Complainant

Respondent

Parties

Aniko  Knopp

Emex Software Limited

Representatives

  N/A

N/A

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-00053980-002

02/12/2022

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

CA-00053980-003

02/12/2022

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

CA-00053980-004

02/12/2022

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

CA-00053980-005

02/12/2022

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

CA-00053980-006

02/12/2022

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

CA-00053980-007

02/12/2022

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

CA-00053980-008

02/12/2022

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

CA-00053980-009

02/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00053980-010

02/12/2022

On 13 June 2022, the Complainant commenced work as a Senior Sustainability and Environmental Social and Governance (“Senior Sustainability andESG”) Specialist for the Respondent.  The Complainant earned €6,250 gross per month, working 37.5 hours per week. Shortly after joining, the Complainant became aware of company-wide, pay-related issues which began to affect her from September 2022. On 25 November 2022, the Complainant handed in her notice. The Complainant’s notice period expired on 25 December 2022 and her last day of work was on Friday, 23 December 2022. The Complainant has brought a number of pay-related complaints, seeking adjudication under section 6 of the Payment of Wages Act 1991 as amended and under section 27 of the Organisation of Working Time Act 1997 as amended.

The Complainant provided written and oral submissions.

The Complainant outlined that she joined the Respondent in June 2022, as a Senior Sustainability and ESG Specialist. Very soon after joining, she learned of pay-related issues which affected her personally from September 2022. She handed in her notice on 25 November 2022, working her notice period until 25 December 2022. Her last day was Friday 23 December 2022. The Complainant filed her Complaint Form with the Workplace Relations Commission (the “WRC”) on 2 December 2022. The Complainant outlined that the Respondent’s failure to pay her has caused her psychological and financial strain and she would like this matter to come to an end.

The Complainant outlined that she received her August 2022 pay in October 2022. She further outlined that she received only half of her September 2022 pay in November 2022. She has received nothing since then.

By way of documentary evidence, the Complainant provided her Offer Letter dated 28 March 2022; her Contract of Employment dated 20 April 2022; email exchanges with the recruitment consultant dated March and April 2022; payslips for June, July and August 2022; screenshots of her work time management tools and her work expense claims; Teams screenshots; and her bank statement.

CA-00053980-002: Complaint under the Payment of Wages Act 1991 – September 2022 Pay:

The Complainant outlined that she only received half her pay for September 2022. She therefore sought her remaining gross pay of €3,125.

CA-00053980-003: Complaint under the Payment of Wages Act 1991 – October 2022 Pay:

The Complainant outlined that she received no pay for October 2022. She therefore sought her gross pay of €6,250.

CA-00053980-004: Complaint under the Payment of Wages Act 1991 – November 2022 Pay:

The Complainant outlined that she received no pay for November 2022. She therefore sought her gross pay of €6,250.

CA-00053980-005: Complaint under the Payment of Wages Act 1991 – December 2022 Pay:

The Complainant outlined that she received no pay for working her notice period until 25 December 2022. Her last day at work was Friday 23 December 2022. She sought her gross pay for this period.

CA-00053980-006: Complaint under the Payment of Wages Act 1991 – Health Insurance:

The Complainant outlined that she did not receive €500 per month as a health insurance contribution to which she was entitled. The Complainant referred to her Offer Letter dated 28 March 2022, which listed under the heading “Benefits:”, “Health Insurance Contribution –€500 per month”. She also referred to an email from the recruitment consultant dated 30 March 2022. In this email, the recruitment consultant responded to the Complainant’s queries prior to her accepting the job offer. He stated that he had heard back from the Respondent’s HR Director who indicated: “[a]s we currently do not have Private Medical Insurance, we offer a cash amount instead”. The Complainant is seeking €3,250, for the period 13 June 2022 until 25 December 2022.  

CA-00053980-007: Complaint under the Payment of Wages Act 1991 – Pension Contribution:

The Complainant outlined that she did not receive her pension contribution of 5%. The Complainant referred to her Offer Letter dated 28 March 2022, which listed under the heading “Benefits:”, “Pension contribution – 5%”.  She also referred to an email from the recruitment consultant dated 30 March 2022. In this email, the recruitment consultant responded to the Complainant’s queries prior to her accepting the job offer. He stated that he had heard back from the Respondent’s HR Director who indicated “[s]hould [the Complainant] wish to join our pension scheme the company would match her own contribution up to 5%”. The Complainant outlined that she had frequently enquired about the pension scheme, however it was never set up. The Complainant is seeking €2,031.25, for the period 13 June 2022 until 25 December 2022.

