Complainant

Respondent

Parties

Richard  Wykes

Green Brick Property Services Ltd

Representatives

 Self

 No Attendance

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-00049603-001

05/04/2022

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

CA-00049603-002

05/04/2022

This is a case concerning a complaint of non-payment of wages by the Respondent to the Complainant for a period in February 2022 when he maintains he worked for the Respondent. The Respondent did not attend the hearing. On the 16th of November 2022 the Respondent emailed notice of his nonattendance for reasons which he stated included the manner in which he was notified, the address used, the refusal of a postponement, and an issue regarding information provided or not provided in emails. The issues raised by the Respondent were categorised as a service complaint and response was issued by the PRU Manager in the WRC on 21.11.2022 in response to those points. As the adjudication officer assigned to this complaint, I am satisfied that the Respondent was notified of the hearing, had the opportunity to attend, was provided with the opportunity to present any evidence he had to support his contention that this was an illegitimate claim. Had he attended he would have had the opportunity to confront his accuser by hearing his evidence and questioning that evidence and his statement that to attend at the hearing would only give credence to the complaint is emphatically rejected. I note the stated intention to appeal any judgment to the Labour Court and that is entirely a matter for either party. Given some of the written material presented to the hearing in terms of emails which had been issued by the same Respondent it is difficult to see why he would not contend that this was a “farcical” or illegitimate claim. However, that is entirely a matter for himself, and the hearing proceeded on the basis of the evidence provided by the Complainant which was closely questioned in terms of the details. The decision below takes into account that evidence and an assessment of its validity on the balance of probability taking into account that there was no rebuttal of that evidence before the hearing.

On the matter of the correct Respondent name, an issue raised by the Respondent in correspondence with the WRC, I am satisfied that the Respondent name is correct with the addition of Ltd to denote a limited company. The Decision contains this amended title. I find that the exclusion of the descriptor limited by the Complainant and the related WRC notices represented no material disadvantage to the Respondent such as to interfere in the slightest way with his right to fair procedures or to present his defence against the complaint.

Mr Wykes, the Complainant, gave sworn evidence. The Complainant had worked for the company Green Brick Property Services Limited and its predecessor company Agar Ireland at different periods between 2019 and 2022. At the time encompassed by his complaint in 2022, he had renewed his employment in 2021. His rate of pay was €13.50 per hour which gave a gross total of €550 net due for the week ending 4th February 2022 and €475.53 for the week ending 11th of February 2022, working 45 hours in the first week and 40 in the second week. Payment for the first week was to be transferred to his account for the week ending the 4th of February. This money was not transferred.

The Complainant stated that he continued in the employment and worked 40 hours the following week and then was informed on the 11th of February that he was surplus to requirements and there was no money to pay his wages. His employment therefore was terminated on 11th February 2022. No contract of employment was given to him. He acknowledged that the employer did request a meeting with him which he declined because of an event on the site which he said involved unlicensed enforcement officers being sent to the premises removing vehicles and tools on 13th February 2022 and he did not feel safe meeting the Respondent following that incident. He stated that there was a payslip for the 45 hours but no payslip for the second week of 40 hours. Prior to those weeks from his reengagement with the company in 2021 he had received payslips on a weekly basis. Responding to the point made by the Respondent to the WRC regarding the email addresses used, the Complainant stated that the Respondent had changed the email address he used on a number of occasions, using another name and .org or .eu while he was in the employment. At one-point emails were issued directly from hhsolutions.org. Asked what he was engaged at, he replied that he was an administrator with add on or ad hoc duties. In general, he worked nine to five but if there were site works, he would go out and about and he was flexible. The Respondent provided food service equipment and repairs to industrial catering equipment. During the week ending the 4th of February he engaged in extra duties working under a Mr A. Donnellan including work to 10.00pm.

