Complainant

Respondent

Parties

Barbara  Remic

Suirsafe Technologies Limited

Representatives

  Self

No appearance by, or on behalf of, the Respondent

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-00053999-001

05/12/2022

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

CA-00055096-001

15/02/2023

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

CA-00056418-001

01/05/2023

The Complainant commenced her employment with the Respondent on 1 September 2021 as Head of Products and Marketing. Initially she was paid €15,000 gross per month. This was reduced by agreement in May 2022 to €7,500 gross a month.

The Complainant referred her first claim to the WRC on 3 October 2022 (bearing reference number ADJ-00042575). She referred further claims on 5 December 2022, 15 February 2023, 1 May 2023 (bearing reference number ADJ-00043760) and on 6 July 2023 (bearing reference number ADJ-00046718). The complaints were heard together at the adjudication hearings held on 21 June 2023 and 30 August 2023.

The Complainant submits that she was initially paid €15,000 gross per month. Her salary was subsequently reduced by agreement to €7,500 gross per month from May 2022. The Complainant exhibited a copy of her employment contract and a copy of the “Contract Adjustment”.

The Complainant submits that the Respondent did not pay her her salary for the months of July, August, September, October and November 2022.

She also alleged that she was owed her outstanding annual leave entitlements for 2022 which were due to her in June 2022.

There was no appearance by, or on behalf of, the Respondent. I am satisfied that the Respondent was properly on notice of the date, time and location of the hearing.

The Law

Section 5 of the Payment of Wages Act provides as follows:-

5. 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.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 MacGrath J considered Section 5 of the Act as follows:

36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to her during the period encompassed by the claim are properly payable to her under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT 194 held as follows;-

“This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273,that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’

In the present case, the Complainant alleges that the Respondent has not paid her her salary for the months of July, August, September, October and November 2022. She also alleged that the Respondent owed her €1,074.43 in respect of outstanding annual leave entitlements.

The Complainant referred to her contract of employment dated 14 August 2021 and a document titled “Contract Adjustment” which confirmed that her monthly salary as of May 2022 was €7,500 gross.

The Complainant also exhibited a copy of an email exchange with the Respondent where the matter of non-payment of wages was discussed. I note that in one of the emails, Mr Sheldon Li, on behalf of the Respondent, admits that “It is not fair” to ask the Complainant to work for the Respondent “without receiving salaries”. In another email Mr Li states that the Respondent had no budget for the Complainant’s salary.

The matter of the non-payment of wages for the months July, August and September 2022 has been dealt with in ADJ-00042575 and is, therefore, disposed of.

Based on the uncontested evidence of the Complainant, I find that the Respondent has not paid the Complainant her salary for the months of October and November of 2022.

In relation to the Complainant’s assertion that she was not paid her annual leave entitlements which were due to her in June 2022, I find that, as of the date of the within claim, the Complainant continued to be an employee of the Respondent.

In Top Security Ltd and group Of Workers DWT017, the Labour Court held as follows:

‘Article 7 of Directive 93/104/EC on the Organisation of Working Time (the Directive) provides that the prescribed minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated. The Act was enacted to transpose that Directive and in accordance with settled law it must be interpreted and applied so as to achieve the result envisaged by the Directive (C – 14/83Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891). Article 7 reflects the fact that the Directive is a health and safety measure and the requirement to provide employees with a minimum amount of paid annual leave per year is a health and safety imperative. This was made clear by the ECJ in C – 173/99 R v Secretary of State for Trade and Industry ex parte Broadcasting, Entertaining and Cinematography and Theatre Union[2001] IRLR 559.’

In line with the above determination of the Court, if I were to take the view that the Respondent could discharge its liability in respect of outstanding annual leave by paying the economic value of the outstanding leave to the Complainant, this would amount to sanctioning payment in lieu of annual leave in circumstances where the employment relationship is continuing, an option that is not open to me. Separately, the matter of annual leave entitlements is dealt with in ADJ-00046718.

I declare this complaint to be partly well founded. I direct the Respondent to pay the Complainant €15,000 in respect of her salary for October and November 2022.

The Complainant submits that the Respondent has not paid her her salary from July 2022 onwards. The Complainant submits that she is owed her salary for the months July, August, September, October, November and December 2022, and January 2023.

The Complainant also alleges that she is owed her annual leave entitlements.

There was no appearance by, or on behalf of, the Respondent. I am satisfied that the Respondent was properly on notice of the date, time and location of the hearing.

I have outlined my findings and decision regarding the monies owed to the Complainant for the months of July, August, September, October and November 2022 elsewhere in this decision and in ADJ-00042575 .

On the basis of the uncontested evidence of the Complainant, I find that she was not paid her salary owed to her for the months of December 2022 and January 2023.

With regard to the annual leave claim, I find as above, that at the time of the referral of the within claim the Complainant remained in employment with the Respondent. Separately, the matter of annual leave entitlements is dealt with in ADJ-00046718.  

I declare this complaint to  be partly well founded. I direct the Respondent to pay the Complainant €15,000 in respect of the wages owed to her for the months of December 2022 and January 2023.

The Complainant submits that the Respondent has not paid her her salary from July 2022 onwards. The Complainant submits that she is owed her salary for nine months: July, August, September, October, November and December of 2022, and January, February and March of 2023.

The Complainant also alleges that she is owed her annual leave entitlements.

There was no appearance by, or on behalf of, the Respondent. I am satisfied that the Respondent was properly on notice of the date, time and location of the hearing.

I have outlined my findings and decision regarding the monies owed to the Complainant for the months of July, August, September, October, November, December 2022 and January of 2023 elsewhere in this decision and in ADJ-00042575.

On the basis of the uncontested evidence of the Complainant, I find that she was not paid her salary owed to her for the months of February and March of 2023.

With regard to the annual leave claim, the within claim was referred to the Director General of the WRC on 1 May 2023. Therefore, the annual leave year 1 April 2022 to 31 March 2023 has expired. However, at the time of the referral of the within claim, the Complainant remained in employment with the Respondent and the payment of annual leave entitlements on cessation of employment does not arise. Separately, the matter of annual leave entitlements is dealt with in ADJ-00046718.

I declare this complaint to  be partly well founded. I direct the Respondent to pay the Complainant €15,000 in respect of the wages owed to her for the months of February and March of 2023.

Non-payment of wages – annual leave