CA-00053980-008: Complaint under the Payment of Wages Act 1991 – Expenses:

The Complainant outlined that she is seeking her expenses as promised verbally by the Respondent. She was told that she would be reimbursed for these healthcare and client meeting expenses. These expenses, set out in a screenshot of her work expenses, came to €271.

CA-00053980-009: Complaint under the Payment of Wages Act 1991 – Bonus Holiday:

The Complainant outlined that she is seeking payment for one bonus holiday for her birthday. The Complainant referred to her Offer Letter dated 28 March 2022, which listed under the heading “Benefits”: “Holidays – 20 days per annum, with discretionary time off for good Friday, 24th and 31st December as well as your birthday”. This bonus holiday entitlement is referred to in the Complainant’s work time management tool screenshot as “Birthday Time”.

CA-00053980-010: Complaint under the Organisation of Working Time Act 1997 – Accrued Annual Leave:

The Complainant outlined that she is seeking payment for five days of accrued annual leave. The Complainant referred to her Offer Letter dated 28 March 2022, which listed under the heading “Benefits”: “Holidays – 20 days per annum”. This annual leave entitlement is referred to as “Holiday Ireland” in the Complainant’s work time management tool screenshot. The same screenshot outlines that the Complainant has already taken 6 days of annual leave and has accrued a further five days of annual leave.

The Respondent provided oral submissions by way of response.

The Respondent outlined that it is a software business and that since mid-2022 it has been seeking funding. The Respondent outlined that business had been affected by the downturn in the economy, recession and the war in Ukraine, resulting in an inability to raise capital and pay employees.

The Respondent outlined that he was not the Complainant’s direct manager. He outlined that he understood that the Complainant had resigned in frustration with her pay situation. He further outlined that the Complainant had not received payslips as no payments had been made to her, as outlined in her Complaint Form.

The Respondent conceded the following complaints: CA-00053980-002; CA-00053980-003; CA-00053980-004; CA-00053980-005; CA-00053980-008; CA-00053980-009; and CA-00053980-010. He conceded that he owed the Complainant approximately €21,875 (€6,250*3.5) gross for: outstanding pay; pay for one bonus birthday holiday; and pay for accrued annual leave. He also conceded that he owed the Complainant €271 for expenses.

CA-00053980-002: Complaint under the Payment of Wages Act 1991 – September 2022 Pay:

The Respondent conceded this complaint and accepted that the Complainant was owed gross pay of €3,125.

CA-00053980-003: Complaint under the Payment of Wages Act 1991 – October 2022 Pay:

The Respondent conceded this complaint and accepted that the Complainant was owed gross pay of €6,250.

CA-00053980-004: Complaint under the Payment of Wages Act 1991 – November 2022 Pay:

The Respondent conceded this complaint and accepted that the Complainant was owed gross pay of €6,250.

CA-00053980-005: Complaint under the Payment of Wages Act 1991 – December 2022 Pay:

The Respondent conceded this complaint and accepted that the Complainant was owed her gross pay for this period.

CA-00053980-006: Complaint under the Payment of Wages Act 1991 – Health Insurance:

The Respondent referred to the Complainant’s Contract of Employment dated 20 April 2022. The Respondent outlined that it does not provide for a health insurance scheme. He further outlined that if there had been a company health insurance scheme, the Complainant would not have been given €500 in cash per month as that must go through payroll.

The Respondent was referred to the Complainant’s Offer Letter dated 28 March 2022, which listed under the heading “Benefits:”, “Health Insurance Contribution –€500 per month”. He was also referred to an email from the recruitment consultant dated 30 March 2022. This email outlined that the Respondent’s HR Director had indicated “[a]s we currently do not have Private Medical Insurance, we offer a cash amount instead”. The Respondent said that the HR Director left the Respondent in October 2022. The Respondent did not accept that the health insurance contribution was payable to the Complainant as it was not addressed in her Contract of Employment dated 20 April 2022.

CA-00053980-007: Complaint under the Payment of Wages Act 1991 – Pension Contribution:

The Respondent again referred to the Complainant’s Contract of Employment dated 20 April 2022. The Respondent outlined that it does not provide for a pension contribution scheme. The Respondent further stated that as there was no pension contribution scheme, there was no contribution by the Complainant and so no matched contribution by the Respondent was payable.

