FULL RECOMMENDATION
PARTIES : MARC O'MAHONY AND THE GOOD FOOD SHOP DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00032452 CA-00042962-001 This is an appeal under the Payment of Wages Act, 1991, ‘the Act’. Ms. Delamico, ‘the Complainant’, was employed by Mr. Marc O’ Mahony and the Good Food Shop, ‘the Respondent’, from July 2020 to September 2020. The Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, that she was not paid for three days i.e. 16, 17 and 20 July 2020. The Respondent submitted that the Complainant was not in the employment on those days. The Adjudication Officer, ‘AO’, decided that the complaint was well founded. The Respondent appealed to this Court. Note; The Complainant’s submission to the Court was received late. The Respondent was asked if he was happy to proceed and he indicated that he was. Summary of Respondent Arguments The Complainant only commenced in the employment on 23 July 2020. On 16,17 and 20 July 2020 she was in training which, as per the contract given to her, were training days in respect of which it was made clear that she would not be paid. Only upon successful completion of this training is a job applicant offered a position. The only issue raised by the Complainant at the time related to payment for a Bank Holiday. It was not until proceedings before the WRC that the issue covered by this complaint was raised. Posts in the foodstall are advertised by having a sign outside. Every applicant was given a copy of the basic job requirements, which were discussed further at interview. The Respondent went through these personally with the Complainant. The ‘hours worked’ sheet prepared by the Complainant show this time as unpaid training. The text produced to the Court offering employment shows that the employment was to start on 23 July 2020. A further text shows that she was asked to advise Revenue of this start date, to which she responded with a request to postpone registration for a week. Further texts make no mention of payment for the dates in question. The standard contract of employment provided to the Court allows for the employee’s name and start date to be hand-written. The Complainant signed a version that she created and she back-dated her start date to 16 July 2020. That is not the hard copy that she was given and is not signed by the Respondent like the real copy. The Complainant was training on the days in question. She was not working and she was not in the employment. There was a written agreement made with her prior to her commencing employment. This is an issue of principle and is not about the amount of money. Summary of Complainant Arguments The Complainant worked as a Shop Assistant in the same manner as other staff on 16,17 and 20 July 2020. She served customers, she worked on the till etc. She worked from 9 am to 6 pm on two days and from 9 am to 4.30 pm on the other day. The Complainant did not see any contract in advance of commencing employment that provided that these days would be unpaid and did not consent to same. She received the contract after she had worked the three days. The Complainant believed that if she secured the job, she would be paid subsequently for the days concerned. The Complainant worked the hours and is entitled to be paid for them. The Applicable Law Payment of Wages Act “ 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, 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. Complaint to adjudication officer under section 41 of Workplace Relations Act 2015 6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as 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. (2) ( a ) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment. ( b ) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment Decision of Labour Court on appeal from decision referred to in section 6 7.— A decision of the Labour Court under section 44 of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to in section 6 , shall affirm, vary or set aside the decision of the adjudication officer. Deliberation The issue in this case for the Court to consider is whether the Complainant has an entitlement to be paid for her attendance at the Respondent’s premises on 16, 17 and 20 July 2020. It is common case between the parties that she attended the workplace on those dates. The purpose of the Act is clear in establishing the right of a worker to be paid for time spent working for an employer. In this case the Respondent disputes the claim that the Complainant was in employment on the dates concerned and states that, by agreement, the Complainant attended in an unpaid capacity for training on these dates. In support of this position, the Respondent submitted a copy of the standard contract for the employment and text exchanges regarding the Complainant’s start date. The Complainant states that she was not notified in writing, prior to the dates concerned, that she would not be paid for those dates and that she understood that she would be paid subsequently at a later date if she secured the job. She states that she never signed any agreement to attend on the dates concerned without receiving payment for same. The Respondent was unable to provide the Court with a signed copy of a contract to support the argument that the Complainant commenced work on 23 July 2020 and he was unable to provide any other written evidence to rebut the stated position of the Complainant that she was under the impression that she would be paid for the days that are in contention if she secured the job. The fact that he sent a text to the Respondent stating a start date of 23 July 2020 does not, of itself, address the question as to whether she was entitled to be paid for the earlier dates. The Act is clear that it is only in very specific circumstances that an employer is entitled not to pay an employee for their attendance. The argument that the Complainant was not an employee on those dates and that she, willingly, attended the workplace for non remunerative training is not supported by any signed agreement produced to the Court. Therefore, even if there was no written contract to establish that the Complainant was an employee on 16,17 and 20 July 2020, the fact that she was required to attend the workplace for three days establishes a contractual relationship. In circumstances where it is accepted that the Complainant attended the workplace for three working days and in the absence of any written evidence that would enable the Respondent to rely upon the provisions of s.5 of the Act, as set out above, the Court cannot conclude that the exceptions provided for in that section to permit deductions from employees’ wages can be relied upon. Therefore, the basic protections offered by the Act in ensuring that workers are paid for periods when they attend for work are applicable in the instant case in respect of the dates of 16, 17 and 20 July 2020. Based on the hours worked on those dates, (22.5) at €10.10 per hour, the Complainant is entitled to be paid a sum of slightly above €227 plus holiday pay of €18, giving a total of €245. The Court determines that this sum should be paid by the Respondent to the Complainant. Determination The Decision of the Adjudication Officer is affirmed.
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