ADJ-00037290

Complainant

Respondent

Parties

Hayden  Murphy

Louise Walsh  T/ A The Clothes Horse

Representatives

Aoife Rogers Carl O'Mahony & Co. Solicitors

 No Appearance by or on behalf of the Respondent

Act

Complaint Reference No.

Date of Receipt

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

CA-00048623-001

14/02/2022

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

CA-00048623-002

14/02/2022

On 14 February 2022, the Complainants Solicitor lodged two complaints on his behalf at the WRC.

1 Written terms of employment

2 Unpaid Wages

The Respondent was placed on notice of the claim and resultant correspondence on 21 February 2022.

Both Partis were invited to hearing in the case, scheduled for 2 September 2022.

The Respondent did not make an appearance at hearing, either in person or via representative.

The Complainants Solicitor outlined the details of an employment of short duration and frail foundation. She described the circumstances as “precarious work environment” as the business had expanded during the course of the complainant’s employment. There were two part time staff employed at the business.

She submitted that the Complainant commenced employment in or around 30 August 2021 until he terminated his employment, through necessity on 23 December 2021. During this period, she said that he had worked a 50-hour week as General Manager of a Laundry business in return for an agreed gross pay of €700.00.

The Respondent faltered in paying three separate weeks wages and the stated sum claimed stood at €1, 731.51 nett pay, which encompassed periods 50, 51 and 52 with commensurate pay dates as 11, 176 and 24 December 2021. The Complainant had also experienced an ad hoc payment transfer in the name of wages via the store debit card.

A dossier of pay slips were exhibited. A dossier of interparty text message was also appended . This served as a record of the parties engagement on the topic of pay .

The Complainant Solicitor also outlined an outstanding amount of €1, 064 gross pay due in unpaid cesser pay (annual Leave).

A claim was further outlined under section 3 of the Terms of Employment (Information) Act, 1994. The Solicitor argued that the complainant had not been furnished with a written statement of his terms of employment within the statutory period of 2 months .

Cases cited in support:

ADJ 27090 A Waitress v A Restaurant

Mark Peter Balazs v Ryan air DAC ADJ 24968

Evidence of the Complainant by affirmation:

The Complainant outlined a passion for working with laundry and told the hearing that he had approached the owner, Ms A for work. He learned that there were live plans to open a second branch of the business.

This second branch evolved but he admitted that he got “a bit lost “in the passion surrounding the job. He recalled that contract was not “a big thing at the business “Wages were skipped.

He recalled being requested to witness a change in the legal entity in October 2021. He signed as a witness, but the change did not come to pass.

The Complainant said that he had not been paid for 3 weeks work. He said he panicked as he thought this was impossible. He contacted another Director at the business but was ignored.

He submitted that his last contact with Ms A centred on 25 January 2022, when she told him that she was getting legal advice. He was keen to resolve the matter and offered to discuss, but nothing followed.

CA-00048623-001     Terms and Conditions of Employment

The Complainant submitted that he had not been provided with any documentation relating to the commencement of conclusion of his employment from August to December 2021.

He said this disadvantaged him when payment of wages was withheld over a three-week period.

CA-00048623-002     Payment of Wages

The Complainant expressed some concern regarding the erratic system of payment at the business, which had been remedied on one occasion through the store debit machine.

He was not paid for three weeks work and he panicked and decided that his employment was no longer viable and left. He had not been placed on notice of a deduction in his salary and had not consented to this.

He was not paid for 3 weeks work and annual leave on cessation. He had availed of 8 hrs annual leave during the course of his employment.

He submitted that he had successfully relaunched in employment.

The Respondent was placed on notice of both complaints in February 21,2022. No defence was filed prehearing. No Appearance was recorded at hearing by or on behalf of the Respondent.

Instead, post hearing, I received an undated one-page letter which disputed the claims made. The Respondent wrote that the complainant had left the job without notice and had placed a password protection on the security system and ESB. She stated that in light of the “vile and very expensive action “the Complainant was not owed pay.

She followed this up on November 15, 2022, but on no occasion, did she explain her absence at hearing on September 2, 2022.

I did not receive any documentary evidence of employment, records of annual leave paid, or wages paid outside the pay slips exhibited by the complainant.

I am satisfied that the Respondent was on proper notice of hearing and decided not to record an appearance .

CA-00048623-001     Terms and Conditions of Employment

No Appearance by or on behalf of the Respondent at Hearing.

CA-00048623-002     Payment of Wages

No Appearance by or on behalf of the Respondent at Hearing.

I have given some consideration to both claims before me. I was disappointed when the Respondent did not make an appearance at hearing as its all so helpful to hear directly to both sides. In addition, given the complainants reference to the respondent resorting to legal advice in January 2022, I may have been in an opposition to allow the parties engage with a view to mutual resolution of their issues.

In arriving at both decisions, I have considered the oral and written submissions of the parties.

I am reminded that my sole jurisdiction in this case is given to me through the legislative framework of both pieces of employment legislation and not criminal law. If sabotage of company property arose and I have no direct evidence of this, just a loose assertion by the Respondent in an undated letter, that is completely separate to the employment law matter I now seek to address.

CA-00048623-001     Terms and Conditions of Employment

The Terms of Employment (Information) Act, 1994, as amended places a strict obligation on the Respondent in this case.

Written statement of terms of employment.

3.— (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) […]

(b) […]

(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) […]

F8[(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,]

(g) […]

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,]

(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—

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

(ii) pensions and pension schemes,

(l) 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,

(m) a reference to any collective agreements which directly affect the terms and conditions of the 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.

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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 2014);

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

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week.]

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.]

(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.]

(3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs] (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) or (1A) shall be signed and dated by or on behalf of the employer.

(5) A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

Based on the uncontested evidence of the complainant, at hearing and my clarifications directed to him, I am satisfied that the Respondent contravened Section 3 of the act, when they failed to provide the written statement within the first two months of employment.

I find the claim is well founded.

CA-00048623-002     Payment of Wages

The Law on Payment of Wages is set out in section 5 ( 1 ) and 5(2) of the Payment of Wages Act, 1991

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.

Section 5(6) of the Act provides:

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 have not reviewed a contract of employment in this case. I am satisfied that the complainant was paid a gross salary of €700.00 per week. From his uncontested evidence, I have found there is a shortfall of three weeks’ pay and unpaid annual leave on cessation, which was properly payable to him .

I find that the Respondent has departed from the mutuality of obligation in this employment relationship. A reliance on post-employment interference with company equipment was stated in an undated letter which has no probative value and cannot be elevated to an evidential basis.

I have found this constitutes a deduction in pay in accordance with Section 5(6) and has not been accompanied by a Complainant consent for this deduction.

I have also found that annual leave on cessation of employment was not paid.

I find the claim is well founded.

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-00048623-001     Terms and Conditions of Employment

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with section 3 of that Act.

The claim is well founded and I order the Respondent to pay the Complainant €2,800 as just and equitable compensation for the contravention of Section 3 of the Act.

CA-00048623-002     Payment of Wages

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 that Act.

The claim is well founded and I order the Respondent to pay the Complainant € 3,164 less statutory deductions as reasonable compensation for the contravention of Section 5 of the Act .This sum amounts to 3 weeks gross pay and unpaid annual leave on cessation of employment .

I would strongly encourage the Respondent to consider issuing written statement of terms of employment , going forward .

Unpaid wages, written terms of employment