ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00019412

Parties:

Complaint(s):

Date of Adjudication Hearing:  26/03/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Complainant referred her claim to the Workplace Relation Commission on 21st  January 2019. The complaint was heard on 26th March 2021. The Respondent did not attend the hearing. I am satisfied the Respondent was properly notified of the date and time of the hearing.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background:

This Complaint relates to an alleged contraventions of the Payment of Wages Act, 1991  to a Brazilian national .

Summary of Complainant’s Case:

The Complainant, a Brazilian National, arrived in Ireland in 2017, and worked with the Respondent in Ireland from December 2017 to June 2018.  She further submitted that she was paid in part in cash and part was paid top the bank.  The Complainant returned to Brazil in June 2018 as her application for a work permit had been refused.  She maintained that she continued to be employed by the Respondent from June 2018 until December 2018.  She submitted that the Respondent failed to pay her for 12 weeks work during October to December 2018 and she was owed a total of €3,410. 

The Complainant submitted a letter from the Respondent dated 19th June 2018 which confirmed she was employed by the respondent and whilst she had returned to Brazil she continued to be employed by the Respondent.  The Complainant also submitted as evidence emails and WhatsApp correspondence between the Complainant and the Respondent for the period up to December 2018 which supported her assertion that she had continued to be employed and had completed work for the Respondent. This correspondence included a letter from the Managing Director of the Respondent dated 19th June 2018 which stated She started her employment on December 2017 in Ireland, where she stayed for 8 months and now will continue her work from Brazil.

The Complainant also submitted WhatsApp evidence that on 17th December 2018 the Respondent told her that her pay would be sorted stating Ye it will be all sorted this week send me your list of weeks and money owed and we will match with ours and make payment. The Complainant maintained that the outstanding wages for €3,410 was never paid to her work.

Summary of Respondent’s Case:

The Respondent did not attend the hearing and made no submissions in response to the complaint.

Findings and Conclusions:

Section 5 (1) of the Payment of Wags Act 1991 states that 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.

I find that the Complainant was employed with the Respondent until December 2018. I find that in light of the uncontested evidence that the Respondent has underpaid the Complainant €3,140.

Having heard the uncontested evidence submitted, and in accordance with Section 6 of the Payment of Wages Act 1991, I find the complaint is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision 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 make a decision in relation to a contravention under Section 5 of that Act.

As specified by Schedule 6, Section 6 of the Payment of Wages Act 1991 provides that upon finding a complaint well-founded, an Adjudication Officer may direct an employer to pay an employee compensation of such amount (if any) as he considers reasonable in the circumstances 

As I have found the complaint is well founded as respects the deductions from the Complainant’s wages, in that she was not paid for her work between October and December 2018, I direct the Respondent to pay the Complainant compensation of €3,140 after the making of any lawful deduction.

Dated: 14th July 2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Key Words:

Payment of Wages