Complainant

Respondent

Parties

Letícia Lerner Do Nascimento

Eden Home Care Ltd.

Complainant

Respondent

Anonymised Parties

Representatives

  Self-Represented

The Respondent did not attend and was not represented at the hearing.

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-00049743-001

19/04/2022

This matter came before the WRC dated 19/04/2022 as a complaint submitted under the Payment of Wages Act, 1991.  The Complainant was employed as a cleaner by the Respondent from 31/01/2022 until 11/03/2022.  The Respondent is a provider of home care services related to cleaning.  The Complainant was paid an hourly rate of €11.00 gross.  

On the WRC complaint form, in respect of the “Pay Complaint Type” the complaint states “my employer has not paid me or has paid me less than the amount due to me.” In respect of the complaint submitted the issue pursued at the adjudication hearing related to the amount of wages / pay the Complainant stated she had not received in the amount of €220.00.  There was no further detail on the complaint form apart from details of what occurred when the Complainant resigned. There was no written submission.  Accordingly, I deemed it necessary to make my own inquiries into the complaint in order to establish and understand the facts of the Complainant’s case.  In this endeavour I was assisted by the interpreter. 

From what I could ascertain on the day of the hearing, the Complainant commenced working for the Respondent on 31/01/2022.  She got the job by way of a WhatsApp message from a third party.  All communication in this employment relationship in its entirety seemed to happen by way of WhatsApp message including the number of hours one might be required to work and the location in which this work might be undertaken.  There appeared to be no set hours of work.  The work location was not fixed.  The Complainant did not appear to have received her core conditions of employment as required within five working days of commencement of employment which was of a duration of more than one month.  However, my jurisdiction is solely related to the specific complaint under the Payment of Wages Act, 1991 because that is the only issue properly before me today. 

The Complainant did not have a Personal Public Service Number (PPSN) when she commenced in her employment with the Respondent.  The Respondent applied for a PPSN for the Complainant stating in the letter of application that she was offering her a position as a part time cleaner in her company (Eden Home Care Ltd) and requesting that a PPS number would be issued so that she could employ her and put her on payroll.  The Respondent provided her company VAT number and her company registration number.   I had sight of this letter because the week before the hearing I asked the WRC to contact the Complainant and request that she forward a copy of her contract of employment.  The Complainant had not received a contract, but she forwarded the aforementioned letter for my attention in her belief it was a job offer letter from the Respondent to her.  My understanding and interpretation of the letter is that it was an application seeking a PPSN for the Complainant.  The letter is not dated.  However, I noticed a date of 09/02/2022 handwritten on the top right-hand corner.  It would be reasonable to infer from this that an application was made on or around that date. 

A PPSN was forthcoming in due course.  The Complainant confirmed she received a PPSN, but I was unable to establish a definitive receipt date.  Nonetheless, the Complainant resigned with immediate effect thereafter on 11/03/2022.  The Complainant alleged the Respondent was not happy and the parting was not an amicable one.  The Complainant claimed she was owed €220, and the Respondent requested another employee to call her and tell her she would be paid at the end of March.   The Complainant received a cheque in May from another staff member / former colleague in the amount of €114.40 dated 30/03/2022.  The Complainant stated her belief that the cheque was pre-dated, and she expressed her annoyance in this regard. 

There was no appearance by or on behalf of the Respondent at the hearing.  I note the Respondent has not engaged with the WRC or submitted any written submissions or documentation.  In the circumstances, no evidence has been proffered on behalf of the Respondent. 

The Relevant Law:

Section 5(1) of the Payment of Wages Act, 1991 provides that an employer shall not make a deduction from an employee unless:

The deduction is required or authorised by Statute or Instrument; [emphasis added]

The deduction is required authorised by the contract of employment;

The employee has given his prior consent in writing. 

Accordingly, it is clear from section 5(1) above that, apart from tax, PRSI and USC, unless there is a provision in the employee’s contract of employment to deduct wages, an employer may not make a deduction from an employee’s wages, unless consent has been given in advance. 

Having carefully considered all the evidence adduced during the hearing, I find the Complainant was taxed on an emergency basis for the entire duration of her employment with the Respondent.  I make that finding on the basis that she did not receive her PPSN until just before she resigned.  I make that finding also on the basis that I had sight a few of her payslips from her subsequent employment which she kindly showed me on her phone during my inquiry trying to establish the facts in relation to her complaint.  She remained on emergency tax for a number of weeks in that subsequent employment also until such time as tax credits were applied and a refund occurred in May.  I explained to the Complainant during the hearing the difference between net pay and gross pay and the manner in which emergency tax is applied and also the manner in which it is refunded, and the steps required to be taken by her to ensure she receives this refund. 

I am satisfied from the evidence adduced at the hearing that the Complainant was paid for all the hours she worked for the Respondent prior to her resignation.  The Complainant did not indicate otherwise when I questioned her on this.  She did receive two payslips from an external payroll provider, one dated 28/02/2022 and another dated 31/03/2022.  However, as these were password protected, she was unable to view them.  I am satisfied she herself appeared to have kept a record of hours worked and payment received despite not being able to view the payslips.  The core issue of her complaint was the €220.00 the Complainant stated she was owed when she resigned.

I am satisfied the cheque she received from the Respondent in the amount of €114.40 was the net payment for the €220.00 gross the Claimant was owed for hours she worked when she resigned, and which formed the basis of her claim to the WRC.   Emergency tax was applied at 40% of gross and emergency USC was applied at 8% of gross.  Based on my calculations the net amount the Complainant should have received is €114.40 (€220.00 - €88.00 – €17.60 = €114.40).

This is the amount she received.  Much was made by the Complainant about the fact the cheque was pre-dated.  The cheque may or indeed may not have been pre-dated.  There is no way of knowing how long it took for the Complainant’s former colleague to deliver the cheque to her.  Nothing really turns on this.  The cheque was cashed by the Complainant when she received it from her former colleague.  The Complainant was paid for all the hours she had worked.   I find, therefore, there is no breach of the Payment of Wages Act, 1991. 

For the reasons stated above I must conclude that the within complaint is not well-founded and I decide accordingly.  

Emergency Tax; No Breach;