Complainant

Respondent

Parties

Leszek  Zero

EM News Distribution Ireland Limited

Representatives

Graham Bailey, IBEC

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-00035800-001

22/04/2020

The Complainant began working with the Respondent as a Production Planner on 4 October 2019 and was paid €430 per week. He is claiming that he was not paid a weekly working alone allowance of €50 when he became entitled to it in December 2019.

The Complainant began working with the Respondent as a Production Planner on 4 October 2019. He was informed at the interview stage by Mr X that he would be entitled to a weekly allowance of €50 when he worked alone. He stated that despite having started doing so in December 2019, he was not paid the allowance at any stage between then and the beginning of the Covid lockdown at the end of March 2020. He also highlighted that while there was no provision in his contract of employment surrounding the working alone payment, he was currently in receipt of the weekly amount.

The Respondent stated that that the responsibility allowance was always only payable to employees who had successfully completed their probationary periods. It was also asserted by the Respondent’s witness that he spoke to Mr X who carried out the Complainant’s interview and that Mr X denied informing the Complainant that he would be entitled to receive the allowance in question as soon as he began working alone.

Preliminary Point

The Respondent’s representative highlighted that the name of the Respondent included on the complaint form was incorrect and that it should be changed to EM News Distribution Ireland Limited. As the Complainant was in agreement, I made the necessary amendment.

THE LAW

The Act at Section 5, in relevant part, provides as follows:

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.

And

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.

APPLICATION OF THE LAW

The provisions of section 5(6) of the Act were considered by MacGrath J in an appeal on a point of law from a decision of the Labour Court in the case of Marek Balans v Tesco Ireland Limited [2020] IEHC 55. In that case MacGrath J re-affirmed the proposition that, in a section 5(6) application, the first matter to be determined by the Court is what wages are properly payable under the contract of employment.

I am therefore required, having investigated this matter, to establish what wages were properly payable and specifically if the Complainant should have received the working alone allowance when he began doing so in December 2019

I note firstly that the Complainant stated that he was informed by Mr X at the interview for the position that he would receive €50 per week when he was working alone. Despite this assertion being challenged by the Respondent’s witness who stated that he had spoken to Mr X and that Mr X denied saying this, I prefer the evidence of the Complainant given that Mr X was inexplicably not present at the hearing to give evidence.

While the Respondent’s witness also asserted that the working alone allowance is only payable to employees who have successfully completed their probationary periods and was therefore only payable to the Complainant in April 2020, when he had passed his probation, I note that there was nothing in the Complainant’s contract of employment which stipulates this, although I accept that the Complainant is currently in receipt of the payment.

Having regard to the above two points, namely the evidence of the Complainant and the absence of any contractual provision surrounding the payment of the working alone allowance, even though the Complainant is currently in receipt of it, I find that the complaint is well founded.

Given that the Complainant worked alone for a period of 2 weeks in December 2019 and that he continued to do until the end of March 2020, without being paid the working alone allowance, I find that he should be paid €750 by the Respondent. This represents 15 weeks payment of the allowance.   

I find that the complaint is well founded and that the Respondent should pay €750 to the Complainant. This award is subject to taxation the normal statutory deductions.

Unpaid wages;