FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : RADISSON BLU HOTEL (REPRESENTED BY IBEC) - AND - MR GRZEGORZ WALASEK DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00028198, CA-00035957-001 Mr. Walasek, ‘the Complainant’, worked for Radisson Blu Hotel, Dublin Airport, ‘the Respondent’, from 4 February 2020 to 28 February 2020. For reasons that are in dispute, the Complainant was not paid his wages in that time. The amount that he was paid subsequently is also a source of dispute. The Complainant made a claim under the Payment of Wages Act , 1991, ‘the Act’. The Adjudication Officer, ‘AO’, decided that the case was not well founded. The Complainant appealed to this Court. Summary of Complainant’s Arguments The Complainant was engaged on a contract for €26,000 p.a., to be paid monthly. On 6 February 2020, he opened a bank account. He was informed that the account was ‘too complicated’ by the HR Manager and that he should get another one. He also applied for a PPS number on that date. On 20 February 2020, the Complainant gave an update, re-sent his bank details and outlined that he awaited his PPS number. He enquired about being paid. He received no reply. In email exchanges on 28 February, the Complainant was advised by the Head of Accounts that he had not received the Complainant’s banking details from HR. He also received payslips indicating that he would be paid €1371.79, (€713.33 net) and not the €2166.66 monthly pay agreed. This amount was so low that the Complainant could not meet his living costs in Ireland. He indicated that he felt he would have to resign. He did so when several hours went by with no reply. On 2 March 2020, the Complainant returned all hotel issued equipment. He was denied the chance to speak to the Head of Accounts but he was assured that his pay would be lodged to his bank account the following day. He left Ireland that day. The following day the Complainant was told that he would not receive payment until he turned in details of his account on bank headed paper, something that the bank did not do at the time, and gave his PPS number, which he could not do as he was awaiting it. An email exchange followed, and no proof was offered that the hotel needed these documents. It was advised subsequently by the hotel that the Complainant’s date of birth was all that was necessary for the Revenue Commissioners. On 20 March 2020, the Complainant received €856.34 from the Respondent without having to provide the information sought previously. This proves that money was withheld, causing hardship to the Complainant. This was not what was owed, nor did it address the damages caused to the Complainant by the Respondent. The Complainant made a claim to the Workplace Relations Commission. On 31 March 2020, the Complainant received a payslip for the month of March. No such payment was ever received. On 17 April 2020, the Respondent advised the Complainant to apply for the Pandemic Unemployment Payment. Due to the actions of the Respondent, the Complainant did not qualify. The Respondent breached the Complainant’s contract by not paying him at the end of February. The Complainant was paid €1755.89 gross. His monthly contractual entitlement was €2166.66. The Respondent explains the difference as the Complainant did not work the hours required for the full monthly salary. However, the Complainant had no control over the hours that he worked. The Complainant is owed the balance due. The damage caused involved pecuniary losses of €750 for a lost security deposit and €22,253 lost from the Pandemic Unemployment Payment scheme. The Court is asked to recognise these losses. Summary of Respondent Arguments The Respondent denies the claim in its entirety. There was no breach of the Act. On 29 January 2020, the Complainant was requested to provide his bank details and PPS number. On 25 February 2020, the Complainant was advised that his details had not been received. The payroll was processed that evening. Another mail was sent to the Complainant the following day from HR. The Complainant left a generic copy of bank details under the door of the HR office that did not look like an official document. On 27 February, the Complainant indicated that he did not yet have a PPS number and gave the name of his bank. On 28 February 2020, the Complainant was emailed a payslip that indicated a gross amount of €1371.79 gross, or €713.33 net, would be paid to him by ‘cheque’. In an email exchange, the Complainant was advised that the payment had not been processed as he had not provided needed information. The Complainant advised that his PPS number was in the post and that he had slipped the bank details under the HR office door. He also questioned the figures and was unhappy with the tax deductions. He then emailed all managers of the hotel, noting that he was ‘forced into resigning’. On 2 March 2020, the Complainant stormed into the HR office in an intimidating and aggressive manner, demanding payment. He was asked to leave. He was later invited to a meeting the following day. He responded by again emailing all managers, stating that he would not be attending a meeting, demanding payment and arguing about