Complainant

Respondent

Anonymised Parties

Restaurant Manager

Restaurant

Representatives

  Self

Director / Owner

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-00036119-001

12/05/2020

The complainant commenced employment as a restaurant manager on 22 August 2019.  She worked a 39-hour week and her gross pay was €492.00 per week.  She gave notice of her resignation on 29 November 2019.  Her last working day with the respondent was 19 December 2019.  She claims she was due payment of €578.69 (net), plus €248.01 for holidays and €150.00 for tips.  The complainant was not paid.  She submitted a complaint to the Workplace Relations Commission on 12 May 2020.

The complainant worked as a restaurant manager from 22 August to 19 December 2019.  She gave notice of her resignation on 29 November 2019.   On 14 December 2019 the complainant sent an e-mail to the accounts department confirming her last working day would be Friday 20 December 2019 and asking for her holiday pay to be finalised before New Year.  The accounts department confirmed by e-mail that there were only two holidays to settle.

The complainant’s wages were not paid into her bank account on the due date.  She then e-mailed the accounts department on 19 December asking if the payment would go through that day.  When she did not receive a reply, she tried to contact the owner of the company.  Later that same day she received an e-mail from the owners referring to the complainant making a mistake in the sale of a painting and suggesting a payment be made by the complainant or a deduction from her last payment.

The complainant denies she was responsible for any mistake in the sale of the said painting.  She was the restaurant manager and her job description did not include work in the owner’s art gallery.  She acknowledged she took payment at the cash desk, which was located in the restaurant, for items from the gallery. 

The complainant claims she is entitled to be paid for seven working days and two days holidays.  The complainant also claims she is entitled to a share of the restaurant tips.  The complainant stated she was not notified of the respondent’s intention to withhold her wages or other pay. 

The respondent claims the complainant sold a painting valued at €2000.00 for €200.00.  The complainant had incorrectly priced the painting from information she had been given on a computer.

The respondent claims the complainant was informed of the mistake and she was required to take responsibility for the mistake.  The respondent claims the complaint left the business without giving notice and on the way out took two bottles of wine and tips from the tip jar.  The respondent claims the complainant left in breach of her contract.

CA-00036119-001

Complaint under Section 6 of the Payment of Wages Act, 1991

The complainant gave evidence at the hearing.  She stated she was employed as the manager of the respondent’s restaurant.  She accepted another job and so gave notice of leaving on 29 November 2019.  Her last working day at the respondent’s restaurant was to be 20 December 2019.

On 14 December 2019 the complainant notified the accounts department that her last working day would be 20 December 2019 and she asked that her holiday pay be finalised.  Two days later the accounts department confirmed by e-mail that she had two holidays due.  The complainant was not paid on the due date in December or at all.  The complainant stated she received no notice that her wages and holiday pay would be withheld. 

The complainant submitted she was entitled to payment for seven working days and two holidays and a portion of the tips. 

The respondent owner gave evidence.  He acknowledged that the complainant’s wages had not been paid because he held her responsible for a mistake in selling a painting at an incorrect price.  He claimed the complainant had been given the prices of items in the art gallery and she had marked the incorrect price on the painting.  In an e-mail on 19 December 2019 he suggested that the complainant either pay the money or the it be deducted from the last pay and holiday pay.

The respondent clarified that the complainant had in fact given notice of her resignation but that she had walked out on 19 December one day before she was due to leave.  He stated that she had taken two bottles of wine and helped herself to the tip jar. 

The issue in dispute is the non-payment of wages and holiday pay.  It was clear from the evidence that the respondent believed the complainant had made a mistake and that she should pay for that mistake.  The complainant denied she made any mistake as she stated she had charged the customer the price marked on the painting.  The respondent was unable to provide a copy of the price list.

The disagreement about the pricing of the painting is not the issue but whether the respondent was entitled to make a deduction from the complainant’s wages.

The complainant submitted her complaint to the Workplace Relation Commission on 12 May 2020.  I have jurisdiction to decide complaints relating to deductions made within the six months preceding the date of the complainant.  The relevant period is therefore 13 November 2019 to 12 May 2020. The deduction complained about was made in December 2019, within the relevant period.

The Payment of Wages Act, 1991 at Section 1 defines wages as:

“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:

Provided however that the following payments shall not be regarded as wages for

the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out

his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.

Thus, a complainant may bring a complaint in respect of non-payment of wages and holiday pay but not for non-payment of tips.

Section 5 of the Act provides the following in relation to deductions:

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 orservices, 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

(v) 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, and…

Legitimate deductions include those required or authorised by law, for example PAYE and PRSI.  Deductions may also be authorised under the terms of the employment contract, for example a pension scheme contribution.  Deductions for items such as health insurance or savings schemes may also be agreed between the employee and employer, provided they are agreed in writing.  Deductions in respect of “an act or omission” to recover a loss suffered by an employer may be made where the following conditions exist:

·         Such deductions must be authorised in the employee’s contract of employment,

·         The deduction must be fair and reasonable and cannot exceed the loss suffered

·         The employee must be given a statement in writing, at least one week before the deduction is made, giving particulars of the act or omission in respect of which the deduction is being made and the amount of the deduction.

The complainant provided me with a copy of her contract of employment, dated 22 August 2019.  There is no provision in the employment contract providing for deductions from wages for an act or omission.  The complainant was not furnished with a statement in writing giving the particulars of the act or omission and the amount of the proposed deduction.  As the respondent made the deduction from the complainant’s wages without fulfilling the above conditions I find that the deduction was unlawful.  The complaint is well founded.  The complainant is entitled to be paid for seven working days and two holidays.  The complainant is not entitled to any payment in respect of tips.

CA-00036119-001

Complaint under Section 6 of the Payment of Wages Act, 1991

I find the respondent made an unlawful deduction from the complainant’s wages.  There is no provision in the employment contract providing for deductions from wages for an act or omission.  The complainant was not furnished with a statement in writing giving the particulars of the act or omission and the amount of the proposed deduction.  The complaint is well founded.  I direct the respondent to pay to the complainant the gross amount of €885.60, being the gross payment due for seven working days and two days holidays.

Payment of Wages

Deductions

Act or omission deduction