ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034625
Parties:
| Complainant | Respondent |
Parties | Russell Smith | Zulleon Ltd |
Representatives | Self | Michael Walshe OCWM Law LLP |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045573-001 | 06/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00045573-002 | 06/08/2021 |
Date of Adjudication Hearing: 13/04/2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015,following the referral of the complaints 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.
Background:
This case is concerned with underpayment of wages and also holiday pay unpaid on termination |
Summary of Complainant’s Case:
Summary of oral evidence. In April 2020 the Complainant and others in the employment were informed of a reduction in their pay. No deduction was authorised by the contract or agreed. This continued for some months. Pay restored but the underpayment or deduction was not restored in spite of repeated commitments. to do so. At the hearing, the Complainant stated that he was not pursing those monies amounting to approximately €7000 as those deductions took place in 2020 and he was aware they were out of time being beyond the twelve months maximum period for bringing a complaint specified in the Payment of Wages Act,1991. He declared his intention to pursue that claim to the District Court. The complaint presented to be heard was a shortfall of €1026.33 gross (€528.55 nett) in his payment received in August 2021-having left the employment at the end of June 2021 and holiday pay which remained unpaid amounting to eight days holiday pay calculated as €1609.20 gross (€828.74 nett). There were promises to pay-but not the monies owed. He never received any explanation as to why other people received their statutory entitlements and he did not, or why they received a higher priority for payment than he did. The gross and nett amounts were agreed with the parties at the hearing. |
Summary of Respondent’s Case:
Mr Walsh is a non-executive director of the Respondent. He explained about financial difficulties at the start up stage. Cuts were implemented across the Board in 2020 with staff being assured they would be repaid. The Complainant left the Company and the priority became to pay those who had remined over those who had left. Redundancies were recently implemented and with less people on the payroll it would be possible to pay the monies claimed by the Complaint in respect of August 2021 and holiday pay. The gross and nett amounts for those claims were accepted as owing at the hearing. |
Findings and Conclusions:
The claims for the holiday pay on termination and the underpayment for August 2021 are indisputable. The Respondent had no right under the Payment of Wages Act to withhold those payments or to decide to establish a hierarchy of rights as to whom they would pay. From reading texts sent by the Complainant he became very irate about the situation which may not have helped in achieving his payment, but that was in reality no different from when he was patiently waiting for payment and engaging with the Respondent in a series of broken commitments and generally being fobbed off by the latter. Mr Walsh did suggest that he could commit to the payment of the amounts set out at the hearing by the end of May, but after a short discussion I concluded that, given the previous history of the dispute, it would be best to decide the matter in a Decision which would be enforceable or subject to appeal by either side. The deduction under the Payment of Wages Act is equivalent to one week’s wages and that is the amount to be paid. The deduction under the Organisation of Working Time Act is set at a nett amount for the actual entitlement and a further €500 for the failure to pay the acknowledged statutory entitlement and the inconvenience to the Complainant caused by waiting for payment and having to pursue his statutory entitlements. A unilateral decision to withhold a statutory entitlement and for an extended period is a serious matter. The compensation is a modest deterrent against future decisions of this kind on the part of the Respondent. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-000 45573-001 Payment of Wages Act 1991. The complaint of a shortfall of wages payable in August 2021 is well founded. Zulleon Ltd are to pay Russell Smith €528.55 nett compensation CA-00045573-002 Organisation of Working Time Act 1997 The complaint of non-payment of holiday pay to the amount of €828.74 is well founded. In addition to this amount, Zulleon Ltd are to pay Russell Smith a further €500 in compensation-a total of €1328.74 compensation for unpaid holiday pay. |
Dated: 19/04/2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Deduction from wages by underpayment and non-payment of holiday pay on termination |