Complainant

Respondent

Parties

David  Mc Cormack

Instant Upright

Representatives

Derek Beegan, Connect Trade Union

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-00049990-001

27/04/2022

The complainant was employed by the respondent from 02/01/2017 until he was dismissed by reason of redundancy on 09/04/2022.  The complainant submits that the respondent failed to pay him while on sick leave and that he did not pay him properly in relation to commission and other allowances when he was dismissed by reason of redundancy. 

The complainant had three separate occasions when was not properly paid by the respondent:

1)      During a period when he was on sick leave at the end of 2021.  Previously he received his full pay and on these occasions the respondent unilaterally paid him 60% of his basic pay.  Any previous sick leave in the years 2019, 2020 and 2021 were paid at full pay.

2)      When the complainant was made redundant the respondent did not pay him in lieu of notice in accordance with the contract of employment.

3)      The complainant was not paid his proper commission.

The complainant and his representative presented the hearing with a detailed breakdown of the loss incurred.

For the period of sick leave, the complainant submits that he is due €5,965.94

For the payment in lieu of contractual notice the complainant submits that he is due:

(a)    Basic pay: €2,916.66

(b)    Commission: €9,803.08

(c)     Car allowance: €500

Sub Total: €13,219.74

Overall Total: €19,185.68

All of these payments should have been paid when the complainant was dismissed by reason of redundancy on 09/04/2022.

The complainant’s representative explained to the hearing that when the complainant raised a query with the respondent about the reduction in his wages, he was informed that the respondent was entitled to do so due to a “Company/TEEU Works Agreement” dated 9/10/2016.  The representative explained that this agreement applied to shop floor workers and had no application to “office staff”.  The complainant was not party to this agreement, did not sign it and only saw it for the first time when he raised the query.

The respondent of a representative on its behalf did not attend the hearing.  The Workplace Relations Commission was advised by the respondent’s representative the day prior to the hearing that he was coming off record.

I am satisfied that the respondent was on notice of the date, time, and location of the hearing.

The complainant made written submissions in relation to this complaint.  There was also oral evidence provided at the hearing. I have carefully considered and evaluated the submissions and evidence adduced in reaching my determination as set out below.

In his claim the complainant submitted that the respondent made an unlawful deduction from his wages.  Section 1 of the Payment of Wages Act, 1991 defines wages as:

“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 this employment, whether payable under his contract of employment or otherwise,”

Deductions made by an employer from the wages of an employee are set out in Section 5 of the Act as follows:

“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.”

Having carefully considered the circumstances involved in the within case I am satisfied

(a)    that the reduction of 40% of the complainant’s basic pay while on sick leave represents a deduction from his wages and the respondent failed to repay the amount of €5,965.94 on 09/04/2022.

(b)    That the complainant was not properly paid his contractual notice when his employment ceased on 09/04/2022 leaving a shortfall of €13,219.74

Taking into account the application of Section 5 (1) (a) as outlined above, I am satisfied that these deductions were not required or authorised by any statute or instrument under statute.

Taking into account the application of Section 5 (1) (b) as outlined above, I am satisfied that there is no term or clause in the complainant’s contract of employment dated 07/12/2017 which explicitly requires or authorises a deduction from his wages or makes any reference to the likely circumstances in which such a deduction might occur.  I am also satisfied that the agreement between the respondent and the TEEU dated 09/09/2016 clearly states that “it relates only to all hourly paid employees who are members of the TEEU”.

Taking into account the application of Section 5 (1) (c) I am satisfied that the complainant did not give his prior consent in writing to any of the deductions from his wages.

In view of the above findings, I must now consider the issue of redress which is outlined in Section 6 (1) of the 1991 Act as follows:

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)                the case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date or 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.”

Based on the uncontested evidence I decide that the complainant is to be paid the sum of €19,185.68

Having carefully considered all of the evidence adduced and based on the findings and conclusions detailed above, I find that the complainant’s complaint under the Payment of Wages Act, 1991 to be well founded and I direct the respondent to pay the complainant the sum of €19,185.68 gross.  This amount is subject to the normal statutory deductions in relation to pay.  This amount is to be paid no later than six weeks from the date of this determination.

Deduction of wages.