Complainant

Respondent

Parties

Stephen  Molloy

Oran Freight Services Limited

Representatives

  Self

 No Attendance

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-00045520-001

03/08/2021

This case is concerned with a claim that wages and accrued holiday entitlements were not paid on termination.

The Complainant gave evidence that he was employed by the Respondent from June 6th, 2021 to 09 July 2021 as a driver. His rate of pay was €600 gross or €550 per week. There were no written terms of employment. Hours of work were not set. He was employed by Tom Kane whose name he had not seen printed so it could be spelled Keane. At commencement he was told that his starting time was 7 30 am which it usually was. Finishing time depended on the run and he was told the quicker he completed the run the earlier he would finish. There were no set breaks and in practice this meant a fifteen minute or so break during the run to have a cup of tea and something to eat before continuing the run. There was no time recording system for his hours. He had no issues or difficulty while working with the Respondent and he left to take up a new job expecting his back weeks wages to come through the following week. After a while when he had not received payment he sent emails to the accounts department who informed him that payment could not be made and referenced Tom and damage to a van. He replied on July 23rd that he was not aware of any damage and this was the first he had heard of it. On the same day Tom emailed him that he had done damage to the value of between €650 and €900 that there was CCTV footage and witnesses and asked how he intended to proceed.   Asked at the hearing if he had damaged the vehicle he replied that he did not recall any specific damage to any vehicle and if he had he would have owned up. There was no written agreement regarding damages and neither was anything said to him while he was in the employment about deductions for damages.

The amounts claimed were his final weeks wages €600 gross or €550 nett and unpaid holiday pay. The holiday pay he had calculated as 23.74 hours based on his own tot of hours worked multiplied by eight per cent based on his understanding of his entitlement where there were no set hours by €15 per hour based on a forty-hour week over €600 gross. This amounted to €356.10 gross Asked about an email of 30 June from the accounts department which referred to one days leave the previous week, Mr Molloy confirmed he had taken a day off and when he checked his payslips he was paid for that day the following week although it was not described as holiday pay on the payslip.

No evidence was presented to defend the claim of non-payment of wages and holiday pay on termination.

From the available evidence it is reasonable to conclude that the Complainant was employed by the Respondent named in this Decision; that he was due both his final weeks wages and an element of holiday pay; that the Respondent decided unilaterally to withhold such payments on the basis of damages without any discussion with the Complainant and without any authority to withhold the payments due to the Complainant by way of an agreement or a contract. Furthermore, it is reasonable to conclude that in his communication with the WRC the actual Respondent sought to mislead the WRC regarding his own name and the name of the employment and the trading status of the employment at the time the complaint was made for the purposes of avoiding any engagement with the complaint consistent with his lack of personal engagement with the Complainant on the matter prior to her post his leaving the employment on a voluntary basis.

The following is the relevant extract from the Payment of Wages Act 1991 at Section 5

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.

(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—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(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, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

As can be seen from the legislation there is no evidence that the Respondent complied with any aspect of his obligations and/or contractual or procedural requirements such that it was lawful to deduct wages from the Complainant.

Regarding compensation, the first payment unlawfully deducted was one week’s wages which will be calculated by the nett amount as required by the Payment of Wages Act at Section 6 set out below. That amounts to €550 nett.

Regarding the non-payment of holiday pay on termination, having established that the Complainant was paid for one day of annual leave and in the absence of any contradicting evidence regarding hours worked, the hours of work claimed by the Complainant over the period of the employment form the basis of the calculations. However, in his calculations he has used both the highest possible number of hours and the highest possible hourly rate of pay which do not corelate. In other words, he claims he worked 296.75 hours over six weeks. However, his date of starting given as 06/06/21 was a Sunday and his date of finishing given as 09/07/2021 and which were confirmed with him at the hearing represents five and not six weeks worked. He then used thirty-five hours as the divider for the hourly rate. The hours claimed for one week do not include the public holiday that week and another week’s calculations does not include the paid days leave. Allowing there are no official records to rely on and no evidence on behalf of the Respondent I have decided to calculate the average hours works including paid leave and paid breaks as an average of 50 hours per week with variable hours worked each week. Based on his own starting and finishing dates this leaves five weeks by fifty hours on average amounting to 250 hours worked. The hourly rate for nett pay of €550 divided by 50 is €11 per hour.  As the hours worked during the period varied from week to week, 8% is the correct formula for calculating annual leave. Applying this formula to the hours worked is 250 x 8% = 20 hours, less 10 hours for one day’s leave = a remaining 10 hours pay in lieu of annual leave withheld or deducted totalling €110 nett.

Section 6 of the Payment of Wages Act 1991 deals with awards of compensation.

(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.

As the total deductions from the Complainant without authority agreement or contract including unpaid holiday pay amount to more than the amount which would have been paid to the Complainant in respect of the week immediately preceding the date of deduction, twice that amount or €1100 is payable to the Complainant.

CA-00045520 Payment of Wages Act 1991

The complaint brought by the Complainant Stephen Molloy is well founded. The Respondent Oran Freight Services Limited is to pay the Complainant €1100 nett in compensation.

Deductions from wages and holiday pay on termination