Complainant

Respondent

Parties

Kamile Puodziulaityte

Word Perfect Translations Ltd

Representatives

Self-represented 

Anthony Slein BL instructed by MS 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-00041783-001

04/01/2021

The complainant was owed wages in October, November and December 2020 and referred this complaint to the Workplace Relations Commission. The wages were subsequently paid to her, and the questions are whether there was a contravention as of the date of adjudication and whether redress can be awarded per the Payment of Wages Act.

The complainant outlined that she started to work for the respondent in September 2020 but was only paid in January 2021. This was because the respondent would not pay her while she did not have a PPSN. She tried to contact the Department of Social Protection multiple times and had to avail of Twitter to get this resolved. She explained to the respondent that they could pay her prior to her having a PPSN if they applied emergency tax, but the respondent refused to do this.

Not being paid was a big struggle for the complainant as she had to borrow money and had to pay rent. The respondent paid her later, but it was unfair not to pay her at the time it was due. The complainant outlined that she was supposed to be paid about €2,046.60 during those months.

In reply to the respondent, the complainant said that this was not about her getting paid, but the 3.5 months of her immense struggle when she tried to talk to management about resolving this. She was not told of the payroll issue cited by the respondent. She said that employers should adapt their systems to resolve this. The complainant said that this was 3.5 months of stress that cannot be brushed off.

The respondent outlined that the complainant was paid after the lodging of the complaint. It was submitted that the provisions of the Payment of Wages Act required the adjudication officer to determine whether there was an unlawful deduction; to ascertain the amount of any unlawful deduction and then to award redress.

In this case, it was submitted that the payment was made, even if late and that was the end of the matter. This matter should have been raised via the Industrial Relations Act. The payment was made on the 15th January 2021 so there could not be an unlawful deduction as of the date of the adjudication. There was a misunderstanding with the respondent regarding the requirement to have a PPSN and the alternative of applying emergency tax. It was submitted that stress and anxiety could not be compensated via the Payment of Wages Act.

CA-00041783-001

This is a complaint pursuant to the Payment of Wages Act. It was referred to the Workplace Relations Commission on the 4th January 2021. The complainant stated in the complaint form that she was owed €2,046.60 in respect of her employment, which began on the 3rd September 2020.

The complainant was waiting on a PPSN to be issued to her and she informed the respondent that she could be paid before a PPSN was issued if emergency tax was applied to her pay. The complainant outlined that not being paid meant that she struggled and had to borrow money. The complainant was given a PPSN on the 12th January 2021, which she forwarded to the respondent. The complainant was paid the monies due on the 15th January 2021. The contract of employment provides that the employee shall be paid in arrears on the 15th day of the month.

The respondent outlined that the monies due to the complainant were paid on the 15th January 2021 and there could therefore be no finding of a contravention, nor a basis to award compensation. The respondent submitted that once the monies due were paid, there was no unlawful deduction and no contravention of the Payment of Wages Act.

Having considered the legal arguments, I find that the question of whether there was a contravention of section 5 of the Payment of Wages Act is assessed as of the date the complaint is referred to the Workplace Relations Commission. Furthermore, I find that where it is held that there has been a contravention of section 5, then redress is assessed as of the date of hearing, taking into account whether the monies due were paid in the interim.

I reach these findings for the following reasons. The Payment of Wages Act provides protection to employees to ensure that they are paid their wages as they fall due. The Act restricts the circumstances that an employer can make deductions to wages which are due. Section 6 provides that where a complaint of an unlawful deduction is deemed well-founded, then ‘compensation’ that is reasonable may be awarded.

In this case, the complainant ought to have been paid on the 15th October, 15th November and the 15th December 2020. She was not paid on these occasions, so these are contraventions of the Payment of Wages Act. I note that the respondent did not pay the complainant as it then considered that a PPSN was required, something it accepts is not the case. However, this left the complainant as working for the respondent, but not getting paid. The complainant was clear as to how she could be paid, pending receiving a PPSN.

It is clear that the complainant was at a loss because of the delay in paying her. She had to live and pay rent without this income. The work/wage bargain is at the centre of the employment relationship and delay in getting paid represents a breach of this bargain. An employee cannot say to an employer that they want to get paid but not do work for the present. Ditto for the employer. In this case, the complainant was working and billing clients for the respondent, but not getting paid.

It is significant that the Oireachtas chose ‘compensation’ in section 6 to describe the redress to be awarded under the Payment of Wages Act. The job of the adjudication officer is to give legal effect to the words chosen by the Oireachtas. ‘Compensation’ should therefore be given its ordinary meaning, i.e. redress to include consequential loss. Here, the complainant incurred loss in not being paid and in not being paid on time. As she has since been paid the wages due, redress is to be awarded for the loss incurred in the delay in getting paid.

To approach this question otherwise would significantly undermine the ‘further protection’ offered by the Payment of Wages Act. ‘Further protection’ are the words used in the Long Title of the Act and there would be no further protection if all the employer was required to do was pay what was due anyway. If there is a contravention of the Act, the employee must be able to recover for the consequential loss incurred because of the contravention. Of course, this is purely compensatory and not punitive.

I note in this case that the respondent paid the monies due in January 2021, following the submission of the complaint and the complainant providing a PPSN. There were, however, wages due from each month of October, November and December 2020. I award compensation of €150 for the delay in paying the October amount, €100 for the November delay and €50 for the December delay. The sum of these amounts is €300.

This is just and equitable as it reflects the loss incurred by the complainant from the 15th October 2020 to when she was paid in January 2021. The higher award for the monies due on the 15th October 2020 is merited as the complainant was particularly busy in September 2020 and this should have been paid to her in October.

CA-00041783-001

I decide that the complaint pursuant to the Payment of Wages Act is well-founded and I direct that the respondent pay to the complainant compensation of €300.

Payment of Wages Act / compensation