Complainant

Respondent

Parties

Eoin Roche

Zulleon Limited

Representatives

  self

 No show

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-00050519-001

09/05/2022

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

CA-00050519-002

09/05/2022

The Complainant stated that his contract of employment provides for a 3 months’ notice period.  He gave notice to his employer and communicated his intention to work his full notice period on or about the 1st March 2022. He alleges that his employer stopped paying him on or about the 31st of March 2022.

The Complainant stated that his employer informed him that they had stopped paying him as he had waived his right to working his notice. The Complainant refutes that assertion.

The Complainant also stated that during the first months of Covid lockdown his employer reduced his salary by 25% and had communicated to him and others that it was their intention to repay the loss at a point in the future. This period of payroll deduction took place from about April 2020 until August 2020.

The Complaint was lodged with the Commission on the 9th of May 2022.

His employment was terminated on or about the 30th of March 2022.

The Complainant’s gross monthly pay is €2916.66, and his net pay is €2416.83.

The contract clause relied upon by the Complainant states:

17. Termination & Notice

In the event of termination of your employment, you are required to give the Company, and the Company undertakes to give you three months’ notice in writing or such longer period as may be required by law. The Company reserves the right at its discretion to pay you in lieu of notice or place you on Garden Leave for some or all of your notice period.

CA-00050519-001

The employer unliterally terminated his employment. The Complainant never waived his contractual right to work out his notice.

CA-00050519-002

The employer made a promise to repay the deduction initially after a 6-month period and then reframed that promise to a time when they could repay.

CA-00050519-001

I am satisfied that the Respondent was notified of the hearing and failed to attend. As they were given the opportunity to present their case and failed to do so I can only determine the matters before me based on the sworn evidence given by the Complainant.

CA-00050519-002

I am satisfied that the Respondent was notified of the hearing and failed to attend. As they were given the opportunity to present their case and failed to do so I can only determine the matters before me based on the sworn evidence given by the Complainant.

CA-00050519-001

The Complainant has opened a comprehensive exchange of emails between him, his manager and legal representatives who corresponded with the Complainant on behalf of the employer. He has opened his employment contract. This correspondence trail and contract shows that a dispute existed between the parties concerning whether the Complainant had resigned; refused to work on a specific project or had been dismissed for failing to work on that project and had he waived his right to work 3 months’ notice. In the absence of any oral evidence by the Respondent I determine that the Complainant was entitled to work his notice period of 3 months. As payment ceased on or about the 30th of March 2022 and he gave notice of termination on the 1st of March 2022 I determine that 2 months salary was unlawfully deducted by the employer.

Section 5 of the Payment of Wages Act 1991 states:

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 any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by 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

On the facts there is no agreement between the parties for making this deduction and no consent in writing from the Complainant.

Section 6 of the Act states:

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

The complaint is well founded, and I award the complainant 2 months’ salary.  I direct the employer to pay the complainant 2x €2916.66(gross monthly salary) less any statutory deductions.

CA-00050519-002

The payments deducted commencing April 2020 do not appear to be lawful deductions. An issue arises concerning whether this complaint is made in time.

The amount of deduction appears to be a full month followed by 3 deductions of 25% of monthly salary. In other words, a total deduction of 1.75 times monthly salary.

The Complainant maintains that there was a representation made by the Company that they would repay that deduction. That representation was made on several occasions and the paperwork provided supports that assertion. The last date that representation was made was on the 5th of August 2021.

While this complaint was lodged in May 2022 the delay in making a complaint for repayment was because of the representations made by the employer that they would be repaid. It would be entirely unjust in these circumstances not to extend time for making a complaint based on the representation made in August 2021 by the employer that in fact the monies owed would be paid over the coming months.

Section 41(8) of the Workplace Relations Act 2015 states that:

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause

In Regan Employment Law (Bloomsbury 2017) at paragraph 28.25:

In Alert One Security Ltd v Khan, 49 the Labour Court extended time in circumstances where the complainant was both ignorant of how to process a complaint and was relying on the assurances given to him by the employer that he was either receiving his legal entitlements or that those entitlements would be met. The Court regarded it as ‘well settled’ that a material misrepresentation which caused or contributed to a delay in presenting a complaint could constitute ‘reasonable cause’ which both explained the delay and provided a justifiable excuse for same.

I determine that the Complaint is well founded and extend time for reasonable cause and award the Complainant 1.75 times €2916.66 (gross monthly salary) less any statutory deductions.

CA-00050519-001

The complaint is well founded, and I award the complainant 2 months’ salary.  I direct the employer to pay the complainant 2x €2916.66(gross monthly salary) less any statutory deductions. Total compensation of €5833.32.

On the facts there is no agreement between the parties for making this deduction and no consent in writing from the Complainant. The failure to honour the contractual term of notice and the withholding of 2 months’ salary was unlawful.

CA-00050519-002

I determine that the complaint is well founded and extend time for reasonable cause and award the Complainant 1.75 times €2916.66 (gross monthly salary) less any statutory deductions. Total compensation of €5104.15.

On the facts there is no agreement between the parties for making this deduction and no consent in writing from the Complainant. The deduction was unlawful and the delay in bringing the Complaint solely arose based on misleading representations from the employer that the monies would be repaid over the coming months.

Unlawful deductions-Misrepresentation-No written consent-Reasonable Cause