The Respondent was referred to the Complainant’s Offer Letter dated 28 March 2022, which listed under the heading “Benefit”, “Pension contribution – 5%”.  He was also referred to an email from the recruitment consultant dated 30 March 2022. This email outlined that the Respondent’s HR Director had indicated “[s]hould [the Complainant] wish to join our pension scheme the company would match her own contribution up to 5%”. The Respondent did not accept that the pension contribution was payable to the Complainant.

CA-00053980-008: Complaint under the Payment of Wages Act 1991 – Expenses:

The Respondent conceded this complaint and accepted that the Complainant was owed €271.

CA-00053980-009: Complaint under the Payment of Wages Act 1991 – Bonus Holiday:

The Respondent conceded this complaint and accepted that the Complainant was owed payment for one bonus holiday for her birthday.

CA-00053980-010: Complaint under the Organisation of Working Time Act 1997 – Accrued Annual Leave:

The Respondent conceded this complaint and accepted that the Complainant was owed payment for five days of accrued annual leave.

Preliminary Issue – Cognisible Period:

The Law:

Section 41(6) of the Workplace Relations Act 2015 (the “WRA”) provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Findings and Conclusion:

The Complainant commenced work on 13 June 2022. Her last day of work was 23 December 2022. She filed her Complaint Form on 2 December 2022. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, I can consider a complaint from 3 June 2022. In this instance, I can consider the complaint from 13 June 2022, which was the Complainant’s start date, until 2 December 2022, when the Complaint Form was submitted.

Substantive Issue – Payment of Wages:

The Law:

The Payment of Wages Act 1991 as amended (the “PWA”) regulates deductions to an employee’s wages and prohibits unlawful deductions.

Under the PWA, “wages” are defined as:

"any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

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

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.”

Section 5 of the PWA deals with the regulation of certain deductions made by employers.

Section 5(6)(b) of the PWA states that failure to pay amounts due on the occasion when due “…shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6 of the PWA outlines the directions which an adjudication officer can make, where a complaint is wholly or partly well founded.

Substantive Issue – Organisation of Working Time:

The Law:

Pursuant to section 19(1) of the Organisation of Working Time Act 1997, as amended, (the “OWTA”), an employee is entitled to the following paid annual leave:

“(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.”

In Waterford City Council v. Mr. Stephen O’Donoghue, DWT0963, the Labour Court held:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Section 27 of the OWTA empowers an adjudication officer to do one or more of the following:

“(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

Findings and Conclusions:

CA-00053980-002: Complaint under the Payment of Wages Act 1991 – September 2022 Pay:

Pursuant to the PWA, the Complainant’s remaining pay for September 2022 are wages properly payable to her. The Respondent also conceded this. The Respondent is to pay the Complainant €3,125 (€6,260/2) net.

CA-00053980-003: Complaint under the Payment of Wages Act 1991 – October 2022 Pay:

Pursuant to the PWA, the Complainant’s pay for October 2022 are wages properly payable to her. The Respondent also conceded this. The Respondent is to pay the Complainant €6,250 net.

CA-00053980-004: Complaint under the Payment of Wages Act 1991 – November 2022 Pay:

Pursuant to the PWA, the Complainant’s pay for November 2022 are wages properly payable to her. The Respondent also conceded this. The Respondent is to pay the Complainant €6,250 net.

CA-00053980-005: Complaint under the Payment of Wages Act 1991 – December 2022 Pay:

Pursuant to the PWA, the Complainant’s pay for December 2022 are wages properly payable to her. The Respondent also conceded this. However, the cognisible period for these complaints is from 13 June 2022 (the Complainant’s start date, which is after the 3 June 2022) until 2 December 2022, the date upon which the Complainant filed her Complaint Form. As such, I can only consider this December pay complaint for 1 and 2 December 2022. The Respondent is to pay the Complainant two days’ pay = €578 (2*(((€6,250*12)/52)/5)) net.

CA-00053980-006: Complaint under the Payment of Wages Act 1991 – Health Insurance:

The Complainant’s entitlement to health insurance contributions of €500 per month is clearly set out in the Complainant’s Offer Letter dated 28 March 2022 and in the email to her from the recruitment consultant dated 30 March 2022. While the payment of health insurance contributions was an unwritten agreement between the Parties, it nonetheless was a contractual commitment which formed part of her wages.

