Complainant

Respondent

Anonymised Parties

Designing Technician

Signage Design Company

Representatives

 none

none 

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-00039133-003

11/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039133-005

11/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039133-006

11/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00039133-007

11/08/2020

The Complainant submits that that he worked for the Respondent from June 2002 up to the date of termination of contract on 7 August 2020. His weekly salary was a gross sum of €540.00. The Complaint submits that he was due an accumulated sum of money, over a number of years, which he did not receive. He submits that the non-payment of monies due amounted to an unlawful deduction under the Payment of Wages Act 1991.  He also believes he is due 8 days annual leave which were never paid to him on termination of employment. The Complainant also submits that he never received a written copy of his terms and conditions of employment contrary to the Terms of Employment Information Act 1994. The Respondent denies that the Complainant is owed any outstanding wages for holidays or otherwise. The Respondent accepts that the Complainant did not receive a written copy of his terms and conditions of employment. 

CA0039133-003 Payment of Wages Act 1991

At the outset of hearing this complaint, the Complainant submitted that he was owed over €5,280 in alleged wages for hours worked over a number of years. I informed the Complainant that an Adjudication Officer can only order an employer to pay an employee arrears due to the employee arising from any unlawful deduction made in the six months preceding the date on which the complaint was made. The complaint was submitted on 11 August 2020 therefore only unlawful deductions from 11 February 2020 can be considered. It was further advised that this six-month period can be extended to 12 months where reasonable cause is shown for the delay in making the Complaint. Notwithstanding the fact that the Complainant submitted no reasonable cause for an extension to 12 months, the Complainant accepts that there were no unlawful deductions made in the 12 months prior to his submission of the complaint save that he is claiming that he is owed 8 days holidays which were never paid to him on the termination of his employment. In evidence the Complainant referred only to 3 days on the week of the August bank holiday for which he believes he was due holidays but was not paid.

CA0039133-005 – Terms of Employment (Information) Act 1994

The Complainant submits that he did not receive a statement in writing of his terms and conditions of employment within two months of his employment commencing with the Respondent.

CA0039133-006 - Terms of Employment (Information) Act 1994 – Notification of Changes.

The Complainant submits that he was not notified in writing of a change in his terms of employment.

CA-0039133-007 – Terms of Employment (Information) Act 1994. – Non-receipt of core terms.

The Complainant submits that the Respondent did not supply him with his core terms of employment within 5 days of the commencement of his employment.          

CA0039133-003 Payment of Wages Act 1991:

The Respondent submits that the Complainant misrepresented the fact that he is owed holidays. The Respondent submits that the backlog in pay for the Complainant was arranged so that the Complainant would be paid for a full week but would be expected not to show up for Fridays. The Respondent submits that this was agreed with the Respondent but that this arrangement ended in July 2019, when all the monies owed had been redeemed, and this was communicated to the Complainant. The Complainant was not happy with this. On the week of the bank holiday, prior to the resignation of the Complainant, the Complainant took the week off and received money for the bank holiday only. The Complainant submits that he had used up all his holiday entitlement at that stage.    

CA0039133-005, -007 – Terms of Employment (Information) Act 1994

The Respondent accepts that the Complainant did not receive a statement of his terms and conditions of employment in compliance with the Act.

CA0039133-006 - Terms of Employment (Information) Act 1994 – Notification of Changes

The Respondent submits that any change in terms and condition of employment with the Complainant were mutually agreed. 

