Complainant

Respondent

Anonymised Parties

Chief Technical Officer

E-learning Company

Representatives

  Self

 Chief Executive.

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-00035096-001

06/03/2020

The complainant was employed as the chief technical officer of the respondent from 01 June 2016 until 15 January 2020.  He worked two days per week and was paid €1362.00 net per month.  He claims he was due to be paid €2000.00 gross on 24 December 2019.  The payment was not made.  The complainant submitted his complaint to the Workplace Relations Commission on 06 March 2020.  The respondent asserts that the complainant was paid in full.

The complainant normally worked two days per week as chief technical officer.  In 2019 he started working on an additional project for the respondent. He claims he was to be paid €3000.00 gross on top of his normal payment.  The respondent’s client was due to pay for the project in three or four payments.  The complainant claims he was to be paid each time a payment was received from the client.  However, due to the financial position of the respondent the complainant agreed to a reduced payment of €2000.00 to be paid at Christmas 2019. 

The complainant completed the project and the client made the final payment to the respondent in mid-December 2019.  The complainant was due to be paid €2000.00 gross on 24 December 2019.  The respondent did not make the payment. 

By e-mail of 06 January 2020 the complainant resigned as he had not been paid anything for his work on the project over the previous months.  In a series of e-mails, and other documents, between the complainant and the chief executive of the respondent the following was agreed:

·       The date of resignation would be 15 January 2020.  The complainant would be paid his normal wages until that date, that was a total of 8 days.

·       The respondent would pay the gross sum of €2000.00 before 29 February 2020.

The complainant sent a ‘payment agreement’ to the chief executive of the respondent setting out the payment terms; the complainant was to be paid €1362.00 on 15 January 2020 being the net payment for eight days and €2000.00 gross on or before 29 February 2020.  The chief executive signed and returned the document to the complainant on 08 January 2020.

The complainant was not paid his wages on 15 January 2020.  He subsequently agreed to being paid half on 16 January 2020 and the second half on 24 January 2020.  By e-mail of 16 January 2020 the chief executive of the respondent again confirmed the payment of €2000.00 gross would be processed before February month end.  The payment due on 24 January 2020 was not made until 04 February 2020. 

On 10 February 2020 the chief executive requested the complainant to agree to split the €2000.00 into two payments.  One payment of €1000.00 to be made in February 2020 and the final €1000.0 to be paid in March 2020.  The €2000.00 was not paid.  The complainant submitted a complaint to the Workplace Relations Commission on 06 March 2020.

The respondent asserts that the complainant, at the time of his departure, was paid in full.  It was subsequently discovered that the complainant was overpaid, and a request was made for the return of the overpayment.  The overpayment was not returned.

The respondent asserts the company had agreed that on the completion of a project a bonus payment of €1000.00 would be made to the complainant.  The project was to start on 24 July 2019 and be completed by 20 August 2019.  The project was not completed within the given timeframe.  The complainant sought an additional payment of €1000.00 to complete the project.  The respondent agreed to the additional payment as the company had already agreed a contract with the client and received an interim payment.  The complainant sought a further payment of €1000.00.  The respondent refused this demand.  The project was completed in mid-December 2019, some four months after the client’s original deadline.

The respondent alleges that the complainant, while working for the respondent, used company time and e-mails to aid and abet in setting up a similar company with a former employee.  The respondent alleges this was in breach of the complainant’s employment contract.  The respondent asserts that he confronted the complainant about the alleged breach of contract and the complainant then resigned.  The respondent then paid the complainant his salary and advised him he would not be paid any bonus.

CA-00035096-001

Complaint brought under the Payment of Wages Act, 1991.

This Act provides protection for employees in relation to the payment of wages.  Section 1 of 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:

In this case the parties expressed different views as to whether the claim is about basic pay or a bonus payment.  As is clear from the definition above “wages” covers both basic pay and bonus payments.

The Act includes the following provisions in Section 5 concerning deductions 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.

(2) …

(3) …

(4) …

(5) …

(6) Where—

(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.

The Act is clear that non-payment by an employer of wages that are properly payable is to be treated as a deduction.  Deductions are only permitted where required or authorised by statute, required or authorised by a term in the employee’s contract of employment or where the employee has given his prior consent in writing to the deduction.

The complainant submitted documents, including copies of e-mails and text messages between himself and the chief executive of the respondent.  The e-mails submitted commenced on 06 January 2020. 

In his evidence the complainant stated that he took on a project for his employer in 2019 on the basis that he would be paid when staged payments were received from the client.  Three or four staged payments were due to be made by the client.  The client made the payments, but the complainant was not paid during the lifetime of the project.  The complainant was told that the company had difficulty in making the payments to him during the project and he accepted he would be paid when the project was completed.  The project was completed in mid-December 2019.  The complainant stated he was to be paid the full amount of €2000.00 on 24 December 2019. 

The e-mail sent at 16.34 on 06 January 2020 has the subject hearing ‘Finishing with (company name)’ stated the complainant was finishing his employment due to not being paid for all the work he did on the project over the last few months.  It also stated that when he was told the company could not afford to pay him the full €3000.00 for the project he agreed to be paid €2000.00 instead.

The chief executive replied by e-mail at 18.14 on the same day.  In that e-mail the complainant was told that it had been found that he was working with a competitor and as a result his employment would be terminated immediately.  The chief executive stated in the e-mail that the complainant would be paid for two weeks in December and €1000.00 for the project, to be paid in full in February.

There was therefore a clear acknowledgement by the respondent that a payment for the project was due to the complainant.  The amount to be paid was at that point in dispute between the parties.  It was either €1000.00 or €2000.00.

There was further e-mail correspondence between the complainant and the chief executive of the respondent.  In an e-mail dated 07 January 2020 (15.29) the chief executive wrote that on the basis the complainant worked 8 days he would be paid his wages on 15 January 2020 and he agreed to pay €2000.00 before 29 February 2020, on the basis everything was handled professionally.  The complainant then requested the chief executive sign a document confirming this payment arrangement.  A copy of the document, dated 08 January 2020, signed by the complainant and the chief executive was provided to me.

The chief executive of the respondent in his evidence stated he had agreed to this payment arrangement as the company was having IT problems and they needed to be sorted out quickly.  The respondent needed the co-operation of the complainant to resolve the IT issues.

I find that the chief executive of the respondent had, on more than two occasions, acknowledged the complainant was due a payment of €2000.00 for work done and had agreed the payment would be made on or before 29 February 2020.

Having carefully considered the submissions made at the hearing and reviewed all the documents provided to me I am satisfied, on the balance of probabilities, that wages of €2000.000 gross were properly payable to the complainant. 

The payment was not made on 24 December 2019.  The parties subsequently agreed that payment would be made on or before 29 February 2020.  The payment was not made by 29 February 2020.  The non-payment of wages properly due was a deduction that was not authorised or agreed to by the complainant.  The complainant submitted a complaint to the Workplace Relations Commission on 06 March 2020.  The two dates when the payment was due, 24 December 2019 (original date) and 29 February 2020 (agreed date), fall with the six months before the date the complaint was submitted.  Complaints concerning unlawful deductions must be made within six months of the date of the deduction, this complaint was submitted within the relevant six-month period.

I find, on the balance of probabilities, that the complaint is well founded. 

CA-00035096-001

I find, on the balance of probabilities, that the complaint is well founded.  I direct the respondent to pay the complainant €2000.00 gross, being the amount of wages unlawfully deducted.

Payment of wages

Bonus

Wages

Deduction