The definition of “wages” under the PWA includes “any other emolument, referable to his employment, whether payable under his contract of employment or otherwise.”

In Hollingsworth v. Wilkie, PW 72/2011, the Employment Appeals Tribunal held that where an employee's contract of employment provides for a VHI healthcare allowance, such payment is an “emolument” and not a “benefit in kind”.

Consequently, the definition of “wages” under the PWA encompasses the health insurance contributions agreed by the Respondent, for the period 13 June to 2 December 2022 – a period of approximately five and a half months. Therefore, the Respondent is to pay the Complainant €2,750 (€500*5.5) net.

CA-00053980-007: Complaint under the Payment of Wages Act 1991 – Pension Contribution:

The definition of “wages” under the PWA explicitly excludes “any payment […] or allowance or gratuity in connection with […] retirement”. Therefore, the complaint relating to pension contributions is not well founded.

CA-00053980-008: Complaint under the Payment of Wages Act 1991 – Expenses:

The definition of “wages” under the PWA explicitly excludes “any payment in respect of expenses”. Therefore, the complaint relating to expenses is not well founded.

CA-00053980-009: Complaint under the Payment of Wages Act 1991 – Bonus Holiday:

The Complainant’s entitlement to one bonus holiday for her birthday was clearly set out the Complainant’s Offer Letter dated 28 March 2022 and in her work time management tool screenshot. The definition of “wages” under the PWA includes “any fee, bonus or commission, or any holiday … or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise.” Therefore, the Respondent is to pay the Complainant one day’s pay = €289 (((€6,250*12)/52)/5) net.

CA-00053980-010: Complaint under the Organisation of Working Time Act 1997 – Accrued Annual Leave:

The Complainant submitted her Complaint Form to the WRC on 2 December 2022. Section 2 of the OWTA provides that the “leave year” is any year beginning on 1 April. In this matter, the relevant leave year runs from 1 April 2022 until 31 March 2023. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, I can consider a complaint from 3 June 2022. In this instance, I can consider the complaint from 13 June 2022, which was the Complainant’s start date, until 2 December 2022, when the Complaint Form was submitted.

From 13 June 2022 until 2 December 2022, a period of approximately five and a half months, the Complaint accrued approximately nine days annual leave (1.67 *5.5). According to her work time management tool screenshot, the Complainant took six annual leave days. She therefore had three annual days of unpaid leave remaining. I find therefore, that she is entitled to three days’ remuneration by way of compensation, which is just and equitable in the circumstances. This amounts to €865 (3*(((€6,250*12)/52)/5)).

CA-00053980-002: Complaint under the Payment of Wages Act 1991:

For the reasons outlined above, this complaint is well founded and I direct the Respondent to pay the Complainant €3,125 net.

CA-00053980-003: Complaint under the Payment of Wages Act 1991:

For the reasons outlined above, this complaint is well founded and I direct the Respondent to pay the Complainant €6,250 net.

CA-00053980-004: Complaint under the Payment of Wages Act 1991:

For the reasons outlined above, this complaint is well founded and I direct the Respondent to pay the Complainant €6,250 net.

CA-00053980-005: Complaint under the Payment of Wages Act 1991:

For the reasons outlined above, this complaint is partly well founded and I direct the Respondent to pay the Complainant €578 net.

CA-00053980-006: Complaint under the Payment of Wages Act 1991:

For the reasons outlined above, this complaint is partly well founded and I direct the Respondent to pay the Complainant €2,750 net.

CA-00053980-007: Complaint under the Payment of Wages Act 1991:

For the reasons outlined above, this complaint is not well founded.

CA-00053980-008: Complaint under the Payment of Wages Act 1991:

For the reasons outlined above, this complaint is not well founded.

CA-00053980-009: Complaint under the Payment of Wages Act 1991:

For the reasons outlined above, this complaint is well founded and I direct the Respondent to pay the Complainant €289 net.

CA-00053980-010: Complaint under the Organisation of Working Time Act 1997:

For the reasons outlined above, this complaint is partly well founded and I direct the Respondent to pay the Complainant €865.

Payment of Wages Act 1991, Organisation of Working Time Act 1997, Cognisible Period.