Complainant

Respondent

Parties

Hali (Iam) McClain  Johnson

Owen Bruce Lee Tango trading as Grian 52

Representatives

  Appeared In Person

 No Appearance by or on behalf of the Respondent

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-00049595-001

09/04/2022

On 9 April 2022, the complainant, a business development officer, and lay litigant submitted a complaint of a shortfall of wages under the Payment of Wages Act, 1991. The Complainant signaled to me at the outset of the hearing that she wished to be addressed as female. I communicated my respect for this request.

The Respondent was placed on notice of the claim on 25 May 2022. He filed a defense on 13 June 2022.

On May 10, 2023, the parties were both invited to a hearing in the case scheduled for 19 June 2023

The complainant attended the hearing with her partner as support.

The respondent did not make an appearance or submit a defence in the claim. No reason followed to explain the nonappearance.

The Complainant outlined a claim for unpaid wages amounting to a cumulative €2, 708.23 on her complaint form.

The Complainant outlined that she had commenced work as a Business Development Officer on 10 January 2022.She experienced a delay in receiving her contract, which she secured on 14 January 2022. She concluded her employment on 8 March 2022

The Employment did not run smoothly, and the complainant submitted her four weeks’ notice on 8 February 2022.

A delay followed on payment of wages to the complainant. The Respondent sought an extension of time to scope out an opportunity to make the payment.  However, time ran out, without payment being received.

The Complainant presented at hearing and expressed a sharp criticism at the conduct of the respondent during her employment. She was hired to assist in a renewable energy framework only to find herself reluctantly aligned to the sale of modular homes in a lesser role. she was disappointed in the employment and gave 4 weeks’ notice to leave. At first, the respondent refused to accept this notice, but accepted it the next day.

The Complainant pressed on with her plans to leave but experienced a delay in receiving wages for March 2022.  Gross pay for March 2022 was listed as €896.14 for 4 weeks of insurable employment Payslips were not readily available.

Payment for January 2022 basic pay   €1587.27 (source pay slip)

                        February 2022 basic pay €2083.33 (source pay slip)

                         March 2022    gross pay € 896.14 (source revenue)

                            July 2022 nett pay     558.58

The Complainant had not availed of annual leave during her employment. She contended that she was owed for 20 annual leave days and unpaid hours. She confirmed that she had not received an explanation on how annual leave accrues.

In July 2023 a payment of €558.58 was made by the respondent directly to her bank account, without a corresponding explanation slip. The Complainant was confused as the pay slip to Revenue stated €800.00.

The Complainant expressed a genuine concern regarding the employment practices during her employment and expressed a reservation about the Respondent as an employer. she contended that the business had hired someone new without paying the existing employee.

She was unable to secure the monies owed and had sought the intervention of the WRC.

The Complainant submitted that she was owed.

€624.90 for hours owed.

€2083.33 for holiday pay

The Complainant exhibited a contract of employment dated January 4, 2022; January 2022 pay slip

There was no appearance by or on behalf of the Respondent at hearing. I did not receive an outline of a defence in the case for the purposes of the hearing.

The sole communication which originated from the respondent in this case took the form of an email to the WRC dated 13 June 2022.

Employment record was confirmed as 10 January 2022 followed by notice on February 8, 2022.

The Complainants resignation put the business in a difficult position financially.

The Respondent had sought additional time to pay wages.

He undertook to “I will get in touch with the employee to make arrangements with any money outstanding “

The Complainant at hearing that no further contact had been initiated outside of the unexplained July 2022 payment directly to her bank account.

I have been requested to reach a decision on this matter. In arriving at that decision, I have had regard for the complainant’s prehearing submissions. I have also listened very carefully as she recounted her work experience, which fell short of her expectations.

At times, the complainant was focussed on the poor working relationship and was keen to publicise the unhappy experience.

I brought the hearing back to the issue at the centre of the complaint, that of the payment of wages.

I would have liked to meet the respondent in this case. I found it unreasonable that he did not attend the hearing to address this claim under employment rights legislation. I am satisfied that he was properly on notice of the claim and his anon appearance is unreasonable.

