Complainant

Respondent

Parties

S. Jade  W. Cooke

Hewitt College Ltd

Representatives

  No Appearance by or on behalf of the Complainant

 Principal and Deputy Principal

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-00042073-001

20/01/2021

This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On the 20 January 2021, the Complainant, an audio/visual technical support worker, submitted a claim that she had been short wages of €4,263 on 30 September 2020. The Complainant sought Adjudication under the Payment of Wages Act, 1991.

One day later, the Complainant wrote under separate cover to WRC, where she stated that she was considering raising a disability discrimination case as she felt that the refusal to correct her tax record or provide payment arose from discrimination on disability.

On April 6, 2021, the WRC informed the Complainant that if she wished to make additional complaints, she was requested to complete the online complaint form and make it known that any further complaint be linked to the existing file no ADJ 31709.

The Respondent came on notice for the claim on 20 April 2021, displayed copies of three cheques and confirmed that:

Upon speaking to your Department, we contacted (the complainant) via email and have now lodged all three amounts to the bank account provided.

They considered the matter closed and asked how to formally close the case?

The case remained open as the right of withdrawal rests solely with a Complainant. On July 1, 2021, both parties were invited to a remote hearing scheduled for August 11, 2021, at 11.30 am. Both parties were invited to make written submission in support of their position.

The Complainant did not make an appearance at hearing or send anyone to represent her.

The Respondent denied the claim. The Respondent attended at hearing and was represented by both Principal and Deputy Principal at hearing. The Respondent had made an outline submission on the variance in the complainant’s name for revenue and employment purposes in April 2021.

I sought a copy of the contract of employment, and this was received post hearing.

The Complainant made a written complaint of deduction in wages owed on 20 January 2021. She submitted that she had commenced a 40-hour week as an Audio / Visual Technical Support at a School for gross pay €203.00 on September 1, 2020.

She added that she was severely disabled with a degenerative illness. She indicated that she was happy for the complaint of non-payment of €4,263.00 on 30 September 2020 to be “through whatever sources including mediation as long as my communication needs are supported and not used to delay “

The Complainant denied receiving any payment of €4263 from the respondent and was unwilling to allow her tax record to remain inaccurate.

On July 1, 2021, the Complainant was invited to attend an Adjudication hearing scheduled for August 12 @ 11. 30am.She was also invited to make a written submission in her case.

I have not received the requested submission.

There was no appearance by or on behalf of the complainant at hearing.

On 17 August 2021, the Complainant contacted the WRC Administrative division stating that she had been ready to attend the scheduled hearing but had been informed that it had been cancelled by the “other side “.

She was advised if she wished to advance a reasonable excuse for her nonappearance and written details of just who confirmed cancellation of hearing, consideration may be given to relisting the case. She was advised this was a very narrow window of time. The Complainant undertook to furnish these details directly to the administrative division.

It is now three weeks post hearing date, and no such excuse has been received.

The Respondent operates a school and confirms that the Complainant had been hired as a Digital Editor over a three-month period. They denied that she had been underpaid wages.

The Respondent outlined that the school had advertised for a Digital Editor (part time, 3 months) to support the home location of pupils during the Pandemic.

The school catered for many staff who worked from home. This position was to work from home, 7 hours per week and it generated a lot of interest.

The Complainant succeeded in securing the position, but she did not return the administrative starter form for pay purposes. A further problem arose when the complainant was found to have her account in a Post Office and this generated an operational challenge for pay, as it was incompatible with bank system.

The Respondent sought files from the complainant as part of her work programme but was informed that a high-grade virus had affected the files and she was unable to provide the information.

The Complainant subsequently notified a change of address to that of a hotel.

The Respondent had some concerns that the complainants PPS   number may not have been valid.

The employment ceased in November 2020.

The Respondent confirmed that they had forwarded payments by cheque to the complainant, once the issue of post office account, different names associated with PPS were resolved.

She had completed some work in September 2020, but none in October or November 2020, when employment ceased. The Complainant had informed the respondent that she had fallen behind in her work as she had signed a contract to write a book.

