on the termination of his employment.

Having regard to the foregoing, I find that the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Act in respect of unpaid wages which were payable to him on the termination of his employment. Accordingly, I find that the complaint is well founded.

I find that the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991, and accordingly, that the claim is well founded. I hereby direct that the Respondent pay the Complainant the sum of €3,490.00 subject to any lawful deductions, in respect of unpaid wages.

Payment of Wages Act 1991 – Section 5 – Unlawful Deductions – Wages that are properly payable - Unpaid Wages – Well Founded