Complainant

Respondent

Anonymised Parties

An Industrial Manager

A Cleaning Contractor

Representatives

None 

None

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00034442-001

04/02/2020

The complainant worked for the respondent between the 14th June to 18th November 2019. He was paid €2,900 per month and worked as an Industrial Manager. He claims outstanding pay and commission earned in October and November 2019, which ought to have been paid to him on the 8th December 2019. The respondent denies the claim.

The complainant outlined that he was paid about €30,000 per year and worked from 8am to 5pm. He started as the Industrial Manager and from September 2019, also looked after office cleaning. He started to work longer hours, starting at 4am and working to 11pm. He took on this additional role as a manager had left.

The complainant said that he took two weeks of holiday in November 2019 but was not paid for this. He then worked for two further weeks and was also not paid for this period. He was not paid for this four-week period.

The complainant said that he could not handle it, as the respondent was a mess and people were leaving. Cleaners were not getting paid. The complainant outlined that the Gardaí took the company van on a Saturday as it was not taxed. He resigned the following Monday. He texted a manager to explain about the van being taken and that he was leaving the job. The manager did not reply.

The complainant said that he had been working long hours before his holiday and had to deal with cleaners not getting paid. There was only one cleaner on a particular site, when there were normally five. He outlined that the respondent had accused him of stealing, but this was not true.  

The complainant outlined that he waited for the respondent to pay him. When this did not happen, he emailed the respondent. They replied that he owed them money, apparently for broken tools and the van. He did not accept that he owed the respondent any money. The complainant said that his email specified the amount owed to him. In respect of bonuses, the complainant said that he was entitled to 1% payment when he finished a job. He had been only paid the bonuses due in the first month, a payment of around €500.

In reply to the respondent, the complainant did not accept that he had taken extra, unpaid leave. He said that he was not permitted to return to work on the 25th October 2019 as the manager was on holidays. He outlined that on the 10th October 2019, he had messaged the respondent about cleaners not getting paid. He had said ‘[name] guys did not get paid and are you transferring monies’. The manager replied to ask that he check the names of the cleaners owed money.

The complainant said that it was ridiculous to accuse him of stealing items. He had taken the cleaning equipment because he was doing a job on the Saturday.

The complainant said that he had to wait until the manager returned to work to resume work after his own holidays. He noticed towards the end of the October that he had been underpaid by €1,477 for this month. He accepted that the respondent’s figures regarding commission due could be correct. He outlined that other comments made by the respondent were ‘all lies’ as the respondent was angry because he had informed people what to do.

The complainant outlined that he could not find his December 2019 email to the respondent but could only find their email to him. He had also called the respondent at this time.

The respondent confirmed that it is a business name.

The respondent outlined that the complainant took nine days of annual leave in October and was paid for this annual leave. It outlined that the complainant was uncontactable on the 15th November 2019 as he would not answer his phone. He had been due to attend the office at 3pm but did not attend. The respondent noticed that a carpet cleaning machine and buffer machine were then missing but were not assigned to a job.

The respondent outlined that it tried to phone the complainant on the following Monday. They learnt from the Gardaí that they had removed the company van as it had been dangerously parked. They outlined that the man who collected the van told them that he had found someone intoxicated in the vehicle. There was no communication from the complainant until December, when the complainant’s wife sent a threatening text to say that she would call to the manager’s house or to her father. The manager rang the complainant’s wife to say that the threat was unacceptable.

The respondent referred to the pay slip for October, indicating gross pay of €1,522.80 and holiday pay €652.20. This was nine days of annual leave, covering the 14th to 24th October and the October bank holiday. The pay slip indicated net pay of €1,477.20.

The respondent outlined that the complainant had not submitted any hours of work for the end of October. Between the 25th and 31st October, the complainant took unpaid leave, which had been approved by the manager, but for which he was not entitled to be paid.

The respondent outlined that the complainant worked nine days in November, from the 4th to the 14th November. He disappeared on Friday 15th November and did not take calls.

The respondent did not issue a pay slip for November but emailed on the 12th December to say how much it owed the complainant. The respondent indicated that the nine days of wages amount to €1,038 and €314 was owed in commission. This totals €1,352. The respondent outlined that the complainant owed it €3,681, made up of the cost of the damaged and stolen buffing machine (€1,350) and carpet cleaner (€2,000), the cost of a vehicle valet (€75) and parking charges (€256). Deducting the wages from this total meant that the respondent was owed €2,039.

The manager refuted everything the complainant said about long hours and cleaners not getting paid. She outlined that the complainant’s wife had been the manager of the cleaning side but could not do the job. The complainant had sought to help his wife out, but he had his duties as Industrial Manager. The respondent paid all staff, but depended on receiving accurate rosters from the managers, including the complainant’s wife.

In respect of commission, the respondent submitted that the contract provided commission to be paid on new jobs priced. The complainant was paid €414.41 in August and €910 in September. He was due €300.14 for November and this was not paid.

The respondent outlined that there was a clause in the contract that required the complainant to surrender all company property and that a failure to do so would lead to a deduction in pay. The buffing machine and the carpet cleaner were removed on the Friday night and they were found in the van. We presumed that he was using them for his own jobs. They were damaged and needed to be repaired.

The respondent did not accept that the complainant was prevented in returning to work in late October. The complainant had asked for more time to deal with personal issues. This leave was approved verbally.

The respondent emailed the complainant on the 12th December 2019 and this followed a phone call and not an email. The respondent explained the deduction in the email.

This is a complaint pursuant to the Payment of Wages Act. The complainant asserts that he is due outstanding wages for October and November. The respondent denies that the complainant is due wages for October. In respect of the November wages, the respondent asserts that it is entitled per the contract to deduct the complainant’s wages to cover the cost of damaged goods and charges incurred by the complainant in the course of his employment.

The Payment of Wages Act prohibits the making of deductions from an employee’s wages unless required or authorised by the Act or the employee has consented to the deduction. It is for the complainant to show in the first instance that wages were properly payable to him and not paid.

There was a complete conflict of evidence between the parties over the wages due for October. The complainant asserted that he was underpaid and was prevented from attending work at the end of the month. The respondent outlined that it had paid the sums due and approved unpaid leave for the end of the month.

The burden of proof falls on the complainant to show that the wages were properly payable. Given the conflict in evidence and the complainant’s lack of supporting or corroborative documentation, I find that the complainant has not met the burden of proof in respect of showing that any wages that were properly payable to him were not paid.

The position in respect of November is clearer. The respondent accepts that €1,352 was to be paid to the complainant in wages. It did not pay these wages as it asserts that it is entitled to deduct this amount for monies it says it is owed by the complainant. Section 5(2) of the Act applies. This requires that any such deduction be required or authorised by the contract, that it be ‘fair and reasonable’ and that ‘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’[section 5(2)(b)(iv)]. These are mandatory requirements and set out in section 5(2).

In this case, the respondent did not furnish to the complainant the particulars of the deduction before making the deduction. The email of the 12th December came after the deduction and the ending of this employment. It follows that the respondent is not entitled to deduct the €1,352 owing to the complainant for November 2019. This element of the complaint is well-founded, and the respondent shall pay to the complainant €1,352.

It follows that I find that there was no contravention of the Payment of Wages Act in respect of October and that I find that there was an unauthorised deduction made in respect of the November wages.

CA-00034442-001

I decide that the complaint pursuant to the Payment of Wages Act is, in part, well-founded and that the respondent shall pay to the complainant compensation that is reasonable of €1,352.

Payment of Wages Act / burden of proof / deduction for act or omission of the employee