ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044623
Parties:
| Complainant | Respondent |
Parties | Damian Basak | Cians On Bridge Street |
Representatives | Self | No attendance |
Complaint(s):
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-00055326-001 | 28/02/2023 |
Date of Adjudication Hearing: 03/08/2023
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. Notice of the hearing was issued to the Respondent by post on 21 June 2023. The notice was returned to the WRC marked ‘gone away’ on 5 July 2023. The address provided by the Complainant was his former place of work with the Respondent. As I am satisfied that every reasonable effort was made by the WRC to notify the Respondent of the hearing of the complaint, I proceeded to take sworn evidence from the Complainant. In advance of the hearing the Complainant provided very useful information, including payslips and a bank statement in support of the specific amounts paid and claimed as unpaid in wages. The parties are named and the generic terms Complainant and Respondent are used in the body of the text to describe the parties.
Background:
This case is concerned with a complaint of non-payments or payments of wages and statutory holiday entitlements which he claims were withheld from him during and at the end of his employment. Each amount claimed by the Complainant was discussed and evaluated in arriving at Findings and a Decision.
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Summary of Complainant’s Case:
The Complainant was employed as a chef in the named employment from 09.02.22 until 09.01.23. The number of hours worked and the days rostered varied each week. The hourly rate of ay was €14 per hour. Wages Withheld The Complainant gave evidence of wages withheld from him during his employment amounting to €1786.13. He provided a detailed breakdown of this amount with supporting payslips and his bank account showing payments which were received. The period of underpayment or withholding of payments occurred between 16.11.22 and 09.01.23. These were claimed as follows: 16.11.22 €549.56 23.11.22 €489.50 30.11.22 €509.52 14.12.22 €484.49 09.01.23 €403.06 The total amount claimed amounts to €1786.13 (taking into account payments of €350 and 300 received by the Complainant on 02.12 and 15.12.22. Annual Leave Entitlements withheld The Complainant provided payslips which showed that in the week of 20.07.22 of 2022 he received 30 hours holiday pay and in the week of 27.07.22 he received another 30 hours of holiday pay. The complaint submitted was for five days unpaid annual leave. Public Holiday Pay The complainant calculated that he was owed nine days for public holidays in 2022 and one day in 2023 based on the calendar years in which he worked February to December 2022 and a week in January 2023. His evidence is that he did not receive either additional days pay on public holidays when he did work or a payment for public holidays based on a proportion of his working hours in the previous for weeks when he was not rostered to work on a public holiday. His evidence is reflected in the pay slips provided which do not indicate any public holiday payments made to the Complainant.
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Summary of Respondent’s Case:
The Respondent did not attend and was not represented-see Procedures above. |
Findings and Conclusions:
PAYMENT OF WAGES ACT 1991 Regulation of certain deductions made and payments received by employers. 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. (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
Unpaid wages/wages withheld Based on the available evidence, the Respondent unlawfully withheld wages from the Complainant which were properly payable to him amounting to €1786.13. Annual Leave Entitlements withheld The Organisation of Working Time Act 1997 provides that an employee shall have up to twenty days paid annual leave(pro rata for those working less than the qualifying hours) during the statutory leave year April 1st to March 31st. In the case of the Complainant, given that the hours of work varied each week but that it appears that he always worked 120 hours in each four weeks, the Complainants entitlement to annual leave between the commencement of the statutory holiday year-01.04. 22 and 09.01.23 at 1.66 days per month amounted to 15 days. As 60 hours holiday pay received in July 2022 is the equivalent of 7.5 days by 8 hours(the number of hours per day worked by the Complainant when working), the Complainant was entitled to the balance of his annual leave entitlements on termination of employment. 7.5 days x 8 hours x €14 = €840 Based on the available evidence, the Respondent unlawfully withheld payment of holiday pay fromthe Complainant amounting to €840 Public Holiday Pay The Organisation of Working Time Act 1997 contains the method of payment for Public Holidays where they are worked and where they are not worked. The cognisable period this aspect of the complaint is the six months prior to the complaint under the Payment of Wages Act. The following is the calculation of the amount of payment for Public Holidays withheld from the Complainant during and at the end of his employment. It must be said that the Complainant was not clear on which of the public holidays below he had worked except for 01.01.23 when he did work. An amount of six hours for each Public Holiday is allowed for days not worked, equivalent to an average working week of thirty hours per week. October 30 2022 6 x €14 December 25, 2022, 6 x €14 December 26, 2022, 6 x €14 January 01 2023 8 x €14 €364 Based on the available evidence, the Respondent unlawfully withheld payment for public holidays worked and not worked by the Complainant in the six-month period prior to the termination of his employment amounting to €364
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00055326 Payment of Wages Act 1991 as amended. The complaint by Damian Basak against the Respondent Cians on Bridge Street is well founded. The Respondent is to pay Damian Basak the sum of €2990.13 nett compensation. |
Dated: 09-08-2023
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Wages/Annual Leave withheld on termination- Non-Payment of Public Holiday Pay |