Complainant

Respondent

Anonymised Parties

A Parts Advisor

A Motor Business

Representatives

  Appeared in Person

 Appeared in Person

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040369-001

12/10/2020

This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

This claim originated on 12 October 2020 as a claim for an under payment of wages of €480.77.

The claim is contested by the respondent, a Motor parts business. Both parties attended the hearing in person and represented their respective positions.

At the end of the hearing. I sought sight of the September 29 email and contract of employment referred to during the hearing. I received both documents from the complainant. Both were copied to the respondent. No further submissions were received.

The Complainant outlined that he had worked as a Parts Advisor at the respondent business from 31 August 2020 until 21 September 2020. He worked a 42.5-hour week for gross pay of €480.77.

The Complainant formed the view that his employment wasn’t working out and he decided to resign his position. He arrived at his work premises on Monday morning, September 21, 2020 and informed the respondent that things were not working out and he had not fitted in at the business. He conveyed that he wished to leave there and then. This was accepted, following which, he shook hands with the owner and left. He was hopeful of another work opportunity at that time. 

By Friday, September 25, 2020, the complainant observed that his final weeks salary had not entered his bank account. He raised this absence of pay with two members of the respondent’s team, but this did not resolve the issue. Several days later, the respondent phoned him and told him that he would receive his wages after he paid €2,000 in damages for not working notice. The complainant contended that this was the first occasion that notice had been mentioned between the parties.

The Complainant approached an Advisory body who informed him, he was still entitled to wages. He sought payment again, highlighting that non-payment would prompt a referral to WRC. The Complainant submitted that he then received an email dated 29 September 2020 from the respondent, which committed to paying the wages “in due course” and seeking a parallel commitment to pay €5,000 to the respondent.

The Complainant waited for payment to follow, but nothing followed. He referred his claim for one week’s pay to the WRC on 12 October 2020.

He contended that he was not obliged to give notice to the respondent as his work record was sub 13 weeks. He concluded that the respondent’s quest for a payment of €2,000-€5,000 was unfounded and sought payment of €480.77 in unpaid wages.

The Respondent operated a Car Parts Business. The Complainant was employed as a Parts Advisor and joined a staff of 3 in a small enterprise. The Business invested heavily in his training as the complainant had not brought prior experience to the business.

The Respondent had met with the complainant and had flagged that the complainant needed to demonstrate a global improvement at the business. The position entailed some sporadic Saturday work and the complainant had not covered this anticipated shift.

The Respondent confirmed that he had been caught off guard when the complainant had bowled up on the Monday morning communicating his intention to leave immediately. He did not think to enforce the contract of employment on notice at that moment. However, he wished to do so now.

The Respondent outlined his disappointment in the complainant who had absented himself from Saturday cover without excuse.

The Respondent framed his response to the claim in reliance on section on notice in the contract of employment. He contended that he was entitled to retain salary when the complainant had not served the agreed one months’ notice.

The Respondent submitted that the complainant’s sudden departure had placed an undue burden on the business, which had invested heavily in his training. He clarified that he had not initiated legal proceedings at any other forum to recoup this expenditure. The Complainant had however greatly inconvenienced the business by his sudden departure.

I have considered both parties stated positions in this case. I have considered the contract of employment and email dated September 29, 2020, received from the complainant post hearing.

The facts of the case centre on an unanticipated sudden departure by the complainant from the permanent employment commenced on 31 August 2020.

I accept that this sudden departure placed a burden on the respondent who had primed the complainant for inclusion in his small team of employees. It is regrettable that the parties did not avail of the opportunity to resolve this issue during the telephone call of September 29, 2020 before the complainant brought the call to an arbitrary end.

However, I must consider the facts of the case under the provisions of the Payment of Wages Act, 1991 and I will now consider the parameters of Section 5 and Section 11 of that Act.

Section 5 of the Act provides that:

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.

(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,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, 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 omission or the provision of the goods or services, 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 and effect of the term,

and

(iv) in case the deduction is in respect of an act or 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

The Complainant has sought payment of a week’s wages which he submits were payable under his contract of employment. The Respondent disputed this and argued that as the complainant had not observed the contractual clause on notice, he was entitled to withhold payment.

I reviewed the contract which contained a clause on payment of wages in section 2.1

“Your remuneration is €480.77 per week payable weekly in arrears by direct debit “

 and a subsequent clause in section 11(3) on notice.

“a minimum of one months’ notice is required on your termination of your employment “

The facts of the complainant’s departure from the Business are undisputed. I accept that neither party discussed notice on September 21, the date of the unanticipated departure.

The Complainant noted that he had not received payment of wages in the usual manner and sought to resolve the situation. I accept that the respondent agreed to pay this sum but augmented it with a figure attributed to training costs which then served as a block to informal resolution. I accept that the Respondent has not progressed this claim of €2,000 -, €5,000 as breach of contract at any other forum. For the purposes of this claim that issue is peripheral.

Section 11 of the Act now   takes on a central relevance in this case.

Voidance of certain provisions in agreements.

11.— A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to preclude or limit the application of, or is inconsistent with, any provision of this Act.

The Respondent has argued that he was entitled to rely on the terms of Section 11 of the contract on notice. I have some difficulties with that submission as it limits the application of Section 5(1) of the Act.

In Ryanair ltd v Alan Downey [2006] 17 ELR 347, the EAT held that the respondent’s quest to chase a training payment on conclusion of employment constituted a breach of Section 5(2) (viii) of the Act and was unfair and reasonable coming so long after the course had been completed. The payment awarded at Rights Commissioner level was then upheld in the case.

In this case, the respondent made an arbitrary decision to deduct the complainant’s final payment on foot of offsetting it against notice.

I find that this is an incorrect interpretation of Section 5(1) of the Act. It is of note that the respondent did not set out the rationale for this move in advance of the deduction, in terms of the provisions of section 5, i.e. one week in advance or engage in seeking the complainant’s consent in advance.

I must find that in accordance with Section 11 of the Act, the clause of Section 11.2 on notice must be void as it sought to limit the primary purpose of Section 5.1 of the Act, that a deduction in wages is not permitted save for some express situations, none of which have been demonstrated here.

I find that the Respondent may not rely on the defence contained in Section 5 of the Act. I find that the wages of €480.77 were properly payable to the complainant as per contract and failure to honour this payment cannot be offset with a reliance on a contractual term on notice, which is void.

I find the claim is well founded.

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act, 1991 requires that I decide in relation to the complaint in accordance with Section 5 of that Act.

I have found the claim to be well founded. I award the complainant compensation of €480.77 less statutory deductions in respect of the contravention of Section 5 of the Act.

Deduction in Wages