Complainant

Respondent

Parties

Hayley  Keane

I am Valero Money Holding ltd

 (Name amended on consent)

Representatives

  Appeared In Person

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-00044318-001

24/05/2021

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 24 May 2021, the Complainant, a Personal Assistant to a Company CEO lodged complaint before the WRC. She submitted that she had not received her correct pay prior to imposition of Temporary Lay Off in February , 2021 .

The Respondent has not disputed the claim and has pleaded inability to pay in a non trading start up company .

At the conclusion of the hearing, I requested sight of the contract of employment pertaining to the period in question. This document was received by the WRC on February 25, 2022, and was shared with the Respondent for comment.

The Complainant, a lay litigant provided a written outline of her case and supported this in direct evidence on the day of hearing. The Respondent did not exercise the proffered opportunity to cross examine the complainant evidence.

The Complainant recounted that she had worked full time as a Personal Assistant to the Company CEO from 19 October 2020 Her gross pay was €2,916.67 per month for a 37.5 hr week. The Complainant described being hired via a Recruitment Company and being interviewed by the Company CEO. Her employment package had a base salary and a promise of many benefits such as phone, laptop, health insurance and pension, none of which materialised outside of the base salary and an iPhone in place of a landline. The Complainant expressed a high level of dissatisfaction that she had left another job to take the Personal Assistant work, which she now regretted.

The Complainant submitted that she signed a contract of employment in October 2020 .and acted as an Intermediary for staff with the CEO when payment was deferred before Christmas 2020. This was rectified by payment on December 30.

. She felt uneasy at the business during January 2021. She began to feel ignored. By January 29, funds to ground the January salaries had not materialised.

On February 2, 2021, the Respondent in referring to a delay in receiving transferred funds, placed all staff on temporary lay off and encouraged a progression to PUP payment, as covid 19 was deemed a factor in the delayed payment of salaries. The Respondent acknowledged that they had a liability for the January 2021 wages.

The complainant told the hearing that she had taken advice and had not claimed PUP for January 2021 and began claiming PUP in February 2021.

The Complainant explained that she and 15 other members of staff were misguided by the respondent by promises of a bonus, never delivered. Since Operations ceased in January 2021 random updates issued from the company, but payment did not follow. By April,2021, the company had resiled from any assurance of imminent payment on the basis that Investors had not deemed it prudent to pay staff for February and March 

The Complainant continued to seek updates but was ignored by the Respondent.

She did not resign but took up self-employment in May 2021. The Complainant expressed a disappointment in the broken promises and false assurances tendered by the Respondent. She also expressed a concern regarding continuity of records Employer and Employee PRSI contributions.

The Complainant sought payment for the month of January 2021 as provided for in her contract of employment. She also sought payment for 3 days annual leave and out-of-pocket expenses which were not re-imbursed. such as mileage, canteen supplies of €17.34

The Respondent was represented at hearing by a Company Director who apologised for the Complainants experience at the business.

He outlined that the Company, whose name was amended on consent at hearing was in essence a Start UP Company, which had never traded. Its current status was non trading and was not in receipt of any state supports.

He did not dispute that the ~complainant was owed money. He disputed that the Complainant had been ignored and explained that a difficulty existed in accessing the company IT.

The Director explained that the Company had chased avenues for funding and a catalogue of disappointments had followed. The Wages bill amounted to a cumulative €45,000. He acknowledged those €70,000 arrears were owed to Revenue and there was a possibility that the Company may be wound up.

In answering the Adjudicators clarifications, the Director was unable to provide a full assurance that PRSI payments had been made for the Complainant

The Respondent did not exhibit the Company Profit and Loss records .

I have been asked to decide whether a contravention has occurred in section 5 of the Payment of Wages Act, 1991. In reaching my decision, I have taken account of the written complaint form, the inter party correspondence exhibited inclusive of text/email contacts and the evidence adduced at hearing. I requested and received an excellently worded contract of employment post hearing, and I will return to this.

My jurisdiction rests in section 1 and section 5 of the Payment of Wages Act, 1991.

The definition of wages is provided for in Section 1 and states:

“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.

I must, therefore, conclude from the very outset that I do not have any jurisdiction to address the out-of-pocket expenses of mileage or canteen expenses claimed.

However, I am satisfied that I can address the issue of wages and unrealised annual leave. Before that, however, I wish to address the employment in question.

It is clear that the complainant had high hopes on joining this company, she was recruited and interviewed against these high hopes of a secure permanent job. The contract of employment provided reads very well, but it is clear to me that the section on pay, and annual leave has not honoured. All this is set against a Company which has not traded and whose efforts to secure Venture Capital funds did not materialise.

The Complainant was very clear in her chronology of events and made it known that the impact of the company’s non-payment of wages had impacted her in an egregious fashion as she was employed as PA to the CEO and was viewed as the “go to “person for the other staff.

This Company had no visible foundation on which to build a workforce and the Respondent has acknowledged liability for the January 2021 pay roll which vindicates the Complainants decision not to claim the Pandemic Unemployment Payment for a month in which she had already worked.

I accept the Complainants evidence that she faced a very challenging financial and career blow during this period. The number of false dawns where the Respondent directed the workforce to expect payment was simply unjust and a breach in the mutual trust and confidence, I would expect to see in an orthodox employment relationship.

Section 5 of the Act outlines the law on Payment of Wages

Regulation of certain deductions made, and payments received by employers.

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.

(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.

I am satisfied that the unpaid wages for January 2021 and the untaken annual leave of three days were properly payable to the complainant in accordance with her contract of employment. Sullivan v Department of Education [1998] ELR 217

I note that the Respondent had a clause on Lay Off in the Contract of employment, and this was action on February 2, 2021, and unaltered in course in the cognisable period of the claim.

I have identified a contravention of Section 5 of the Act, which has not been disputed by the Respondent, who had pleaded inability to pay.

I have found the claim is well founded.

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 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with section 5 of the Act.

Complaint to adjudication officer under section 41 of Workplace Relations Act 2015]

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 —

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

( b ) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a) , twice the former amount.

I have found that the Respondent has contravened Section 5 of the Payment of Wages Act, 1991. I have also found that the Complainant was severely impacted by that contravention as it placed her in financial difficulty and career uncertainty .

As a remedy in this case, I order the Respondent to pay the Complainant compensation of €4883.33 which is comprised of unpaid wages (€2,916.67), annual leave (€466.66) and includes an element of compensation (€1,500)

As stated, I lack jurisdiction to rule on the claim for expenses.

Non-payment of wages, notice, annual leave.