Complainant

Respondent

Anonymised Parties

A Groundworker

A Modular Building Company

Representatives

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-00032003-001

05/11/2019

The Complainant was employed from 24th of June 2019 to 28th of June 2019.   The Complainant referred a complaint to the Workplace Relations Commission on the 5th of November 2019 alleging that the Respondent had breached the Payment of Wages Act, 1991 – 2015.   I proceeded to a hearing of these matters on the 10th of February 2020. Both parties were in attendance at the hearing.

The complainant submits that

he was employed by the respondent from 24th of June 2019 to 28th of June 2019,

He worked for the respondent for five days at the end of which he decided to leave and advised the respondent of this decision on the morning of the 28th of June 2019,

He worked until the end of the day and was asked by the respondent for his bank details in order to facilitate the payment of his wages for the week,

He did not receive any wages for the week’s work and despite numerous phone calls and texts requesting payment he never received any payment.

The respondent submits that

The complainant was employed by them as a groundworker as part of an installation team,

He worked form 24th of June 2019 to 28th of June 2019 after which he informed the respondent that he was leaving and would not be back the following week,

The complainant had worked in the respondent factory for three days and after that he was assigned to an installation on a client site for two days,

The complainant had not done the job properly and the respondent had to send others to redo the job and also had to hire a digger for an additional two days to do the job which was left unfinished by the complainant,

The respondent did not pay the complainant as he did not do the job properly.

Section 1 of the Act states:

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) provides

“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.

(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”,

Section 5(6) provides

“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 the Act), or (b) none of the wages that are properly payable to the 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 has claimed that he is owed €600 in unpaid wages by the respondent. The complainant advised the hearing that he had been employed by the respondent from the 24th of June 2019 to 28th of June 2019 after which he informed the respondent that he was leaving and would not be back the following week.

The complainant advised the hearing that he spent the first three days of his employment working in the respondent’s factory and learning how installations were put together.   On the fourth and fifth day the complainant was required to go to a client site and carry out the ground work for installation on a client site.     The complainant told the hearing that the site was not to specifications and that he had to scrape back the soil to get the ground to the correct level the complainant stated that here were also issues with the size of the digger versus the size of the hole required for the installation and other issues regarding the size of the bucket required to dig the hole according to specifications given. The complainant stated that there were no drawings for him to work from and also no one on site to answer questions. The complainant sated that a laser level which was required to do the job was not in working order and that he had phoned Mr. R managing director to try and get a replacement device in order to do the job which resulted in a delay in starting the job. The complainant stated that he had to phone Mr. R a number of times during the first day on site seeking clarification on certain issues but Mr. R could not answer these questions as he had never been to the site.     The complainant stated that there were substantial delays due to issues and problems on site which the complainant had sought to clarify with the respondent but to no avail. The complainant stated that he encountered further issues on his second day on site and that he decided at 11 o clock that day that the job was not for him.   The complainant stated that he phoned Mr. R to tell him that he would finish off the days work but that he would not be back the following week.   He told the hearing that he returned the van to the yard that evening and he then phoned Mr. R again before leaving, he stated that Mr R asked for his bank details so he could pay him his wages for the weeks work. The complainant stated that he never received any payment for wages for the weeks work and despite numerous phone calls and texts requesting payment he never received any payment.

Witness for the respondent Mr. S advised the hearing that the complainant had interviewed for and been successful for the position of groundworker as part of an installation team.   He stated that the complainant had indicated that he could work on his own initiative and that he had the necessary experience to do the job.     Mr. S stated that this turned out not to be the case as the complainant was unable to do the job and had left the job in a state where it had to be redone by two other groundsmen and also necessitated an additional two days of digger hire to redo the work done by the complainant. The respondent did not dispute that the complainant should have been paid €600 for the weeks work but stated that this would have been paid had the job been done properly.

The respondent stated that it did not pay the complainant as he had cost them more money to get the job done properly after he had left.  

The complainant advised the hearing that he had not received a contract from the respondent but that he had received a letter of offer. The respondent provided the hearing with a copy of the letter of offer made to the complainant at the time of securing the job. I note that this letter of offer makes no reference to deductions from wages for any reason and makes no provision for deductions for alleged bad workmanship.   I also note that he respondent did not at any point notify the complainant that a deduction was to be made from his wages and/or that the amount of such deduction was the entire amount of his wages.

Both parties agree that the complainant’s wages for the week were €600 and that he had worked the week but had never received the outstanding wages.

In considering this case I note the observations of Ms. Justice Finley Geoghan in the case of Sean Senan Histon -v- Shannon Foynes Port IEHC292 are applicable wherein she stated (in considering Section 5 of the Payment of Wages Act 1991: -

“It does not appear to me arguable that a failure to pay the Plaintiff any part of his salary is not a deduction from his salary within the meaning of Section 5 of the Act of 1991”

I am satisfied, based on the evidence adduced that the Complainant in the present case is owed the wages outlined by him and that the non-payment of these wages amounts to a deduction within the meaning of the Act and accordingly I declare this claim to be well founded.

Pursuant to section 6(1)(b) of the Payments of Wages Act, as amended, I consider it reasonable in these circumstances to award the amount of the unlawful deduction, i.e. a total of €600.

I find the complaint to be well-founded and I direct the respondent to pay the complainant the amount of €600.