The complainant said she is owed €624.90 in unpaid wages at the conclusion of her employment. she freely acknowledged receiving an unexplained nett payment in July 2022 558.58. I have no way of knowing if this payment was made to offset the €624.90.

I asked the Complainant if she understood it addressed the first non-payment set out on the complaint form. She said she could not be sure as it arrived at the bank unreferenced.

There were also issues of sundry expenses at the conclusion of the employment involving carriage of a work computer.

I will return to this.

The Law on payment of wages is set out in the Payment of Wages Act,1991 specifically, Section 5.

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.

(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.

The test set down in the High Court in the case of Balans v Tesco ltd [2020] IEHC 55 is of use here.

1 were the wages payable?

2 was the deduction lawful in accordance with Section 5 of the Act.?

I have heard a very clear account from the complainant on her unpaid wages on conclusion of employment, the expectation she received from the respondent that she would be paid but was not.

I am also mindful on this skeleton argument lodged by the respondent that he intended to get in touch with the complainant on the topic of unpaid wages.

In the absence of evidence of the respondent, I cannot link the parachute payment of €558.85 on July 4, 2022, with the payment of unpaid wages. I have not received any documentation which explains the payment or offers an apology for the delay.

In all the circumstances, I find that the sum of €624.90 was properly payable to the complainant on cessation of her employment.

This remuneration will be payable once per month while this agreement is in force (salary €25,000 p.a)

There are associated clauses on re-imbursement of expenses /travel and entertainment, which stray outside of my jurisdiction.

I find that the non-payment of this sum constitutes an illegal deduction in wages and amounts to a contravention of section 5(1) of the Act.

I find this aspect of the complaint well founded.

Annual Leave:

I must now consider the accompanying aspect of the claim for annual leave.

Once more, I will apply the test in Balans.

I have read and considered the contractual clause on annual leave. I have also asked the complainant to comment on the respondent declaration of 13 June 2022.

“The Employee will be entitled to four weeks of paid annual leave each year during the term of this Agreement, or as entitled by law, whichever is the greater.

The times and dates for any annual leave will be determined by mutual agreement between the employer and employee.

Upon termination of employment, the Employer will compensate the Employee for any accrued but unused annual leave. “

The complainant is clear that she did not avail of annual leave during her employment. She contends that she is entitled to the contractual bulk amount of four weeks annual leave as a result. Her claim for €2, 083.33 rests on that premise.

I did not have the benefit of a live response from the respondent outside of where he disputed this by email to the WRC in June 2022

“I have been also made aware that the employee is not entitled to a 4-week holiday pay for 2 months work”.

There is a clear ambiguity within the first and third paragraph of this contractual clause.

It is necessary for me to draw on the legislative provisions SS 19 and 23 of the Organisation of Working Time Act, 1997 as they define annual leave and cesser pay.

Entitlement to annual leave.

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

It is clear from this statutory definition that annual leave is linked to a numerical completion of hours of work.

(Section 19 (6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

Times and pay for annual leave.

20.— (1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

Compensation on cesser of employment.

23.(1) (a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection—

"Relevant period" means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

From a careful reading of the law, annual leave is earned against a numerical completion of hours. It is an enormously important term of employment aimed at rest and relaxation. Annual leave is provided by declaration of the employer, having regard for the employee’s personal life and needs.

I understand that Section 20(3) allows for more enhanced arrangements that are more favourable.

While an ambiguity exists between 21and 23 in the annual leave component of the contract, I find that 23 must defeat 21 by application of Section 23 of the Organisation of the Organisation of Working time Act, 1997. The complainant is entitled to receive cesser pay for “any accrued but unused annual leave “

I find that the claim is part well founded. I find that the Complainant is entitled to 6 annual leave days accrued and properly payable but not taken at the conclusion of her employment. This amounts to €576.91 as an illegal deduction in wages, for which there was no consent.

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.

Section 6 of the Payment of Wages Act, 1991, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the claim is part well founded.

I have established a contravention of Section 5(1) of the Act when the Complainant did not receive payment for annual leave on cessation of her employment.

In accordance with section 6 of the Act, I order the Respondent to pay the complainant €1201.81.

(€624.90 plus €576.91 in compensation for the contravention. This is subject to statutory deductions.

Non-Payment of Annual Leave