Complainant

Respondent

Parties

Juanita  Weblin

Capita Customer Solutions Limited

Representatives

  Self-Represented.

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-00051306-001

25/06/2022

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

CA-00051306-002

25/06/2022

The Complainant commenced employment as a customer care agent with the Respondent in February 2020. She worked a 32-hour week for a net salary of €1600 per month. The Complainant has two complaints: (1) That she was unlawfully deducted wages contrary to section 5 of the Payment of Wages Act 1991 (the 1991 Act), set out in the complaint form as the sum of  €1600  and (2) that she was not paid for holidays accrued since 1 April 2022 to her termination date of 25 May 2022, contrary to section 19 of the Organisation of Working Time Act 1997 (the 1997 Act).

Summary of the Evidence of the Complainant:

CA-00051306-001: Payment of Wages claim.

The Complainant was on certified sick leave from October 2021 to 1 April 2022.  On 20 December 2021 she noticed that she had been paid monies into her account.  She immediately messaged her supervisor (message exhibited) and said that she checked her  bank account and noticed that there was money paid in  from the Respondent. She checked if this was correct and offered to pay it back if it was not correct. She got a message back from the supervisor to say that it was correct and that she was on half-pay now.

Before coming back to work in April 2022 she spoke with her supervisor and was informed that she had seven days’ holidays to take. She decided to take these before she returned to work on 19 April 2022 but got no pay at the end of April. She was assured that, a now, new supervisor would look into this. The supervisor came back to her and said she was over paid. She received no notification of what the overpayment was or when it would be deducted.

She also received no pay at the end of May after working her usual 32 hr shift weeks.  In June it was much of the same except she got a payment of €803  which was less than half of what she was due. She resigned her position on 25 May 2022 because of the treatment she received.

CA-00051306-002 Annual Leave:

The Complainant stated that she did not receive her annual leave entitlement from April 1, 2022, to 25 May 2022, upon termination of her employment.

The Respondent did not attend the hearing.

CA-00051306-001: Payment of Wages claim.

Section 5 of the 1991 Act provides in its relevant parts: -

Regulation of certain deductions made and payments received by employers

(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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless–

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services…

(5) Nothing in this section applies to–

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of–

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment…

Based on the uncontested evidence of the Complainant, and in the absence of any evidence from the Respondent, I find that the claimed net sum of €1600 was unlawfully deducted from the wages of the Complainant contrary to section 5 of the 1991 Act. I decide therefore that the complaint was well founded, and I order the Respondent to pay the Complainant the net sum of €1600 which I believe is reasonable under the circumstances.

CA-00051306-002 Annual Leave:

Section 19 of 1997 Act 1997 sets out an employee’s entitlement to Annual Leave where it states: -

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

[(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer's disposal, and

(b) carrying on or performing the activities or duties of his or her work.]

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

Section 27(3) sets out the criteria for the Adjudication Officer when deciding the amount of compensation to be awarded under the 1997 Act as follows:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

The uncontested evidence of the Complaint was that she was not paid annual leave by the Respondent for days worked between 19 April 2022 and 25 May 2022. I find that he complaint was well founded and I order the Respondent to pay the Complainant the sum of €200 which I believe to be just and equitable having regard to all the circumstances.

CA-00051306-001: Payment of Wages claim.

For the reasons outlined above, I find that the complaint was well founded, and I order the Respondent to pay the Complainant the net sum of €1600.

CA-00051306-002 Annual Leave:

For the reasons outlined above, I find that the complaint was well founded, and I order the Respondent to pay the Complainant the sum of €200.

Payment of Wages Act 1991, Annual Leave, the Organisation of Working Time Act 1997