ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036840
Parties:
| Complainant | Respondent |
Parties | Oyinprebi Olobio | Khemraj Odoye t/a OK Consultancy |
Representatives | None | None and Did Not Attend Hearing |
Complaints:
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-00048059-001 | 08/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00048059-003 | 08/01/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 | CA-00048059-004 | 08/01/2022 |
Date of Adjudication Hearing: 23/08/2022
Workplace Relations Commission Adjudication Officer: Aideen Collard
Procedure:
These complaints were referred to the Workplace Relations Commission (hereinafter ‘WRC’) pursuant to Section 41 of the Workplace Relations Act 2015 on 8th January 2022. Following delegation to me by the Director, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence. I held a face-to-face hearing at
Lansdowne House on 23rd August 2022. The Complainant was in attendance and represented herself. There was no attendance by or on behalf of the Respondent and no application had been made to the WRC for an adjournment. I satisfied myself that a letter dated 22nd June 2022 had issued to the Respondent at his last known address, confirming the venue, date and time of the hearing and was not returned undelivered. The Complainant also confirmed that she had been in direct contact with the Respondent and he was aware of the hearing date. I confirmed that the Respondent had not contacted the WRC to indicate any difficulty attending the hearing. I allowed a period of 30 minutes to elapse to enable the Respondent to attend before commencing the hearing. As outlined below, by email dated 30th August 2022, the Respondent wrote to the WRC apologising for missing the hearing and confirming that the complaints herein were not being contested.
The hearing was held in public pursuant to Section 41(13) of the Workplace Relations Act 2015 as amended by the Workplace Relations (Miscellaneous Provisions) Act 2021. The Complainant’s evidence was taken under oath and she was made aware that the Parties’ names would be published within the decision. She confirmed that as her complaint for the non-payment of her outstanding wages CA-00048059-001 was duplicated in CA-00048059-003 for non-payment in respect of her notice period (both referred under Section 6 of the Payment of Wages Act 1991), the latter could be withdrawn. All of the evidence and documentation submitted has been considered.
Background:
The Complainant gave evidence under oath outlining the factual background to her complaints. She confirmed that the Respondent provided legal services and had employed her as a Legal Executive from 3rd September 2020 until 28th May 2021. Her contract of employment was directly with the Respondent although the business was subsequently set up as a limited company. She commenced on a starting annual salary of €24,000 which was to be increased by 10% from 1st January 2021.
Whilst the Complainant received her salary of €2000 per month until the end of March 2021, the 10% increase was stalled owing to business difficulties as confirmed in correspondence. Towards the end of April 2021, on the day her monthly salary was due, she and the other staff were informed that the business was experiencing financial difficulties and the staff would not be paid that month. She was also informed that the business was subject to an audit and that the Covid Restrictions Support Scheme (CRSS) had been stopped until it was complete. She was reassured that the audit would be finalised before the next pay day (end of May 2021) and she would be paid then. She continued working for the next month. Payment of her wages for April and May did not materialise and instead by letter dated 21st May 2021, she was laid off and her employment was terminated from 28th May 2021 “due to the downturn in business due to the Covid-19 Pandemic and other operational difficulties.” With more than 13 weeks’ service and as per her contract, she was entitled to one week’s pay in lieu of notice under the Minimum Notice and Terms of Employment Act 1973.
Thereafter, the Complainant corresponded with the Respondent and his partner and sought to come to an arrangement for the repayment of the monies owed. Whilst she has received a total of €450 in instalments to date, €4550 gross remains outstanding in respect of unpaid wages and pay in lieu of notice and €845 gross remains outstanding in respect of unpaid annual leave. Accordingly, she referred these complaints under Section 6 of the Payment of Wages Act 1991 and Section 27 of the Organisation of Working Time Act 1997 respectively, to the WRC on 8th January 2022. As the Respondent has repeatedly acknowledged this debt in correspondence with the Complainant as submitted including within the requisite six month period before referral, no time issue arises.
CA-00048059-001 – Non-payment of Wages, 10% increase and Pay in lieu of Notice Period under Section 6 of the Payment of Wages Act 1991
Summary of Complainant’s Case:
The Complainant confirmed that she had not been paid her monthly salary of €2000 for April and May 2021, the agreed 10% increase in her wages from January to May 2001 and pay in lieu of her entitlement to one week’s notice period. The Complainant submitted documentation vouching her claims. She initially sought €800 and post-hearing sought €1200 in respect of the unpaid 10% increase. Given that 10% of €24,000 pro rata for the five month period in question is €1000, I will accept that figure. To date, the Respondent has discharged a total of €450, comprising of payments of €50 in May 2021, €300 in August 2021, €50 in November 2021 and €50 in January 2022 leaving €4550 gross owing. Accordingly, the Complainant submits that this constitutes an unlawful deduction from her wages and seeks compensation under the Payment of Wages Act 1991.
