Complainant

Respondent

Parties

Brian Cumiskey

Nibeck Ltd

Representatives

Self-represented

Marianne Deely,  Brian P Adams and Company Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00046188-001

13/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046188-002

13/09/2021

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

CA-00046188-003

13/09/2021

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

CA-00046188-004

13/09/2021

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

CA-00046188-005

Duplication of

CA-00041688-003

13/09/2021

The respondent is a franchisee who operates a Daybreak store in County Louth.  On February 16th 2020, the complainant transferred from his employer, Samajon Limited, to the respondent, under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.  He had started with Samajon on September 2nd 2018, when that business operated as a Centra store.  The complainant worked 40 hours every week, for which he was paid €450.  He resigned from his job on August 17th 2021.

These complaints concern the alleged failure of the respondent to provide the complainant with a contract of employment or a statement setting out his terms and conditions of employment.  He also complains that he was not notified in writing of the change in his role when he was promoted to a supervisor in May 2020 and to a manager in May 2021.  Finally, the complainant claims that, when his employment ended, he was not paid his final week’s wages or his outstanding holiday pay. 

CA-00046188-001:  Complaint under the Payment of Wages Act 1991

In his evidence, the complainant said that his Revenue record shows that, on August 15th 2021, wages were processed for him; however, he received no wages.  He said that he normally got a payslip with his wages, but he didn’t get a payslip for that week, which was his last week in the job.

On August 17th 2021, the complainant attended a meeting in the store where he worked with the director, Mr Aggarwal and the area manager, Ms Kenny.  He was accompanied by his mother.  He said that he agreed that the wages he was due for that week and his outstanding holiday pay would not be paid to him but would go towards reimbursing his employer for money that was missing.  He said also that he brought €4,000 from his savings to the shop as part-payment for the missing funds.

When I asked him why he was now making a complaint about the fact that he wasn’t paid his wages, he said that he felt under pressure on the day, because the room where the meeting took place was small and there was a lot of people present.  He said that he didn’t sign any document to confirm his agreement to reimburse his employer from his wages.

CA-00046188-002:  Complaint under the Organisation of Working Time Act 1997

This complaint is about the failure of the employer to pay the complainant his outstanding holiday pay when he left his job on August 17th 2021.  The complainant’s position on this matter has been set out above under the heading of the complaint under the Payment of Wages Act.

CA-00046188-003:  Complaint under the Terms of Employment (Information) Act 1994

The complainant claimed that he never received a statement in writing of his terms and conditions of employment since he transferred to this employer on February 16th 2020.  He agreed that he received a contract from the transferee, Samajon Limited, when he started with that company on September 2nd 2018.  He said also that there was a gap of one week in his service, around the time of the transfer, when he left to work in Dunnes Stores and then decided to return to work for the respondent.

CA-00046188-004:  Complaint under the Terms of Employment (Information) Act 1994

Also, under the heading of the Terms of Employment (Information) Act, the complainant claims that he was not provided with written confirmation of his promotion to the role of supervisor in May 2020 and manager in May 2021.

CA-00046188-001:  Complaint under the Payment of Wages Act 1991

On behalf of the respondent, Ms Deely said that, in the lead up to August 17th, Mr Aggarwal identified a problem of theft in the store where the complainant worked.  He informed the local Gardaí.  On August 17th, Mr Aggarwal had a meeting with the complainant, who was accompanied by his mother.  The area manager, Ms Kenny also attended.  Ms Deely said that the meeting took place in two halves, with some hours between both halves.  After the first meeting, she said that the complainant returned to the shop with his mother and gave his employer €4,000.  He told his employer that his wages and whatever holiday pay he was due could be kept.  Ms Deely said that the complainant was due one week’s wages of €450 and pay for 97 hours’ holidays, amounting to €1,091.25.  The total gross pay due to the complainant was €1,541.25 and the net pay was €994.68.  Ms Deeley said that there was no agreement in writing regarding the payments to the employer. 

CA-00046188-002:  Complaint under the Organisation of Working Time Act 1997

The facts of this complaint are included in the details of the complaint under the Payment of Wages Act above.

CA-00046188-003:  Complaint under the Terms of Employment (Information) Act 1994

Ms Deely said that the complainant was provided with a statement of his terms and conditions of employment when he commenced with Samajon Limited on September 2nd 2018.  It is the respondent’s position that the complainant transferred to their employment in February 2020 and no regard was taken of the gap of one week when he went to work in Dunnes Stores.  There were no changes to the complainant’s terms of employment arising from the transfer and it is the respondent’s position that there was no requirement for them to issue a new statement.  Following the hearing, Ms Deely provided me with a copy of the statement of the complainant’s terms and conditions.

CA-00046188-004:  Complaint under the Terms of Employment (Information) Act 1994

Ms Deely said that the complainant was promoted to a supervisory job in May 2020 and, a year later, he was promoted again, this time to the job of manager.  She agreed with the complainant that he was not provided with confirmation in writing of the change to his job.  Ms Deely said that the respondent relies on the provision in the complainant’s statement of his terms and conditions which states:

“We reserve the right to make amendments to your conditions of employment, following a period of consultation with you and with the provision of 28 days’ notice of any change coming into effect, taking into account the requirements of the business and legislation governing your employment.”

