ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030356
Parties:
| Complainant | Respondent |
Parties | Anatolijs Karnickis | Redlough Landscapes |
Representatives |
| Liam Loughnan – Director Kevin Kelly – Accounts and Payroll
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Complaint:
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-00040634-001 | 27/10/2020 |
Date of Adjudication Hearing: 11/06/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
By way of preliminary observation, I am satisfied an Employment relationship existed between th3e parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 27th of October 2020 allows me to consider the six month period immediately preceding that date.
Background:
The Complainant issued a workplace relations complaint form on the 27th of October 2020. His claim relates to the period from the 28th of April 2020 to the 27th of October 2020.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.
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Summary of Complainant’s Case:
The Complainant made his own case in person and with the assistance of an interpreter. The Complainant was not represented. The Complainant gave his own oral evidence and additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with no supplemental documentary evidence in support of the Complainant’s case. The Complainant’s evidence was challenged by the Respondent. The Complainant says his remuneration was unlawfully deducted. I was not provided with the signed Contract of Employment though was advised one would be sent to me. |
Summary of Respondent’s Case:
The Respondent’s Representatives included a Director and a Finance Officer. The Respondent rejected the allegation. The Respondent provided me with some supplemental documentation which was opened in the course of evidence and which provided assistance to better understand what was happening in the workplace. As agreed, the Respondent provided me with a sample payslip after the hearing. I was not provided with the signed Contract of Employment though was advised one would be sent to me. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant commenced his employment with the Respondent in and around February 2020. His understanding is that he was engaged as a General Operative at a rate of €11.00 per hour. He says he worked a 42.5 week. This gave him a Gross wage of €467.50. The Complainant noted that his wages appeared to reduce during the pandemic although his hours remained static at in and around 42.50. The Respondent company explained to me that the Respondent availed of the Temporary Wage Subsidy Scheme from the 3rd of April to the 27th of August 2020. For the Complainant this was a 20 week period. Mr. K the Financial Operator on behalf of the Respondent explained to me that the TWSS was set up to be implemented as a Nett pay arrangement. The objective was to get whatever would be 85% of the normal nett weekly wage to the worker. After tax the Complainant would ordinarily have been getting circa €402.05 into his hand i.e. where he was getting €11.00 per hour gross and being deducted tax and PRSI. The Complainant was incorrectly seeking evidence of an €11.00 per hour payment in these circumstances. The Respondent was paying him a state funded covid payment of around €315.00 together with salary top-up of in and around €55.00 which gave rise to nett take home payment of €370.00. This gave the Complainant about €370.00 into his hand. I was provided with a spreadsheet which bears these figures out. It was further explained to me that the Complainant was paid 85% of the difference between that nett payment which he should have been paid (€402.00) and what he was paid (€370.00) when he came off the TWSS in and around the middle of August 2020. This was an additional payment of €462.00. I fully accept that this was a complicated scheme and that there lots of moving parts. The TWSS scheme was ever-changing arrangement as time went on. However, I can find no evidence of an unlawful deduction having been made. The parties entered these emergency arrangements to preserve their livelihoods. Despite having told me that a copy of the Contract of Employment would be sent after the hearing, this was never sent. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00040634-001 – I find that no unlawful deduction has been made from the Complainant’s wage in the period from April to August 2020.
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Dated: 15-06-2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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