ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030413
Parties:
| Complainant | Respondent |
Parties | Tony Henry | Momentum Partners |
|
Representatives | self | No show |
Complaint:
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-00040811-001 | 05/11/2020 |
Date of Adjudication Hearing: 20/08/2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The employee commenced employment on the 12t of October 2020 and his employment was ended on the 1st of November 2020. The respondent employer emailed the Workplace Relations Commission on the 18th of August 2021 to state that they would not be attending the hearing for personal reasons and alleging that the complainant was given a phone which he undertook to return worth €200 which hasn’t been returned to date. |
Summary of Complainant’s Case:
The complainant states that it was agreed that he would be paid at the end of the month. He started work on the 12th of October and was let go on the 3rd of November 2020 without receiving his wages and mobile expenses of approximately €130. The employee was asked to support his claim with relevant documentation and forwarded on the 23rd of August 2021, an email from Richard at Momentum Partners, detailing his terms of employment.
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Summary of Respondent’s Case:
The respondent made no submission other than to state that a phone should have been returned and did not attend at the hearing. |
Findings and Conclusions:
The contract dated the 4th of October 2020 at paragraph 4 stated: “For the months October and November the salary would be guaranteed at €25,000 (prorata for October). The salary and two levels of bonus would commence on 1st November,” He worked 17 days. As it was a sales position the salary for October and November had an uplift with the expectation that after the 2-month period; commission would be earned and thereafter the salary would be €22,000. The monthly salary for the period is €2083 x [17/20(working days) =.85] =€1772.25 Wages at section 1 of the Payment of Wages Act 1991 is defined as: 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: Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i) any payment in respect of expenses incurred by the employee in carrying out his employment, (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii) any payment referable to the employee's redundancy, (iv) any payment to the employee otherwise than in his capacity as an employee, (v) any payment in kind or benefit in kind. For the purposes of the Act the mobile phone expenses are not wages and there is no statutory redress for this element of the claim under the Act. The Act at section 5 states: 5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— The claim is well founded as the employer shall not hold back wages lawfully owed to the employee. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 6 of the Act states: 6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —
(a) the net amount of the wages (after the making of any lawful deduction therefrom) that — The claim is well founded and I direct the employer to pay to the employee compensation of €1772.25 which I consider reasonable in the circumstances less any statutory deductions. |
Dated: 15th September 2021
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Unlawful deduction |