Complainant

Respondent

Anonymised Parties

Restaurant Manager

Restaurant 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-00034712-001

18/02/2020

The Complainant commenced employment with the Respondent on 16th December 2019. His employment ended on 6th January 2020. His gross pay was €528.83; net €474.77 for a 40-hour week. The Complainant asserts that he was not paid for three public holidays over the Christmas period. The sum claimed is €358.15. The Respondent denies that this sum is owed.

In 2019 the Complainant states that he worked continually on a full-time basis for the Respondent for a short period over the Christmas of 2019 and into the new year of 2020. Upon termination of his employment he noted that he had not been paid for the three public holidays of 25th December 2019, 26th December 2019 and January 1st, 2020. The Complainant submits that the Respondent’s accountant had originally submitted a payment for the outstanding sum of €358.15 for the relevant public holidays, but that this had subsequently been withdrawn. The Complainant accepts that his attendance was erratic but that he had legitimate medical certificates for the times he was absent.

The Respondent accepts that an instruction of payment for the equivalent sum of the three public holidays in question had been given but that this calculation was due to an accountancy error. The Respondent expressed dissatisfaction with the Complainant’s attendance and submits that the Complainant had frustrated his own contract and therefore was not entitled to payment for the public holidays. The Respondent asserts that there was no continuity of the employment contract.  

The Organisation of Working Time Act at section 21 provides that there is no service requirement for full-time employees to avail of a Public Holiday. Once the employee is employed at the time that the Public Holiday occurs he/she is entitled to benefit from it.

Section 1 of the Payment of Wages Act, 1991 (the Act) defines wages as follows:

“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.

Section 5(1) of the Act sets out the prohibitions on the employer when making a deduction from wages

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

Section 5 (6) of the Payment of Wage Act 1991 states;

·       “Where—

o   (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”.

Section 6 provides as follows:

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015

·       6. (1) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that —

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment.

The law is quite clear in that holiday payment comes under the definition of wages and that any holiday pay which is properly payable but not actually paid is an unlawful deduction under the Act.   The Complainant gave convincing evidence, supplemented by bank statements, that he was continually employed by the Respondent for the said period that included the three Public Holidays. The Respondent argued that there was no continuity of employment due to short periods of absences which amounted to a repudiation of the contract by the Complainant. I cannot accept this argument nor the proposition that the unacceptable absences of the Complainant during the employment period confers a right to the Respondent to deny the Complainant his right to Public Holiday payment. The frustration of the Respondent is understandable but the effective performance, or otherwise, of the Complainant’s contractual duties has no bearing in this instance on his statutory right to receive his lawful wage. Both parties agreed that the equivalent sum at issue amounts to €358.15 therefore I find that the complaint is well founded, and I award the Complainant the sum of €358.15.    

CA-00034712-001 Complaint under section 6 of the Payment of Wages Act 1991: I find that the Complaint is well founded, and I direct the Respondent to pay the complainant the compensatory sum of €358.15.

Payment of Wages Act 1991, Public Holidays.