The Respondent exhibited cheques €1009.93, September, €875.27, October and €875.27 November 2020 which were sent to the complainant by registered post and returned due to insufficient address. The Respondent subsequently contacted the complainant by email with assistance of WRC and lodged all three amounts to the bank account provided by the complainant.

The Respondent considered the matter resolved at this point and were disappointed to be asked to answer a claim they considered already resolved.

The contract of employment relied on by the respondent was   forwarded post hearing.

The Respondent submitted that they were taken aback at the complainant’s assertions surrounding possession of a disability. They wanted the hearing to know that the complainant had not placed the respondent on notice of a disability and accepted that this claim was directed solely at a claim for payment of wages.

I have been requested to inquire into the complaint of 20 January 2021 last. This reflected that the complainant had been underpaid to the tune of €4,263 on 30 September 2020.

The Respondent had subsequently forwarded a detailed submission in response to the claim in April 2021, which reflected some administrative challenges in forwarding pay to the complainant.

The Complainant received this submission and took issue with the contents in advance of the hearing.

Both parties were invited to attend a full Adjudication hearing scheduled by remote means on August 12, 2021.

The purpose of the hearing is to allow both parties to the claim to ventilate their respective positions and test each other’s evidence through the mechanism of cross examination, followed by clarifications from the Adjudicator, if necessary. The Adjudicator does not have any involvement in the claim in advance of the hearing.

I had not received any submissions in advance of the claim, save the complainants original complaint form and the respondent explanation in the delay in payment received by WRC in April 2021, which was copied to the Complainant.

The right to withdraw a complaint rests fully with a complainant. This power was not exercised, and the case went to hearing as scheduled. I allowed for a delay at the commencement of hearing, in case of any eventualities for the complainant.

I am satisfied that the complainant was fully on notice of the time and place for the hearing. The complainant forwarded an email post hearing stating that she had been ready to attend but was informed by “the other side “that the hearing had been cancelled. She was invited to substantiate this and provide a reasonable excuse for her nonappearance. She did not comply with this request within the 5-day window permitted and has not returned any excuse some 3.5 weeks post hearing. I find the complainants approach to be unreasonable in terms of her nonappearance at hearing and her failure to offer a reasonable excuse for this. It was open to her to seek a postponement, if she experienced an untoward event.

At hearing, the respondent outlined that they had not been in contact with the complainant since their efforts to pay her were resolved in April 2021.

I have considered the claim as presented. The Complainant did not attend the scheduled hearing to particularise the claim made.

The Respondent confirmed that payments had been made, albeit the requested anticipated work had not been concluded and they contended they carried no further liability towards the complainant.

I noted that the contract presented had an 8 hours per week commitment rather than 7 hours advanced at hearing. It was clear to me that there was a certain ambiguity in the name on the WRC complaint form and that on the contract of employment. I should have liked to have met with the complainant at hearing to resolve this. I noted a lack of clarity on the signatures assigned to the contract. These should have been printed in tandem with handwritten signatures.

The rules on lawful and unlawful deductions in payment of wages are provided in section 5 of the Payment of Wages Act, 1991. Section 5(6) provides for wages, which are properly payable.

The complainant has not made an appearance in her own case. She submitted documents which required her to explain the contents at hearing. She was unreasonable in her nonattendance. She had not made out the case for wages that were properly payable on 30 September 2020, or whether a deduction occurred.

I did hear from the Respondent in the case, who denied any illegal deduction in wages and explained the administrative challenges in matching pay to the complainant. They contended that these challenges were resolved prehearing, when the complainant was paid in full, albeit the work assigned had not been completed. The employment has since concluded.

I have found that I accept the uncontested evidence adduced by the respondent in the case.

The claim by the complainant for recovery of €4,263 in unpaid wages on 30 September 2020 is not well founded.

There are no other claims live in this case.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 5 of Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 6 of that Act.

I have found that the complainant was unreasonable in not attending the scheduled hearing in her case or in forwarding a reasonable excuse for her nonappearance.

I have accepted the uncontested evidence tendered by the Respondent at hearing. I find the claim is not well founded.

Payment of Wages, Non-Appearance by the Complainant