Complainant

Respondent

Anonymised Parties

A Video Editor

An Employer

Representatives

In person

Director

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-00026977-001

12/03/2019

The complainant was employed by the respondent as a Video Editor from 17th September 2018 until 18th January 2019. The complaints were submitted to the Workplace Relations Commission (WRC) on 12th March 2019.

Note: The complaints relate to outstanding wages and holiday entitlements. The complainant also outlined that he did not receive his P45 or confirmation of his dismissal from his employer which had caused a delay in receiving his entitlements to payment from the Department of Employment Affairs and Social Protection (DEASP). At the Adjudication hearing it was clarified to the complainant that the Adjudication decision would deal only with the matters referred in accordance with the provisions of the Payment of Wages Act, 1991, namely the outstanding Wages and Annual Leave entitlements. It was subsequently agreed between the parties that the outstanding annual leave entitlements would be paid to the complainant within two weeks of the date of the adjudication hearing. This element of the complaint was then withdrawn.

The complainant is seeking the payment of his last weeks wages from 14th – 18th January 2019. The complainant stated that he is employed 40 hours per week and is paid €576.80 gross per week. The complainant contends that he worked for 32 hours in the final week of his employment but did not receive any payment for the hours he worked.

The respondent stated that the complainant normally worked 40 hours per week. The respondent stated that any hours in excess of 40 per week must be sanctioned by Senior management. The respondent contends that the complainant carried out additional work without sanction and by the time his employment ended, he owed the respondent the equivalent of 44.5 hours. The respondent accepted that the complainant was not paid for the hours he worked in the final week of his employment but contends that it is entitled to recoup the monies owed by the complainant. The respondent submitted documents pertaining to the complainant’s employment in relation to its position in that regard.

The Applicable Law

Sections 5(1) and 5(6) of the Payment of Wages Act, 1991 state as follows:

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.

5(6) 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), 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 respondent accepts that the complainant worked 32 hours per week in the final week of his employment and that he was not paid for that work for the reasons stated.

I have reviewed the documentation pertaining to the complainant’s employment and I note that none of the documents were signed by the complainant accepting that the respondent could recoup monies that are allegedly owed. On that basis and in accordance with the relevant provisions of the legislation, I find that the respondent was not entitled to withhold payment of the wages that were properly payable to the complainant. Accordingly, I find that the complainant is due payment for the 32 hours he worked in his final week of employment with the respondent.

Having considered the written and verbal submissions of the parties, I find that the complaint is well founded. The respondent is directed to pay the complainant €461.44 for the 32 hours he worked in the final week of his employment.

Unlawful deduction