Complainant

Respondent

Parties

Thomas David  Gavin

Get Food Ltd t/a  Krust Bakery

Representatives

  Self-represented

 None

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-00049173-001

12/03/2022

The complainant was employed as an Area Sales Manager by the respondent from 05 April 2021 to 04 March 2022.  The complainant worked 40 hours per week and was paid €4,000 gross per month.  The complainant resigned on 04 March 2022 having given notice of his resignation five weeks earlier.  He claims he was not paid for the final four weeks’ and for one week of annual leave.  In addition, the complainant claims he was not paid expenses due to him.  The claim is for a gross sum of €5,000 wages and €1,494 expenses.  The complainant submitted a complaint to the Workplace Relations Commission on 12 March 2022.

The complainant represented himself and gave evidence on oath.  The complainant provided a written submission and copies of correspondence with the respondent at the hearing.  Other documents displayed by phone at the hearing were submitted by e-mail the following day.

The complainant in his submission stated that the respondent did not deposit any part of his final salary payment to his bank account.  He was issued with a payslip for the month of February 2022 showing revenue deductions, but no payment was transferred to his bank account and Revenue was not paid PRSI for February.

In his submission and oral evidence, the complainant stated he had notified the respondent that his last week would be five days annual leave due to him.  From the time he gave notice of his resignation he worked on a handover and visited customers with a colleague.  In the final week, prior to his annual leave, his company car was reissued to another employee and this time was then stated to be “garden leave”.

The complainant stated that during his employment his salary was on many occasions paid late or paid in instalments.  The complainant stated that he was under constant stress waiting for payment of his salary and expenses.  Items that were promised to the complainant when he commenced employment were either not provided or provided late.  An example given was the provision of a company car.  The complainant had to travel from Dublin to Mayo to collect a car from another employee and when he collected it the car was not taxed.  The complainant paid the car tax and was reimbursed, but no tax disc was delivered to him.  He incurred expenses of parking in car parks due to not having a tax disc on the company car. 

The complainant sent his notice to the respondent five weeks before his date of resignation, 04 March 2022.  He intended to work four weeks and take the fifth week as annual leave which was due to him.  While he received a payslip for February and week one of March 2022, he did not receive payment.  He attempted to resolve the matter directly with the respondent but was unsuccessful.  The last attempt resulted in an offer from the respondent to pay a reduced amount over eleven months.  This offer was not acceptable to the complainant.

The complainant claims he is due €5,000 gross in wages deducted and €1,494.19 in expenses.

There was no appearance by or on behalf of the respondent.  Having checked the file and being satisfied that the respondent had been notified of the date, time and venue of the hearing I proceeded to hear the complainant’s complaint.

CA-00049173-001

Complaint submitted under section 6 of the Payment of Wages Act,1991.

The complaint submitted is that the respondent unlawfully deducted wages due to the complainant for his last five weeks’ work.  The complainant also claims he was not paid for expenses incurred in the course of his work.  The complainant was submitted on 12 March 2022. 

The Act provided the following definition of wages at section 1:

"wages", in relation to an employee, means 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.

As this definition specifically excludes from wages any payment in respect of expenses incurred by the employee in carrying out his employment, I do not have jurisdiction under this Act to consider the expenses claimed by the complainant. 

The above definition includes pay and holiday pay.  The complainant claims he is due payment for working for four weeks, after giving notice of his resignation, together with one weeks’ annual leave that he had accrued.

Sections 5 (1) (6) of the Act provides:

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) …

(3) …

(4) …

(5) …

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer.  The question to be decided is whether the wages claimed were properly payable.

The complainant in his submission and oral testimony stated that he gave notice five weeks’ notice of his intention to resign.  He stated that he intended to work for four weeks’ and take one weeks’ annual leave that was due to him.  He stated that he worked three weeks and then was instructed to give the company car to another employee and take garden leave.

I found the complainant to be a credible witness and based on his uncontested testimony I am satisfied that wages were properly payable to him for four weeks and for one week of accrued annual leave.

The complainant claimed a gross amount of €5,000.  I do not accept that is the correct gross amount due.  His salary was €48,000 per year gross which is less than €1,000 per week.  I calculate the weekly wage to be €923.08 gross.  I find the complainant is entitled to be paid €4,615.40 gross.

CA-00049173-001

Complaint submitted under section 6 of the Payment of Wages Act,1991.

I find the wages claimed by the complainant were properly payable to him. He is due payment for four weeks worked and for one week of accrued annual leave.   I decide the complaint concerning the unlawful deduction of wages due is well founded and I direct the respondent to pay to the complainant compensation of €4615.40 gross.

The Act specifically excludes from the definition of wages any payment in respect of expenses incurred by the employee in carrying out his employment.  Therefore, I do not have jurisdiction under this Act to consider the expenses claimed by the complainant. 

Payment of wages

Expenses