ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027971
Parties:
| Complainant | Respondent |
Anonymised Parties | Security Officer | Security Services provider |
Representatives | none | none |
Complaint:
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-00035734-001 | 16/04/2020 |
Date of Adjudication Hearing: 29/01/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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 in 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.
“Wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—
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 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.
By way of preliminary observation, 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 16th of April 2020 was submitted within the time allowed.
Background:
This a Payment of Wages claim for unpaid annual leave and is brought on foot of a workplace relations complaint form dated the 16th of April 2020. |
Summary of Complainant’s Case:
The Complainant gave evidence of his experience with the Respondent Employer. I carefully scrutinised what he had to say and am satisfied I got a fair account of his Employment History. |
Summary of Respondent’s Case:
The Respondent did not present in the course of the remote hearing. I am satisfied that the Respondent was notified of the fact of a remote hearing on the 11th of December 2020. The Respondent replied on that same date acknowledging receipt of the communication. No application was made to adjourn the hearing and the Respondent was thereafter sent the usual invitation to attend the hearing. In the circumstances, the Respondent had not availed of the opportunity provided to contradict the Complainant’s evidence. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this remote hearing. The Complainant explained that he joined the Respondent company in and around the 30th of April 2019. He commenced the Contract aware of the fact that it would be of a limited duration and it was, in fact, not due to extend beyond a year. The Complainant was an on sit Security Officer at a meat plant. The weekly Gross pay was meant to be €559.90. The Complainant became aware of the fact that there was a slight adjustment in his wages after Christmas 2019. He was told that this was in line with company policy of not paying for breaks. The Complainant questioned this as the nature of his work meant that he never got formal one-hour breaks in the course of his twelve hour shifts at €11.65 per hour. In addition to this the Complainant had requested Annual leave a few times but this had not always been facilitated and his Annual Leave was, in effect, being put off. The Complainant stated that there happened to be a NERA inspection during the course of his employment and in the course of a conversation with an Inspector he queried whether the employer should be allowed to reduce his wages when he never took formal breaks? He said that his Manager became very upset with him, and told him he had created a lot of bother. In fact, he was advised on the 24th of March that his employment would terminate on the 2nd of April 2020. He therefore worked through his Notice period and left the premises. He was advised that his final pay package would include his four weeks Annual Leave payment together with the payment for the final shifts he had worked. He had been advised that his Annual Leave was being calculated at €1,478.00. However, when he received the cheque for his final week at work, there was no holiday pay entitlement included. He queried this directly with the CEO Mr. HM who told him he could not afford to pay him holiday pay and was, says the Complainant, quite abusive in his language. I am satisfied that the Payment of Wages Act specifically includes holiday pay as a sum payable to the employee by the employer in connection with his employment. In the circumstances I accept the Complainant’s entitlement to be paid his holiday pay. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00035734-001 The Complaint herein is well founded and I direct that the Employer pay to the Employee the sum of €1,478.00 |
Dated: July 12th 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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