the figure processed for tax. He also indicated an intention to lodge a claim with the WRC. On 4 March 2020, the Respondent replied advising of the tax position and re-stating the request for necessary details. The Respondent contacted the Revenue Commissioners and was advised that typing the Complainant’s date of birth into the box for the PPS number would be sufficient in the unusual circumstances of the case. On 20 March 2020, a payment of €856.34 net was paid into the Complainant’s account. The Respondent explained to the Complainant how this unusual arrangement had been secured with Revenue. The Complainant indicated an intention to lodge a claim with the WRC. On 17 April 2020, the Respondent emailed all ‘team members’ regarding eligibility for the Pandemic Unemployment Payment. As the Complainant had resigned, he should have known that he was not eligible. He replied with a query on 24 April 2020 but, as the hotel had closed, he did not receive a reply. No unlawful deduction from wages was made. No evidence exists of a breach of s.5(6) of the Act. The Complainant was contractually required to work 156 hours in four weeks. He only worked 126 hours, 80%. He was entitled to be paid €2166 for his full, contractual hours. He was paid for the hours he worked, €1732. He was also paid for 10.96 hours of annual leave which had accrued, bringing the gross figure to €1755.89. The Complainant received the wages ‘properly payable’ to him. He started late in the month and finished early without notice. The Respondent is not in a position to pay people for hours not worked, especially now given the pandemic. Deductions were made in accordance with s.5 of the Act, by virtue of statute. The Complainant was taxed at ‘emergency tax’ rates because of the failure to provide a PPS number. The Act does not allow for claims for rent or social welfare payments. Reference is made to casesADJ-00008309andAD0422,in which it was held that employers do not have responsibility for social welfare situations. It was the Complainant’s decision to resign without reference to the company Grievance Procedure. Any money owed can be pursued by the Complainant with the Revenue Commissioners. The Respondent assisted the Complainant by securing a means of payment without a PPS number. The claims are without merit. The Applicable Law Payment of Wages act 1991. 1. “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: 4.— (1) An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees. 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, Deliberation Section 4 of the Act requires an employer to be clear with an employee about their remuneration. It follows, therefore, that an employee is entitled to receive that remuneration in return for their work. It is the contention of the Complainant that he was not paid for his work when he was due to be paid and that his rights under the Act were frustrated. The Respondent contends that the Complainant had not provided the necessary information to them to enable payment to be made when it was due. While the Court observes, more generally, that simple common sense and decency suggests a need for employers to be mindful of the needs of employees when they commence work to be paid in time or for employers to make some emergency payments to avoid hardship, when applicable, the Court accepts that the Respondent had legitimate concerns to avoid difficulties regarding the Complainant’s bank account and that, in circumstances where the Complainant was unable to supply his PPS number, the reasons for the delayed payment are legitimate and, as a result, there is no breach of the terms of the Act by the delay in payment. It strikes the Court that both parties could have handled the matter better and that an amicable outcome ought to have been possible that would have avoided the Complainant feeling that he was unable, for monetary reasons, to remain living in Ireland. The Act provides specifically for statutory deductions from wages. It follows that the Respondent was obliged to apply the appropriate tax to the Complainant’s wages which, in the absence of a PPS number, was emergency tax. It is contended by the Complainant that he was entitled to be paid his full monthly wages, even though he worked less than a full month. He cites the fact that his contract specifies an annual amount to be paid monthly. However, nothing in the contract specifies that he is entitled to be paid a full monthly wage even when he works less than a full month. The Complainant is entitled to be paid the agreed amount for the time that he worked, nothing more and nothing less. The suggestion that he should be entitled to a full monthly payment irrespective of the amount of time he worked is not supported by his contract or common sense and is not an entitlement under the Act. The Complainant was paid the appropriate rate for the days that he worked. He received what is properly payable under the Act. Deductions made from his wages were in accordance with s.5 of the Act. The delay in payment arose for legitimate reasons. The Court finds that the claim is not well founded. Determination. The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
