Complainant

Respondent

Parties

Marius  Paskocimas

Bmc Mini Mix Concrete

Representatives

  N/A

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-00042285-001

03/02/2021

The Complainant commenced employment as a Driver with the Respondent on 17 August 2020 and was paid €500 net per week. He claimed that he did not receive any payment for his outstanding holiday entitlements from the Respondent when he finished his employment.

The Complainant alleged that he did not receive his outstanding holiday entitlements in his last pay and was informed by the Respondent that he would not be paid for it because he did not work out the two weeks’ notice that he had promised.

The Respondent stated that the Complainant was paid his full holiday entitlements even though he did not work his full notice period.

THE LAW

Section 1 of the Payment of Wages Act 1991 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,

The Act at Section 5, in relevant part, provides 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.

And

5(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.

FINDINGS

I note the Complainant’s assertion that he did not receive the payment of his holiday entitlements in his final pay and the Respondent’s assertion to the contrary.

Having listened to the evidence and reviewed the documents submitted by both sides, I am satisfied that the last day worked by the Complainant was Wednesday 9th December 2020. I believe that the confusion may have arisen on behalf of the Complainant because of the way in which payment is made by the Respondent. Specifically, payment is made by the company partially in advance so that the payment the Complainant received on 9th December 2020 was in respect of hours worked from 7th December 2020 to the end of the week 13th December 2020. Given that the Complainant left the Respondent’s employment on 9th December 2020 but that the Respondent paid him for 10th and 11th December even though he had left the business, I am satisfied that these two days can be deemed holidays. I further note that the Complainant received a further three days’ pay on 18th December and that these three days are all deemed holiday pay.

In summary, I note that the Complainant was entitled to 6.38 days holiday in respect of his 16.6 weeks’ service with the Respondent but that he was only paid 5 days in total. I find therefore that on the basis of a net daily rate of pay of €100, there is an outstanding holiday entitlement of €138.

I find that the complaint is well founded and that the Respondent should pay the Complainant €138 net in respect of the shortfall in holiday pay.

Shortfall; holiday pay