ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00032513

Parties:

	Complainant	Respondent
Parties	Marian Minarik	Reads Design & Print

Representatives

Self-represented

Did not attend

Complaint(s):

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-00043077-001	15/03/2021

Date of Adjudication Hearing: 05/07/2021

Workplace Relations Commission Adjudication Officer: Maire Mulcahy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, following 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. On 5 July 2021 I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The complainant agreed to proceed in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.

I gave the parties an opportunity to be heard and to present evidence relevant to the complaint.

Oral evidence was presented by the complainant.

Background:

The complainant has submitted a complaint under the Payment of Wages Act alleging an unlawful deduction of €224 on the 30 November 2020.

The complainant commenced employment with the respondent as a graphic designer on the 23/11/2020. The respondent terminated his employment on the 24/11/2020.

His hourly rate was €16.

He submitted his complaint to the WRC on 15 March 2021.

Summary of Complainant’s Case:

The complainant commenced his employment as a graphic designer on the 23 November 2020. He had a verbal agreement with the respondent that he would be paid €16 an hour and that he would work a 40-hour week. The respondent terminated his employment the following day, the 24 November, telling the complainant that “he wasn’t good enough” though the complainant states that he did everything that was asked of him. The respondent asked the complainant to send him his bank details which the complainant duly did on the 25 November, but the respondent never paid him. He submitted copies of emails sent to the respondent seeking payment

The complainant worked from 10.00 to 17.00 on both days and was due the sum of €224 on 30 November.

He requests the adjudicator to uphold his complaint of an unlawful deduction under the Payment of Wages Act, 1991

Summary of Respondent’s Case:

The respondent did not attend or acknowledge the request to attend the hearing. I adjourned the hearing for a period of 20 minutes to facilitate a late attendance. However, there was no response to efforts to contact him.

Findings and Conclusions:

The question for determination is whether the respondent’s failure to pay the complainant the sum of €224 on the 30 November 2020 contravened section 5(1) of the Act of 1991

Relevant Law.

The Act at Section 5 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”.

There was no evidence to demonstrate the availability of these statutory protections which would permit the employer to deduct this complainant’s wages. The complainant was not informed of the intended deduction.

Section 5 (6) of the Act of 1991 goes on to identify a deduction as follows:

“(b)None of the wages that are properly payable to an employee by an employer on any occasion (after making 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”

The uncontested evidence of the complainant is that he worked on 23 and 24 November 2020.The uncontested evidence is that his employer did not pay him for those two days and that the sum of €224 which is equal to two days wages is” properly payable” to the complainant.

I find the complaint to be well founded. I find that the failure to pay him the sum of €224 on 30 November is a breach of Section 5(6)(b) of the Payment of Wages Act,1991 and is an illegal deduction.

In accordance with section 6(2) of the Act of 1991, I order the respondent to pay the complainant the sum of €224 subject to all lawful deductions.

Decision:

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.

I find the complaint to be well founded.

I order the respondent to pay the complainant the sum of €224 subject to all lawful deductions.

Dated: 20th September 2021

Workplace Relations Commission Adjudication Officer: Maire Mulcahy

Key Words:

Unlawful deduction.