ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00031624

Parties:

	Complainant	Respondent
Parties	Ewa Stawska	Aztec Entertainment Ltd

Complaint:

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-00042054-001	19/01/2021

Date of Adjudication Hearing: 14/12/2022

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.

In particular, the Complainant herein has referred the following complaint:

A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.

Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.

Section 5 (1) states that an employer shall not make a deduction from an employee unless:

The deduction is required by Statute or Instrument;

The Deduction is required by the Contract of employment;

The employee has given his prior consent in writing;

By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 19th of January 2021 was submitted within the time allowed.

As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).

Background:

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing .

I have informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is a serious and direct conflict in evidence between the parties to a complaint, that an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

To facilitate the Complainant in bringing this complaint an application was made (prior to the date of hearing) to provide an interpreter, which application was acceded to. The Interpreter was asked to make the appropriate Oath/Affirmation to truly interpret all matters and things required of him to the best of his skill and understanding.

Summary of Complainant’s Case:

The Complainant was not represented and made her own case. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case.

The Complainant alleges that she was not paid her Minimum Notice when her employment ended.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent did not attend. I am satisfied that the Respondent was on notice of this hearing by way of postal notification at the address provided.

Findings and Conclusions:

The Complainant gave evidence that she commenced her employment in December of 2013. The Complainant worked part time hours and was on a salary of circa €280.00 per week. The Complainant confirmed that she had been out on sick leave for a period of time but that she was not getting any payment from her employer.

By chance, the Complainant discovered that on or about the 31st of October 2020 the Respondent had taken her off payroll and notified the Revenue that the Complainant was no longer their Employee. The Complainant had received no Notice of the fact that her employment was being terminated and was not given the Statutory four weeks’ pay in lieu. The Complainant had been working with the Respondent for nearly seven years at that time. This amounted to an unlawful deduction form the Complainant’s wage

The Complainant further advised that she was not ever paid her Holiday pay which would have accrued up to that date.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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

CA-00042054-001 – Based on the Complainant’s uncontested evidence, I am satisfied that there has been a contravention of the Act and the claim is therefore well founded. I direct that the Employer pay to the Employee the sum of €1,500.00.

Dated: 19th January 2023

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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