ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026117
Parties:
| Complainant | Respondent |
Anonymised Parties | IT Automation Consultant | Labour Recruitment Provider |
Complaint(s):
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-00033163-001 | 17/12/2019 |
Date of Adjudication Hearing: 07/02/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances, and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 17th of December 2019 was submitted within the time allowed.
Background:
The Complainant handed in his Notice and having completed his Notice he left the employment. In his final payment the Complainant noted that his remuneration was less than he expected it to be |
Summary of Complainant’s Case:
The Complainant attended with relevant paperwork. |
Summary of Respondent’s Case:
The Respondent did not attend. The Respondent was on notice. |
Findings and Conclusions:
At the outset it should be noted that the Respondent did not attend the hearing herein. I am satisfied that the Respondent was put on notice of the intended hearing by letter from the WRC dated the 10th of January 2020. There has been no communication from the Respondent since the inception of these proceedings. I am however, aware of one email from the (thought to be) Managing Director of the Respondent company dated the 1st of November directly to the Complainant and sent before these proceedings issued. The email suggests that the Respondent will “check upon his return next week” into the concerns raised by the Complainant. This never happened. The Complainant commenced employment with the Respondent company towards the end of August 2017. He continued to work there until October 2019 at which time a new opportunity came his way, and he formally tendered his resignation on the 14th of October by email – stating he would work his final week of Notice up to Friday the 18th of October. At the end of his employment the Complainant expected to be paid up to the 18th of October. In addition, the Complainant expected to be paid any accrued Annual Leave. In 2019, the Complainant was entitled to take 30 days annual leave of which he had already taken 14. The Complainant was therefore entitled to 8 further days accruing to the middle/end of October 2019. The Complainant’s wages per week were €1,346.00. Which implies a daily rate of €269.00. In his final payslip the Complainant was paid €1,458.33 which represents 5.5 days of pay. In fact, the Complainant worked 14 days in October (up to the 18th). There is therefore a deduction of 8.5 days of pay.
The Complainant raised the issue of the non-payment of his wages and accrued Annual leave to no avail. In the circumstances, the Complainant was forced to bring the within claim.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00033163-001 - I am satisfied that this claim is well-founded and I direct the Employer/Respondent to pay remuneration due and owing to the Complainant the sum of €4,438.00
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Dated: 25-03-2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
Key Words:
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