ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028402
Parties:
| Complainant | Respondent |
Anonymised Parties | Shop Worker | Retail Service |
Representatives | Self | Self |
Complaint:
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-00036473-001 | 01/06/2020 |
Date of Adjudication Hearing: 13/11/2020
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complaint concerns the withholding of wages and annual leave from the complainant which she contends were due to her at that time. The hearing was conducted remotely with no objection from either party. The parties set out their position at the hearing. The respondent had the opportunity to provide a statement of terms of employment for the complainant which provided for deductions due to till shortages following the hearing on the basis that he said he believed that there was such a clause in the statement. He failed to provide such a statement. The amount withheld were: Annual leave payment due on termination: €115.72 Wages: €225.50 Total:€341.22 The complainant was employed on an hourly rate of €11 per hour at the time of her resignation on 01/03/2020 |
Summary of Complainant’s Case:
The complainant worked for the respondent for nine months. She gave a letter of resignation on February 28th but did not receive any payment of wages or holiday pay due on termination. Her last payment was to February 27th, 2020. She says she sent the respondent a lot of messages about the payments after she left, but he ignored her. Disputing the reasons put forward by the respondent as to why she left and denying any allegation of wrongdoing, she said she left the employment because she was working on her own in the shop and referred to working without breaks. |
Summary of Respondent’s Case:
The respondent accepts that payments for wages and holiday pay in the amounts set out were withheld. Before she resigned, he had spoken to the complainant about missing stock, referring to dates of shortages in January and February. After he spoke to her she resigned, and he believed that the reason was the issues of shortages, missing stock and thought that was the end of the matter. He spoke about the complainant coming into the office for no reason early one morning after he spoke to her, after which the invoices related to the stock shortages went missing. Had he realised she was going to claim her monies, he would have referred the matter to the Gardai. He accepted at the hearing that the complainant had provided an acceptable explanation for one of the missing items. As far as he was concerned, she resigned instead of being dismissed. He referred to previous shortages in 2019. |
Findings and Conclusions:
For the purposes of considering this complaint, the relevant sections of the Payment of Wages Act,1991 are as follows: 5 (1)An employer shall not make a deduction from the wages of an employee…..unless: (b) the deduction(or payment)bis 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. And (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, Unless- (i) The deduction is required or authorised to be made by virtue of a term(whether express or implied and ,if expressed, 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 the omission……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 of the existence and effect of the term, And (iii) in case the deduction is in respect of an act or an 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 (iv) 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..’ The respondent provided no evidence of meeting the obligations imposed by the forgoing terms in the Payment of Wages Act. It is self-evident that, while he assumed the complainant resigned following his inquiries regarding shortages, he had no agreement with her which allowed him to deduct any amount from her wages due on termination. Given an opportunity following the hearing, to produce any written terms in a statement of employment which might have allowed for such deductions, the respondent failed to do so. As the respondent failed to meet the tests set by the various sections/subsections of the Payment of Wages Act, the complainant has established a valid basis for her complaint that wages due to her on termination of her employment were withheld (or deducted)from her without her agreement and in a manner contrary to the relevant terms of Section 5 of the Payment of Wages Act, 1991. This conclusion includes a concern as to the amount deducted, even if the respondent believed he was entitled to make such deductions, which exceeds the amounts set out in an email to the WRC on 5 August 2020 which refers to cash sales in January and February 2020.
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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.
The complaint by the complainant under the Payment of Wages Act,1991 is well-founded. The respondent is to pay the complainant the sum of €341.22 nett. |
Dated: 9th December 2020
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Deduction from Wages-shortages |