Complainant

Respondent

Parties

Ara  Azady

Colm Quinn Limited  T/A Colm Quinn Athlone

Representatives

 Benen Fahy Associates

 N/A

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-00044823-001

28/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044823-002

28/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044823-003

28/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044823-004

28/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00044823-005

28/06/2021

The Complainant worked with the Respondent from 1 July 2020 to 12 March 2021 and earned €10.50 per hour. He stated that four illegal deductions were made from his pay and that he did not receive a written statement of his terms and conditions of employment.

The Complainant commenced employment with the Respondent on 1 July 2020. He worked full time, approximately 38 basic hours per week and was paid €10.50 per hour. The Complainant’s usual daily duties included car washing and driving cars between branches and to / from customers.

In the discharge of his duties, on 8 October 2020 the Complainant went to Colm Quinn Drogheda at the direction of the Service Manager to collect a customer’s vehicle and bring it to Colm Quinn Athlone. An accident happened in the Drogheda garage causing damage to the vehicle. The Respondent put the cost of repair at €1,595.83. The Respondent deducted amounts of €400, €400, €400, and €395.83 from the Claimants payslips for the periods Dec 2020, Jan 2021, Feb 2021, and Mar 2021 respectively. The Complainant’s representative stated that these deductions were not agreed or communicated to the Complainant in writing in breach of section 5 of the Act and they were also excessive because they were equivalent to approximately 25% of the Claimant’s net monthly pay.

The Respondent stated that the Complainant had verbally agreed to make deductions from his wages to pay for the damage caused to the car by the accident that he had and it was agreed that these deductions would be made over a four month period.

The Respondent acknowledged that the Complainant had not received a written statement of his terms and conditions of employment. It was asserted however that he started soon after the pandemic began, he had never coming looking for a contract of employment and the Financial Controller who normally looked after such matters was on leave

CA-00044823-001

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

FINDINGS:

I note the Complainant’s evidence that the alleged contravention of this Act occurred on 20 December 2020 and that the complaint was referred to the WRC on 28 June 2021. In the absence of any reasonable cause having been presented to explain why this complaint were not referred within the six month period beginning on the date of the contravention, I find that I do not have jurisdiction to hear it.

CA-00044823-002 - CA-00044823-004:

THE LAW

The Payment of Wages Act 1991 states at section 5 and 6 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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

( a) any act or omission of the employee, or

( b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction,

FINDINGS:

CA-00044823-002

This amount concerns a deduction of €400 that was taken from the Complainant’s wages in January 2020. Given that the Complainant was not furnished “with particulars in writing of the act or omission and the amount of the deduction” in accordance with section 5 (2) (b) (iv) outlined above, I find that this complaint is well founded

CA-00044823-003

This amount concerns a deduction of €400 that was taken from the Complainant’s wages in February 2020. Given that the Complainant was not furnished “with particulars in writing of the act or omission and the amount of the deduction” in accordance with section 5 (2) (b) (iv) outlined above, I find that this complaint is well founded

CA-00044823-004

This amount concerns a deduction of €395.83 that was taken from the Complainant’s wages in March 2020. Given that the Complainant was not furnished “with particulars in writing of the act or omission and the amount of the deduction” in accordance with section 5 (2) (b) (iv) outlined above, I find that this complaint is well founded

CA-00044823-005

THE LAW

The Terms of Employment (Information) Act 1994, section 3, sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

FINDINGS

It is the Complainant’s position that he did not receive any written statement of his terms and conditions of employment as required by the Terms of Employment (Information) Act 1994 outlined above. At the hearing, the Respondent agreed that this was the case, when questioned by the Complainant’s representative. I therefore find that this complaint is well founded.

CA-00044823-001:

I find that I do not have jurisdiction to hear this complaint for the reason set out above.

CA-00044823-002 - CA-00044823-004:

THE LAW

6. (1) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5as 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.

FINDINGS

CA-00044823-002

This complaint is well founded for the reasons set out above.

On the basis of the evidence presented to me, I am satisfied that: “the net amount of the wages wages (after the making of any lawful deduction therefrom) that 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” is €377.68.

Given that this deduction of €400 made from his wages is greater than this amount, I make an award of €800 in respect of this complaint, namely twice the amount of the deduction.  

CA-00044823-003

This complaint is well founded for the reasons set out above.

On the basis of the evidence presented to me, I am satisfied that: “the net amount of the wages wages (after the making of any lawful deduction therefrom) that 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” is €367.73.

Given that this deduction of €400 made from his wages is greater than €367.73, I make an award of €800 in respect of this complaint, namely twice the amount of the deduction.    

CA-00044823-004

This complaint is well founded for the reasons set out above.

On the basis of the evidence presented to me, I am satisfied that: “the net amount of the wages wages (after the making of any lawful deduction therefrom) that 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” is €368.08.

Given that the deduction of €395.83 made from his wages is greater than €368.08, I make an award of €791.66 in respect of this complaint, namely twice the amount of the deduction.      

CA-00044823-005:

I find that this complaint is well founded for the reasons set out above. While I note that that Respondent explained that the Complainant had started soon after the pandemic began, that he had never coming looking for a contract of employment and that the Financial Controller who normally looked after such matters was on leave, I must have regard to the Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919 in making a decision on what compensation to award. In that case, the Complainant claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment. In his determination on the case, the Chairman of the Court, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.

As the failure to issue any statement of terms and conditions of employment within the required timeframes must be considered to be more serious than issuing an imperfect statement, notwithstanding the reasons behind the Respondent’s failure to do so, I must follow the authority of the Labour Court and make the maximum award in the within case. I therefore award the Complainant compensation of four weeks’ remuneration, a figure which was set out by his representative and not disputed by the Respondent, namely €1,529.47.