CA0039133-003 Payment of Wages Act 1991:

The Applicable law:

Section 1 of the Payment of Wages Act, 1991 (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—

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…”

Section 5(1) of the Payment of Wages Act, 1991 sets out the prohibitions on the employer when making a deduction 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

Section 5 (6) of the Payment of Wage Act 1991 states;

“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 only deduction to be considered within the allowable statutory period for the complaint, concerns an alleged non-payment for 8 days of holidays. The Complainant put emphasis on non-payment for 3 days in the week following the August Bank holiday in 2020. The Respondent submitted documents purporting to show that all days had been paid and all leave days had been taken.  These documents consisted of numerous payslips, screenshots from a work diary and a screenshot of a singular calendar page. I found that these documents were not decipherable as a valid record of annual leave. The Respondent in evidence stated that there was an arrangement whereby past monies owed to the Complainant were paid back by the Complainant taking Fridays off. However, the Respondent submits that this practice ceased in July 2019 and that he told the Complainant this. The Complainant denies this and no documentary evidence of cessation of this arrangement was presented at the hearing. There is an onus on an employer to keep proper records of annual leave taken.  This onus extends to a situation whereby an arrangement where annual leave was being deducted for days not worked, where heretofore it was being paid, to show the applicable dates as part of this record.  No clear record of this was submitted.   I found the evidence of the Complainant to be more credible on the issue of outstanding annual leave days. I conclude that on the balance of probabilities that the 3 days following the August bank holiday were days that should have been paid as part of the Complainant’s store of annual leave. I therefore find that the complaint is well founded, and I order the Respondent to pay the Complainant the sum of €324.00, the equivalent of 3 days annual leave.

CA0039133-005 – Terms of Employment (Information) Act 1994

The relevant law is found at section 3 of the Terms of Employment (Information) Act, 1994, as amended, (The Act) where the pertinent sections provide as follows:

 (1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that …

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(ga) that the employee may, under section 23of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee ’s average hourly rate of pay for any pay reference period as provided in that section, 

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Redress in the Act is described as follows at Section 7(2):

 A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention ofsections 3, 4, 5, 6or 6C  shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6or 6C, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d)in relation to a complaint of a contravention under change section 3, 4, 5, or 6, and without prejudice to any order made under paragraph (e)  order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

 (e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17of the Unfair Dismissals Act 1977.

The Respondent has admitted that no such terms as outlined in the statute were given to the Complainant therefore I find that the complaint is well founded.  It should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. The evidence at this hearing was that different arrangements were agreed between the Respondent and the Complainant on different matters. Related complaints at this hearing pointed to a confusion which I believe can be attributed in great part to the fact that the Complainant had not received his terms of employment in writing. I find it credible that the Complainant was greatly disadvantaged by this and for that reason I believe the transgression of the Respondent is on the upper end of the scale. I therefore order the Respondent to pay the Complainant the compensatory sum of €1620, which is the equivalent of 3 weeks salary.

CA0039133-006 - Terms of Employment (Information) Act 1994 – Notification of Changes

Section 5 of the Terms of Employment (Information) Act 1994:

 (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

Section 5 relates to changes to the terms of employment received. No terms were received by the Complainant therefore the notification of changes section does not apply. I find that the complaint is not well founded.

CA0039133-007 – Terms of Employment (Information) Act 1994 – Non-receipt of core terms

Section 3 of the Terms of Employment (Information) Act 1994 provides:

… (1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week…

The information required by subs.(1A) must be given not later than five days after the commencement of employment. The Complainant states that he did not receive his core terms within 5 days of the commencement of his employment. However, section 1(A) was inserted by the Employment (Miscellaneous Provisions) Act 2018. Evidence was given that the Complainant had commenced part-time employment with the Respondent in 2012 and changed to full time in 2016. The section cannot be retrospectively applied therefore the complaint is not well founded.

CA0039133-003:

I find that the complaint is well founded, and I order the Respondent to pay the Complainant the sum of €324.00, the equivalent of 3 days annual leave.

CA0039133-005:

I find the complaint is well founded and I order the Respondent to pay the Complainant the sum of €1620, which is the equivalent of 3 weeks salary.

CA0039133-006:

I find that the complaint is not well founded.

CA0039133-007:

I find that the complaint is not well founded.

Payment of Wages Act 1991, Terms of Employment (Information) Act 1994.