Complainant

Respondent

Parties

Kevin  O'Leary

Xs Direct Insurance Brokers Ltd

Representatives

  self

 No Show

Act

Complaint Reference No.

Date of Receipt

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

CA-00050483-001

04/05/2022

The Complainant commenced employment with the Respondent on or about the 4th of May 2015 as a recovery agent. The Respondent employer is in receivership.

Arising from financial challenges the company implemented pay cuts on or about 23rd of April 2020. The cut amounted to a 15% reduction and initially it was to last for 6 months. The Complainant stated that the cut was implemented unilaterally. On or about the 15th of April 2020 the CEO had informed employees that their agreement was required before implementing any pay cut.

Due to ongoing financial challenges the CEO wrote to staff on or about 30th of July 2020, to inform staff that pay cuts would last for a further 6 months. The Complainant stated that he never agreed to this reduction.

On or about the 31st of July 2022 the Complainant was made redundant.

The Complainant amended his form at the hearing and stated that the complaint is for the period 6 months up to the date of lodging her complaint form with the WRC on the 4th of May 2022.

This 6-month period runs from the 5th of November 2021 to the 4th of May 2022, which covers payments at they fell due at the end of the Month for November, December and January and pay was restored in February 2022

By written confirmation the Complainant stated:

I am claiming unpaid wages for 3 months. Nov-21, Dec-21 and Jan-22. [The Adjudicator] asked for me to send in the payslips for these months. Please see attached.

These payments were with an unauthorised 15% pay cut. The unpaid wages amounted to €2269.46 for which I claimed.

The period of loss is November 2021, December 2021 and January 2022. His pay was restored in February 2022.

The wage reduction amounting to €2269.46 and equates to a 15% unauthorised pay cut for those 3 months that related to basic pay and to the bonus scheme.

The Respondent was properly notified of the date and time of the hearing by post on 22nd of November 2022 and failed to attend.

The Complainant has opened payslips and corroborating evidence detailing the cuts and when they would be implemented. In an email to staff dated 30th of July 2020 the CEO stated that the pay cuts previously implemented would continue for a further 6 months. The cuts on the evidence were not agreed to and continued until the Complainant’s pay was restored on or about February 2022.

Wages in the Payment of Wages Act 1991 is defined as:

“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, sickor maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

The key issue before me is whether the amount being claimed was due.

Section 5 of the Act states:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

Section 5 (6) states:

(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.

On the evidence the reduction was made unilaterally and the total amount of wages properly payable to the Complainant was less than contractually due.

I determine that for the relevant period the amount unlawfully deduced was €2269.46.

The Complaint is well founded.

The period of loss is November 2021, December 2021 and January 2022.

The wage reduction cumulatively for this period is €2269.46.

Section 6 of the Act states:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding

I direct that the Respondent pay to the employee €2269.46 less any statutory deductions.

Unauthorised pay cut.