ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034778
Parties:
| Complainant | Respondent |
Parties | Terry Nichols | Dream Fitout Solutions Ltd |
Representatives |
| Alan Kirwan Director |
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-00045852-001 | 27/08/2021 |
Date of Adjudication Hearing: 13/12/2022
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, 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. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course 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;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
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 27th of August 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:
The Complainant herein issued a workplace relations complaint form on the 27th of August 2021 stating that his employer had for the duration of the employment) paid him less than the amount that was due and owing to him per the terms of the Contract of Employment. This matter came before me in April of 2022 at which time the parties indicated that an agreement had been reached and that there was no need to go into evidence. Time was allowed for the implementation of the settlement reached. The Complainant came back to the WRC stating that monies agreed to be paid had not been paid and the issue was re-instated before me for hearing. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to 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) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. The parties had agreed a way forward and as there was no serious and direct conflict in evidence it was unnecessary for me to administer an Oath or Affirmation pursuant to Workplace Relations (Miscellaneous Provisions) Act, 2021.
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Summary of Complainant’s Case:
The Complainant represented himself. The Complainant was looking for a final decision to be formally made. |
Summary of Respondent’s Case:
The Respondent company was represented by a Mr. Alan Kirwan who was not resisting the Complainant’s claim for unpaid and/or underpaid wages. |
Findings and Conclusions:
The parties agreed that the Complainant was owed €3,500.00 arising out of his short period of employment with the Respondent company from June to August of 2021. AK on behalf of the Respondent company advised that the Company was having financial difficulties but was hopeful of reaching an agreement directly with the Complainant on a schedule of payments to discharge the monies he accepted were due and owing. The parties were happy that this proposed schedule could be agreed separately by them once the Adjudication decision had issued.
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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-00045852-001 – The complaint herein is well founded, and I direct that the Employer herein pay to the Complainant/Employee the sum of €3,500.00.
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Dated: 24-01-2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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