Summary of Respondent’s Case:
The Respondent did not attend at the hearing and hence no evidence was adduced on his behalf. By email dated 30th August 2022, he wrote to the WRC to update his email address and also stated: “I am very apologetic to the WRC, Adjudicating Officer and the applicant in this matter for not appearing on the day. I completely missed the date of the hearing and I also understand it is not an excuse. I am not disputing the claim of the applicant in this matter, hence I accept any order the Tribunal may deem fit in this case. I look forward to hear(ing) from the office of the WRC.”
Findings and Conclusions:
It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions. Section 1 of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as including: “…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,…” I am therefore satisfied that the outstanding wages, 10% increase and pay in lieu of notice period claimed, fall within the definition of ‘wages’ for the purposes of referring a complaint to the WRC under Section 6 of the Act and further that the Complainant was contractually entitled to same. In relation to the shortfalls claimed, 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.” I found the Complainant to be an impressive witness and her evidence under oath as vouched by documentation to be wholly credible. Furthermore, the Respondent has expressly acknowledged in writing that the sums sought are due and owing. Given the written acknowledgements of debt whilst the Complainant had been awaiting payment, I further accept that all sums became due within the six month period prior to referral of this complaint as required under Section 41(6) of the Workplace Relations Act 2015. I am therefore satisfied on the balance of probabilities that this constitutes an unlawful deduction in contravention of Section 5 of the Payment of Wages Act 1991.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act if successful. I find this complaint to be well-founded for the reasons set out aforesaid. Once a complaint has been declared well-founded, Section 6(1) of the Payment of Wages Act 1991 provides that an Adjudication Officer may direct an employer to pay an employee compensation of such amount (if any) as considered reasonable in the circumstances not exceeding: “(a) the net amount of the wages (after the making of any lawful deduction therefrom) that- (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, where paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.” As the sum of €4550 due and owing in the instant case exceeds the net wages payable to the Complainant in the week preceding the deduction, I consider it reasonable in all the circumstances to direct the Respondent to pay the Complainant compensation of €5000 (comprising of €4550 due and owing subject to any lawful deductions and €450 in recognition of the time and inconvenience of referral to the WRC).
CA-00048059-004 – Non Payment of Pay in lieu of Annual Leave under Section 27 of the Organisation of Working Time Act 1997
Summary of Complainant’s Case:
The Complainant confirmed that as at the date of the termination of her employment, she was also owed pay in lieu of her outstanding annual leave entitlement for the period of her employment by the Respondent. She claimed that €845 was outstanding after deducting paid study leave taken. Accordingly, she seeks compensation for a breach of the Organisation of Working Time Act 1997.
Summary of Respondent’s Case:
The Respondent did not attend at the hearing and hence no evidence was adduced on his behalf. By email dated 30th August 2022, he wrote to the WRC to update his email address and also stated: “I am very apologetic to the WRC, Adjudicating Officer and the applicant in this matter for not appearing on the day. I completely missed the date of the hearing and I also understand it is not an excuse. I am not disputing the claim of the applicant in this matter, hence I accept any order the Tribunal may deem fit in this case. I look forward to hear(ing) from the office of the WRC.”
Findings and Conclusions:
It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions. Section 19 of the Organisation of Working Time Act 1997 sets out an employee’s entitlements and methods of calculation in relation to annual leave. Section 23 of the Act provides that outstanding annual leave becomes payable upon the cessation of employment. The Complainant claimed that she was due €845 in unpaid annual leave after deducting paid study leave. As already outlined, I found the Complainant’s evidence under oath as vouched by documentation to be wholly credible. Furthermore, the Respondent has expressly acknowledged in writing that the sum sought is due and owing. Given the Respondent’s written acknowledgements of debt whilst the Complainant had been awaiting payment, I further accept that this sum became due within the six month period prior to referral of this complaint as required under Section 41(6) of the Workplace Relations Act 2015. I am therefore satisfied on the balance of probabilities that this non-payment constitutes a contravention of Section 23 of the Organisation of Working Time Act 1997.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find this complaint to be well-founded for the reasons set out aforesaid. Once a complaint has been declared well-founded, Section 27(3) of the Organisation of Working Time Act 1997 provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.” I consider it just and equitable having regard to all of the circumstances to direct the Respondent to pay the Complainant compensation in the sum of €1000 for these breaches (€845 in monetary loss and €165 in compensation) in keeping with the Von Colson principles of effective remedies.
Overall Award:
Overall, the Respondent is ordered to pay a total of €6000 in compensation to the Complainant, comprising of €5000 in respect of outstanding wages, 10% increase and pay in lieu of notice period pursuant to Section 6 of the Payment of Wages Act 1991 and €1000 in respect of her outstanding annual leave entitlement pursuant to Section 27 of the Organisation of Working Time Act 1997. Any additional repayments made by the Respondent in the interim should be deducted from same.
Dated: 13th February 2023
Workplace Relations Commission Adjudication Officer: Aideen Collard
Key Words: Non-payment of wages and pay in lieu of notice period - Sections 5 & 6 of the Payment of Wages Act 1991 – outstanding pay in lieu of annual leave entitlement - Sections 19, 23 & 27 of the Organisation of Working Time Act 1997 – acknowledgment of debt within 6 month referral period