Complainant

Respondent

Parties

Xia  Chen

D Ryan T/A Betelnut Cafe Betelnut Cafe

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-00054598-001

25/11/2022

The Complainant worked as a shop assistant with the Respondent and is seeking an amount of €450 that she says is due to her.

The Complainant stated that in February 2022 the Respondent agreed to make several payments to her totalling €2,268 in respect of wages that were due to her.  Both parties agreed that the liability would be cleared once the full amounts owing were paid.

Although several payments were made to the Complainant in the period from 14 February 2022 to 9 November 2022, there was a shortfall in the amount of €450 still outstanding and although she contacted the Respondent, the payment due to her was not made.

The Respondent did not attend the hearing to give evidence.

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee 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 benefits ” 

Section 5(1) of the Payment of Wages Act 1991 provides: 

“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.” 

The remainder of the Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated that a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991. 

In making my decision in this case, I note the evidence of the Complainant that in February 2022 the Respondent agreed to make several payments to her totalling €2,268 in respect of wages that were due to her and that although several payments were made in the period from 14 February 2022 to 9 November 2022, the balance had not been cleared as the parties had agreed at the outset and there was a shortfall in the amount of €450 still outstanding in November 2022, which I find constitutes a deduction under the Act.

Given the credible evidence presented by the Complainant and in the absence of any contradictory evidence from the Respondent, I find that this complaint is well founded.

I find that the complaint is well founded for the reasons set out above and direct that the Respondent makes a net payment of €450 to the Complainant.