CA-00046188-001:  Complaint under the Payment of Wages Act 1991

The Relevant Law

Section 5(1) of the Payment of Wages Act 1991 sets out the parameters according to which deductions may be made from an employee’s wages:

(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.

It is clear from this section that a deduction from an employee’s wages may only be for statutory reasons, such as tax, PRSI and USC.  Also, a contract of employment may contain a provision for a deduction, and, in these circumstances, an employee must give their written consent to the deduction in advance.

Section 5(6) addresses the circumstances in which wages which are properly payable are not paid:

(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.

When his employment ended on August 17th 2021, the complainant was due wages for the previous week and pay for 97 hours of holidays that he had not taken up to the date of his termination.  The complainant’s evidence was that, on August 17th, he agreed that the money due to him should go towards reimbursing his employer.  Later however, he felt that he made this decision under pressure.  He did not provide written confirmation that he would repay his employer from his wages.  From the perspective of this enquiry, my task is to consider if, when the complainant agreed to not take his wages and to recompense his employer for missing funds, were his wages properly payable?   

Findings

I accept the evidence of both sides that the complainant’s wages were not paid because he agreed to pay back money to his employer arising from an investigation into missing money.  However, the legislation is clear and there was no provision in the complainant’s contract of employment for such a deduction, and he did not agree in writing, in advance, that he would not be paid his wages and holiday pay.  It is my view that, on August 17th 2021, regardless of his agreement to repay his employer for missing money, his wages were properly payable.  I find therefore, that the deduction was unlawful.

CA-00046188-002:  Complaint under the Organisation of Working Time Act 1997

Based on the findings set out under the heading of the previous complaint, I am satisfied that, at the termination of his employment, the complainant was not paid in lieu of the holidays he had not taken up to his last day at work and that pay for these holidays remains due.

CA-00046188-003:  Complaint under the Terms of Employment (Information) Act 1994

I am satisfied that, from the date of his commencement with Samajon Limited on September 2nd 2018, the complainant was in possession of a statement setting out his terms and conditions of employment.  I am further satisfied that there was no requirement for the respondent to issue the complainant with a new statement on the date of his transfer on February 16th 2020.

CA-00046188-004:  Complaint under the Terms of Employment (Information) Act 1994

The Relevant Law

Section 5 of the Terms of Employment (Information) Act 1994 addresses the requirement for an employer to provide a written notification to an employee if there are changes in a statement previously issued:

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

Subsection (b) and subsection (2) are not relevant to the complaint under consideration here.

A copy of the complainant’s “Statement of Main Terms of Employment” dated September 2nd 2018 was provided by the respondent’s solicitor, Ms Deely, shortly after the hearing of this complaint on November 3rd 2022.  The statement shows that the complainant was employed as a full-time sales assistant.  At the hearing, Ms Deely confirmed that the complainant was promoted firstly in May 2020, to the position of supervisor, and then in May 2021, to the position of manager.  These changes were not confirmed in writing and Ms Deely argued that the phrase in the Statement of Main Terms of Employment regarding any future changes to the complainant’s terms was adequate to encompass the requirements of section 5(1) above.

The issue I must decide is, when the complainant was promoted, was the respondent legally obliged to issue a written notification of the change?

Findings

I have considered the respondent’s case that the statement issued to the complainant provides that his terms and conditions may be amended, in consultation with him.  I am satisfied also that he was promoted, following some form of consultation and that he accepted the change.  However, the clause in his Statement of Main Terms of Employment does not state that any changes will take effect without them being confirmed in writing.

Having considered this complaint, I am certain that no disadvantage arose for the complainant from the failure of the respondent to issue a letter confirming the change to his role in May 2020 or May 2021.  However, the fact that no detriment occurred does not ameliorate the fact that there was a breach of section 5(1) of the Terms of Employment (information) Act, because the change in the complainant’s role is a change in the “particulars” included in the Statement issued to him in September 2018.

CA-00046188-001:  Complaint under the Payment of Wages Act 1991

I decide that this complaint is well-founded and that there has been an illegal deduction from the complainant’s wages in respect of pay for his last week of employment and for 97 hours of holidays not taken.  The gross amount not paid to the complainant was €1,541.25.  In accordance with section 6 of the Payment of Wages Act 1991, as amended, I am required to direct the respondent to pay compensation as a net amount.  Taking account of the deductions on his payslip dated August 15th 2021, I decide that the respondent is to pay the complainant compensation of €994.68.

CA-00046188-002:  Complaint under the Organisation of Working Time Act 1997

I have decided that this complaint is well founded and I have included the amount of redress due in my decision under the complaint under the Payment of Wages Act above.

CA-00046188-003:  Complaint under the Terms of Employment (Information) Act 1994

I decide that this complaint is not well founded.

CA-00046188-005:  Complaint under the Terms of Employment (Information) Act 1994

I decide that this complaint is well-founded.  I am mindful of the fact that the complainant was informed of his promotions and that he did not raise any concern about the fact that the changes were not confirmed in writing.  Taking all the facts into account, I decide that the respondent is to pay the complainant compensation of €450, equivalent to one week’s pay.

CA-00046188-003:  Complaint under the Terms of Employment (Information) Act 1994

This complaint is a duplicate of CA-00046188-003, which I have decided is not well founded.

Illegal deduction from wages, changes in the particulars of employment, statement of terms and conditions of employment