Complainant

Respondent

Parties

Rafal  Kramek

Nolans Supermarket Limited

Representatives

Greg Caffrey

Hugh Hegarty Management Support Services (Ireland) Ltd

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-00055295-001

27/02/2023

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

CA-00055324-001

28/02/2023

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991, and has submitted the that the Respondent has not paid them or has paid them less than the amount due to them (CA-00055324-001)

Complaint CA-00055295-001 was withdrawn at the onset of the hearing.

The Complainant, who was represented by a member of Mandate, commenced employment with the Respondent on the 14th November 2016. The Complainant was employed as a sales assistant and his gross pay was €510.00 (€448.00 net) for 39 hours worked per month.

The Complainant submitted that he did not receive his full hourly rate of pay  when pay increases were announced by the Respondent. The Complainant submitted that he raised the matter at local level and eventually moved onto the correct rate of pay of €12.15p/h on September 8th 2022 and it is accepted that he received the correct increase to €13.10p/h in January 2023.

The Complainant submitted that while his hourly rate of pay was eventually corrected no backdated payments were made. The Complainant sent an email to the Respondent on the 21st March 2023 calculating his loss as €1,847.33 (€1,957.36 per written submissions). In that regard €221.15 for 2019, €589.89 for 2020, €604.15 for 2021 and €432.14 for 2022 up until September 2022. The 

This Complaint  was received by the Workplace Relations Commission on the 28th February 2023.

The Respondent submitted that the Complainant was on the correct rate of €13.10 p/h as of January 2023 and was moved to the €12.15 p/h on September 8th 2022. The Respondent submitted that regardless of the Complainants position in relation to backdated payments Section 6(4) of the Payment of Wages Act 1991 applied.

It is the Respondents position that the Complainant should not be entitled to succeed in relation to their complaint pursuant to the Payment of Wages Act.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of the hearing by both parties.

It is necessary to examine the facts giving rise to this complaint in light of the relevant legislation Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as “…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 his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:  Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i)any payment in respect of expenses incurred by the employee in carrying out his employment, (ii)any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii)any payment referable to the employee's redundancy, (iv)any payment to the employee otherwise than in his capacity as an employee, (v)any payment in kind or benefit” 

Section 5(1) of the Payment of Wages Act 1991 provides: “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.”  The remainder of the Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  

However, regardless of the Complainants submissions that they were not on the correct hourly rate in 2020, 2021 and part of 2022 I have to consider  Section 6 (4) of the Payment of Wages Act1991 which provides for the referral of complaints to the WRC and remedies.  Section 6 (4) of the Act provides:-

“(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

This Complaint was received by the WRC on the 28th February 2023. Therefore, I am bound by Section 6(4) of the Payment of Wages Act, 1991 to only consider the six-month period prior to the receipt of this Complaint which is the 28th August 2022. The Complainant accepts that as of the 25th August 2022 the Complainant received a 7.9% increase in his hourly rate  to €11.90 p/h which no other colleague had received.

In the circumstances of this case, I am satisfied that this Complaint is not well founded

I find that the Complaint (CA-00055324-001) made pursuant to Section 6 of the Payment of Wages Act, 1991 is not well founded.