Complainant

Respondent

Parties

Thomas  Gibney

Veracity Maintaining Partnerships Limited

Representatives

  N/A

 N/A

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-00058301-001

16/08/2023

On 29 September 2016, the Complainant commenced work as an “HVAC Operative” for the Respondent. Most recently, the Complainant earned approximately €24.34 gross per hour which came to €949.26 gross (€748 net) per week when working 39 hours per week. The Complainant submitted that in the past, the Respondent struggled financially, resulting in pay-related issues for its employees. The Complainant alleged that the Respondent failed to pay him for the week ending 28 July 2023 as well as for one week worked in arears. The Complainant also alleged that he is owed €191.98 in expenses. At the end of July/early August 2023, the Complainant ceased working for the Respondent. The Complainant submitted his Complaint Form to the WRC on 16 August 2023. The Complainant is seeking adjudication under section 6 of the Payment of Wages Act 1991, as amended.

At the outset of the Hearing, the Complainant submitted that the Respondent is “gone” since July 2023. He further submitted that all employees have now left the Respondent. According to the Companies Online Registration Environment, the Respondent continues to exist and so it was appropriate for me to hear this complaint.

The Complainant submitted that he worked as an “HVAC Operative” for the Respondent. He worked for the Respondent from September 2016 until the end of July/early August 2023.

The Complainant submitted that the Respondent provides HVAC systems as well as a maintenance and repair service. The Complainant’s role involved the maintenance of air conditioning systems, heating systems and chillers. He worked on sites all over Ireland and he reported to the Respondent’s Owner/Director, Mr. Paul McCormack. The Complainant submitted that the Respondent had approximately 15 employees, including electricians and engineers. The Complainant submitted that most employees left the Respondent over time, due to pay-related issues.

The Complainant submitted that he was last paid on 20 July 2023. This was a “double” wages payment which covered the period from 10 July 2023 to 21 July 2023 inclusive. The Complainant submitted that he worked from 24 July 2023 to 28 July 2023 inclusive and never got paid. On 31 July 2023, he received a WhatsApp message from the Respondent’s Secretary, enquiring if he was coming into work. The Complainant replied that he was not coming in as he had not been paid yet and could not put fuel in the van. He asked if the Respondent’s Owner/Director had said anything about payment. The Respondent’s Secretary replied, stating that no one had been paid yet. A copy of these messages was provided at the Hearing.

The Complainant submitted that he tried to call the Respondent’s Owner/Director but he received no response. The Complainant submitted that he also sent an email dated 16 August 2023 to him and received an automated “Out of Office” response. A copy of these emails was provided at the Hearing.

The Complainant further submitted that he had always been paid one week in arrears and was therefore also owed this one week’s payment. At the Hearing, the Complainant provided a copy of his contract of employment which states under clause 10 “You will be paid weekly, by SEPA Transfer, one week in arrears.”

Finally, the Complainant submitted that he was owed €191.98 in expenses. These expenses concerned payments for diesel, lunches etc.. At the Hearing, the Complainant provided a copy of the expense receipts.

The Respondent did not attend the Hearing.

In a letter from the WRC dated 2 November 2023, the Respondent was informed of the date, time and place of the Hearing. In the same letter, the Respondent was informed of the postponement procedure.

When the Respondent did not attend the Hearing on 27 November 2023, unsuccessful attempts were made by the WRC to contact the Respondent by way of telephone. A grace period was also allowed to enable the Respondent to attend. The Respondent did not do so.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and had sufficient opportunity to attend.

The Law:

The Payment of Wages Act 1991 as amended (the “PWA”) regulates deductions to an employee’s wages and prohibits unlawful deductions.

Under the PWA, “wages” are defined 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 in kind,

(vi) any payment by way of tips or gratuities.”

Section 5 of the PWA deals with the regulation of certain deductions made by employers.

Section 5(6)(b) of the PWA states that failure to pay amounts due on the occasion when due “…shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6 of the PWA outlines the directions which an adjudication officer can make, where a complaint is wholly or partly well founded.

Findings and Conclusions:

Pursuant to the PWA, the Complainant’s pay for the week of 24 July to 28 July 2023 inclusive is properly payable to him. Moreover, pursuant to the PWA, the Complainant’s pay for one week in arrears is properly payable to him. Therefore, this element of the complaint is well founded and the Respondent is to pay the Complainant for two weeks’ pay: €1,496 (€748*2) net.

Pursuant to the PWA, expenses are not regarded as wages. Therefore this element of the complaint is not well founded.

For the reasons outlined above, this complaint is partly well founded and I direct the Respondent to pay the Complainant €1,496 net.

Payment of Wages Act 1991.