ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044410
Parties:
| Complainant | Respondent |
Parties | Rayan Miranda Botelho | Big Bear Construction Ltd |
Representatives | Self | David Byrne |
Complaint:
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-00055304-001 | 28/02/2023 |
Date of Adjudication Hearing: 20/06/2023
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.
The parties were also notified of these changes by the WRC in the letter confirming details of the hearing.
The respondent was represented by Mr David Byrne (Owner/Director) and the complainant, Mr Rayan Miranda Botelho, represented himself.
Background:
The complainant commenced employment on 10/10/2022 with the respondent. He was paid €20.00 per hour and worked a 40-hour week. He was issued with a contract of employment which outlined his terms and conditions. His employment ended on 01/02/2023 as the respondent was no longer able to keep him employed. The complainant submits that he was not paid for two days or for his holidays. The respondent does not dispute the claim. The complainant submitted his complaint to the WRC on 29/02/2023. |
Summary of Complainant’s Case:
The complainant gave evidence on affirmation. The complainant was employed by the respondent as a carpenter. He commenced on 10/10/2022. He had a contract of indefinite duration and was paid €20.00 per hour and worked a 40-hour week. The complainant submits that he was not paid for two days, 30/01/2023 and 31/01/2023 and, he did not receive his holiday pay. The complainant submits that he was advised by WhatsApp that the respondent was no longer able to keep him in employment and his employment ended on 01/02/2023. The complainant also submitted that the respondent did not return his tools to him when the employment ended. |
Summary of Respondent’s Case:
The respondent’s representative gave evidence on oath. He confirmed that he is the owner of the company and confirmed the company’s legal entity. The respondent submits that the complainant was employed from 10/10/2022 and was on a four-month probation. Due to difficulties the respondent was not able to retain two employees and so he advised them that they would be let go. This notice was given in compliance with the terms expressed in the contract of employment. The complainant was still on probation at that time. The respondent does not dispute that the complainant is due two days’ pay and also pay for three days annual leave. The respondent submitted that he was in the process of finalising matters, but these were delayed until the adjudication hearing concluded. He undertook to pay the complainant but would need a reasonable time to do so. |
Findings and Conclusions:
The complainant and respondent made written submissions in relation to this complaint. There was also oral evidence provided at the hearing. I have carefully considered and evaluated the submissions and evidence adduced in reaching my determination as set out below. In his claim the complainant submitted that the respondent made an unlawful deduction from his wages by not paying him for two days work and not paying his holiday pay.. Section 1 of the Payment of Wages Act, 1991 defines wages 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, sick or maternity pay, or any other emolument, referable to this employment, whether payable under his contract of employment or otherwise,” Deductions made by an employer from the wages of an employee are set out in Section 5 of the Act as follows: “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.” Having carefully considered the circumstances involved in the within case I am satisfied that the that the failure to pay the complainant for two days work and three days annual represents a deduction from his wages. Taking into account the application of Section 5 (1) (a) as outlined above, I am satisfied that the deduction was not required or authorised by any statute or instrument under statute. Taking into account the application of Section 5 (1) (b) as outlined above, I am satisfied that there is no term or clause in the complainant’s contract of employment which explicitly required or authorises a deduction from his wages or makes any reference to the likely circumstances in which such a deduction might occur. Taking into account the application of Section 5 (1) (c) I am satisfied that the complainant did not give his prior consent in writing to the deduction from his wages. In view of the above findings, I must now consider the issue of redress which is outlined in Section 6 (1) of the 1991 Act as follows: 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 – (a) The net amount of the wages (after the making of any lawful deduction therefrom) that – (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) the case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date or payment, or (b) If the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.” There is no dispute between the parties in relation to the actual sum which was not paid to the complainant and which represents a deduction from the complainant’s wages. In that context I find the sum of €800 to represent reasonable and appropriate compensation for the complainant. |
Decision:
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.
I find that this complaint is well founded and I order the respondent to pay the complainant the sum of €800.00. This amount is to be paid within six weeks of the date of this decision. |
Dated: 3rd July 2023
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Pay, holiday pay. |