ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00040584

Parties:

	Complainant	Respondent
Parties	Daryl Malone	Harmony Residential Care Limited

	Complainant	Respondent
Anonymised Parties

Representatives

William Wall Peninsula

Complaint:

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-00051779-001

21/07/2022

Date of Adjudication Hearing: 28/02/2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.

In particular, the Complainant herein has referred the following complaint:

A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.

By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 21st of July 2022 was submitted within the six-month period from the date of the alleged deduction. As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).

Background:

This matter was to be heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was to be conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

Had evidence been given it would have been in compliance with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came intoeffecton the 29th of July 2021, and which accommodates situations where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint. In such circumstances, an oath or an affirmation may be required to be administered to any person giving evidence before me. It is noted that the giving of false statements or evidence is an offence.

The Complaint herein was brought to the attention of the WRC on the 21st of July 2022 by way of a workplace relations complaint form.

Summary of Complainant’s Case:

The Complainant did not attend. I am satisfied that the Complainant was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 20th of January 2023 - and emailed to the email address provided by the Complainant on the workplace relations complaint form. The Complainant had specifically agreed to communication by electronic means when filling out his complaint form.

From the Complaint form provided, I have discerned that the Complainant asserts that the Respondent Employer failed to pay or was late in paying wages which were due to him. A complaint has been brought under the Payment of Wages Act.

I note that the Complainant was given more than five weeks’ notice of the date of this remote hearing. Five days before the hearing the Complainant contacted the WRC seeking a postponement. It does not appear that the Complainant specified the reasons for this late postponement application. He simply provided the WRC with personal medical documents for an unidentified third party (possibly the Complainant’s wife). The information contained therein does not disclose any reason why the Complainant could not proceed with the hour-long hearing set aside for his complaint to be heard.

The postponement was refused on the 23rd of February 2023.

The Complainant was also contacted by a member of the WRC team (the individual that had set up the remote hearing) on the morning of the hearing. The Complainant confirmed that he would not be attending.

Summary of Respondent’s Case:

The Respondent was fully represented. Two members of the Respondent staff appeared to give evidence on behalf of the Respondent entity. I was also provided with a comprehensive submission in advance of the hearing. It is evident that the Respondent was putting up a robust defence to the allegation being made.

Findings and Conclusions:

The Complainant did not come before the WRC to make his case. I am satisfied that the Complainant was on notice of the date and time of the hearing and was only obliged to attend on the basis of a remote hearing. The Complainant had previously sought a postponement which was refused and I am satisfied that the Complainant knew that this matter was proceeding at the appointed time and date.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

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

CA-00051779-001 – the complaint herein is deemed to be not well founded and I make no further direction.

Dated: 19th April 2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Key Words: