Complainant

Respondent

Parties

Georgia Ryan

Rae Moore t/a Atelier Rae

Representatives

The Complainant attended in person and was not represented

The Respondent attended in person and was not represented

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-00044262-001

21/05/2021

The Complainant was employed by the Respondent as an Architectural Graduate from 15 March 2021 until 25 April 2021 when her employment was terminated by way of resignation. The Complainant worked an average of 40 hours per week and was paid a gross monthly salary of €2,000.00.

The Complainant claims that the Respondent made unlawful deductions from her wages in relation to outstanding wages, holiday pay and notice entitlements on the termination of her employment contrary to Section 5 of the Payment of Wages Act 1991. The Respondent disputes the claim and contends that no unlawful deductions were made from the Complainant’s wages on the termination of her employment.

The Complainant submits that she commenced employment with the Respondent on 15 March 2021 and was not provided with a contract of employment during her period of employment. The Complainant stated that she gave notice to the Respondent on 25 April 2021 that she intended to resign from her employment with effect from 30 April 2021. The Complainant stated that she was unable to work on 26 April 2021 due to sickness but offered to work the remainder of her notice period until 30 April 2021. The Complainant claims that the Respondent notified her on 26 April 2021 that it wasn’t necessary to work out her notice period.

The Complainant claims that the Respondent made unlawful deductions from her wages on the termination of her employment in respect of the following:

·       €435.90 in relation to unpaid wages which had been accrued during her period of employment.

·       €65.85 in relation to unpaid holiday pay entitlements accrued during her period of employment. 

·       €461.51 in relation to payment in lieu of her notice entitlements.

The Complainant stated that she contacted the Respondent following the termination of her employment to obtain her outstanding pay but has not received payment.

The Complainant claims that the Respondent has withheld a total of €962.69 in respect her unpaid wages, holiday pay and notice entitlements and she contend that this constitutes an unlawful deduction from her wages contrary to Section 5 of the Act.

The Respondent submits that the Complainant was offered the position of Architectural Graduate on 11 March 2021 on the basis of a three-month probationary period. The Respondent stated that the Complainant worked for a period of six weeks which commenced on 15 March 2021 and that she subsequently submitted her resignation on 25 April 2021. The Respondent stated that it was decided to accept the Complainant’s resignation with immediate effect without any requirement for her to work a notice period given her lack of professionalism and the performance related difficulties encountered during her period of employment.  

The Respondent submits that the Complainant did not have any entitlement to notice or payment in lieu thereof either by way of contract or under the statute on the termination of her employment. The Respondent submits that the Complainant did not have the requisite thirteen weeks continuous employment to qualify for statutory notice under the Minimum Notice and Terms of Employment Act 1973.

The Respondent submits that the Complainant was paid in full in respect of both the wages and holiday entitlements accrued during her period of employment.

The Respondent disputes the Complainant’s claim that it has contravened the provisions of Section 5 of the Payment of Wages Act 1991 on relation to her wages, holiday pay and notice entitlements.

The Law

Section 1 of the Payment of Wages Act provides for the following definition of “wages”:

              “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.”

Section 5(1) of the Act provides:

“(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 Act provides: —

(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 Complainant referred this complaint to the Workplace Relations Commission on 21 May 2021. By application of the time limits provided for in Section 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was referred to the WRC i.e., from 22 December 2020 to 21 May 2021. I am satisfied that the alleged unlawful deductions which the Complainant claims were made from her wages on the termination of her employment on 25 April 2021 fall within the cognisable period covered by the claim.

The issue for decision in relation to the Complainant’s complaint is whether or not the Respondent made unlawful deductions from her wage’s contrary to Section 5 of the Payment of Wages Act 1991 in relation to unpaid wages, holidays and notice entitlements which she claims were due to her on the termination of her employment on 25 April 2021. In considering this issue, I must first decide whether the claimed unlawful deduction was in fact “properly payable” to the Complainant within the meaning of Section 5(6) of the Act.

The Complainant claims that she was due a total of €962.69 in unpaid wages, holiday and notice entitlements upon the termination of her employment on 25 April 2021. In considering this matter, I note that the Respondent submitted comprehensive documentary evidence (including payslips) in relation to the wages and holiday pay entitlements paid to the Complainant during the cognisable period. I am satisfied that these records clearly establish that the Complainant was fully paid both in respect of all wages and holiday pay entitlements that she had accrued during her period of employment. I find that the Complainant has failed to adduce any cogent evidence to support her claim that she was due the amounts claimed in respect of unpaid wages and holiday pay upon the termination of her employment.

In relation to the Complainant’s claim in respect of unpaid notice entitlements, I note that the Complainant did not have a written contract of employment and I have not been presented with any evidence to suggest that there was any contractual agreement between the parties in respect of notice entitlements upon the termination of her employment. It is clear that the Complainant had been working for the Respondent for approx. 6 weeks and I am therefore satisfied that she did not have the requisite service to qualify for statutory notice in accordance with the provisions of section 4 of the Minimum Notice and Terms of Employment Act 1973. In the circumstances, I find that the notice entitlements claimed by the Complainant were not properly payable to her within the meaning of section 5(6) of the Act.

Accordingly, I find that the Complainant’s claim under the Payment of Wages Act 1991 is not well founded and must fail.  

I find that the Respondent did not make unlawful deductions from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991. Accordingly, I find that the Complainant’s claim is not well founded and must fail.

Payment of Wages Act 1991 – Section 5 - Unpaid wages, holiday pay and notice entitlements - Claim not well founded