The Complainant pointed to an email of 11th February 2022 at 19:36 from Peadar HH Solutions re current events/work next week. In that email it was stated:

“I have been informed this evening that you have not been paid this week and there may also be an issue with next week’s pay due to the financial mismanagement of Green Brick PS Limited one, to date. I am currently implementing a new management plan to resolve this issue and will be reviewing everyone’s outstanding pay over the course of next week. You should be aware by now as I notified Olivia to inform you that currently we have no fixed position for you. To be clear this is not in relation to your job performance but rather in direct relation to how the company is performing financially and our need to cut costs straight away. We may be able to return you to employment on our books in the future, once we get this issue resolved. I do have however one day’s work on Monday, potentially Tuesday and also next week cash in hand if you want it. I am cc’ing Brian Jordan into this email. He will be the point of contact on this and will be able to discuss further what is needed to be done. He has notified me he will send a follow up email tomorrow morning to you for initial contact in relation to work next week. I do understand what’s happening is not ideal Richard and I will assist you as best I can, with whatever you may need down the line.”

The Complainant submitted that this email clearly acknowledged that there was a week’s wages owing to him and a second week’s pay would also be difficult to pay. On the basis of that email, he took it that his regular employment was ended and he did not attend for work after that. He submitted that he was due payment on the 8th and again on the 14th of February, and that he had continued to work to the 11th of February. The Respondent return to Revenue had shown that he was in the employment until the 4th of February, but no reference was made to the second week. The Respondent was fully aware that he was owed wages and while there were other issues which were raised in relation to the company involving other employees, he was simply seeking his pay for hours worked. On the 21st of February he wrote to the Respondent regarding his two weeks outstanding pay inquiring when he could expect payment and on the same day from Peader at HH Solutions he was asked for timesheets and a list of his tasks and why he was using a different email address. The Complainant replied at 20:08 that evening that all he was looking for was his total of 85 hours of working time and asking was he being refused payment. He also sought a copy of the employment contract which he signed confirming the need for timesheets for wages and the need for a narrative for 2021 payments made in that year-there was no reply on these points.

As set out in the Background Section, the Respondent failed to attend at the hearing and provided no documents which could be put to the Complainant which might have countered his complaint. It was the Complainant who provided the various emails including those which confirmed he was owed at least one week’s pay, challenged his entitlement to the monies claimed and raised also other issues which had occurred within the company.

Aside altogether from the fact that the Respondent did not attend the hearing and failed to provide any evidence to support any contention that this was effectively a false claim for work not performed, the inference from the correspondence which he did send to the WRC to the effect that this was a false claim is completely contradicted by his own email of 11th February 2022 where he acknowledged that payment was owed and only that there could be a problem with payment due the following week. The contention that this person may not have worked for the company is contradicted by this email as is the Respondent’s offer of further cash in hand work the following week. It is clear therefore that the Respondent was well aware that the Complainant was in the employment and performing work and the nature of that work and that wages payable were unpaid and overdue. From the limited information available from various emails including those to the WRC, it would appear that other matters have clouded this situation where the Respondent experienced difficulties with other named former employees and there are references to company property, theft and criminal matters. Correspondence after 11 February 2022 became increasingly belligerent towards the Complainant perhaps as matters developed. These factors do not detract from the facts of the situation: that the Complainant was an employee in February 2022, the fact of wages being unpaid was acknowledged by the Respondent and the matter of non-payment was not rectified subsequently. There is no basis for an Adjudication Officer to dispute the hours of work  claimed  before the WRC which are consistent  and which those he notified in writing to the Respondent in February 2022. In all of the circumstances the decision to be made is that payments were unlawfully withheld from the Complainant and without his agreement.

For the benefit of the Respondent in particular, the provisions of the Payment of Wages Act 1991 at Section 5 governing deductions from payable wages are set out in full:

PAYMENT OF WAGES ACT 1991

Regulation of certain deductions made and payments received by employers.

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) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

or

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee’s having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amountby the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(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.

Being annoyed or upset over a workplace issue concerning an employee, even a very serious issue, does not form a lawful basis for an employer to withhold wages from an employee. I am satisfied on the available evidence that wages properly payable to the Complainant were withheld from him in February 2022 contrary to the terms of Section 5 of the Payment of Wages Act.

Section 6 of the Act allows that I make a Decision on nett compensation, in all the circumstances. There is no evidence before the hearing to decide other than that the Complainant is entitled to the full amount claimed by him as wages deducted or withheld by his former employer. 

CA-00049603-001/2 Payment of Wages Act 1991, as amended.

The complaint by Richard Wykes, Complainant against Green Brick Property Services Ltd, the Respondent, is well founded. The Respondent is to pay the Complainant €1025.53 nett in compensation.