Complainant

Respondent

Parties

Robin  Kelly

The Roast House

Representatives

  Self

 Ronan Hurley, Owner

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-00050551-001

04/05/2022

The Complainant commenced his employment with the Respondent on 30 March 2022 as a Sous Chef. His employment terminated on 9 April 2022.

On 4 May 2022, the Complainant referred his claim to the Director General of the WRC alleging that the Respondent has not paid him or paid him less than the amount due to him.

The Complainant submits as follows.

In his written submission, the Complainant asserted that he was owed €217 by the Respondent. The Complainant asserted that he worked 27 hours during his first week of employment, 38 hours the week after. However, when he received his payment, it was only for 27 hours and not 38. The Complainant submits that he rang and emailed the Respondent numerous times but still have not been paid.

The Complainant submits that he received his payslip which showed that his rate of pay was €15. He submits that it was agreed that he would be paid €16 per hour.

Summary of direct evidence and cross-examination of the Complainant

At the adjudication hearing, the Complainant said that he was paid the correct amount for the first week. He alleged that he was paid for three days of work in the second week but had worked five days. He also stated that his rate of pay was incorrect. He asserted that he agreed that the hourly rate of pay would be €16, however, the Respondent paid him €15 per hour. He said that he wanted to be paid €17 per hour but the Respondent gave him €16.

The Complainant confirmed that he was told to inform the Respondent at the end of each week what hours he had worked. It was acknowledged by an emoji (thumbs up). The Complainant did not dispute that he worked 60.5 hours in total for the Respondent.

The Complainant exhibited copies of text messages between the parties, copies of bank statements showing the payments, and a copy of his payslip.

At the adjudication hearing, the Complainant requested a recess to allow him to review his records regarding the pay. After the break, the Complainant said that he was not sure how much he was paid by the Respondent. He confirmed that he worked 60.5 hours in total. He argued that he should have been paid €16 per hour. He confirmed that he received €50 cash in the first week which was not deducted from his wages.

The Respondent rejects the claim. It was submitted by the Respondent that the Complainant was paid the correct amount at the correct rate of pay.

Summary of direct evidence and cross-examination of Mr Hurley, the Owner

Mr Hurley said that the Complainant was initially met by him and the Head Chef. He commenced his employment on a trial basis on 30 March 2022. He was supposed to work from 8am to 3pm on that day. However, he came in at 7.30am and left at 3.30pm. He then worked from 7.30am to 5.15pm on 31 March and 2 April 2022.

Mr Hurley said that the Complainant never filled out the timesheet which he was supposed to do.

The Complainant sent the hours he had worked by text confirming the following:

6 April 2022 – 7.30am – 5 pm 7 April 2022 – 7.30am – 5 pm 8 April 2022 – 7.30am – 5pm 9 April 2022 – 7.30am – 5pm

Mr Hurley said that Saturday 9 April 2022 was the Complainant’s last day of work and he was told that the Respondent would not keep him.

Mr Hurley stated that the Complainant worked 60.5 hours in total and was paid for those.

Mr Hurley said that the Complainant asked to be paid €18 per hour. He explained to the Complainant that this would be a rate of a senior sous chef or a head chef. The Complainant them asked for €17, and then for €16 per hour. Mr Hurley said that he told the Complainant that he would pay him €16 per hour after 30 days in employment, if he performed well, in the meantime he would be paid €15.

Mr Hurley said that he also gave the Complainant €50 cash on top of his pay as he was going to see his daughter and had no money. This amount was not deducted from his salary.

Summary of direct evidence and cross-examination of the Head Chef, Mr Seymour

The Head Chef said that he attended the meeting with the Complainant and Mr Hurley. He said that it was agreed that the Complainant would be paid €15 per hour. After the meeting, he showed the Complainant around and explained to the Complainant about the rosters to be filled out.

The Law

Section 5 of the Payment of Wages Act provides as follows:-

5. Regulation of certain deductions made and payments received by employers

(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.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Finnegan J. considered Section 5 of the Act as follows:

“36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.””

The High Court made it clear that, when considering a complaint under the Act, the Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to him during the period encompassed by the claim are properly payable to him under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT 194 held as follows;-

“This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273,that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’

In the present case, the Complainant submitted that an agreement was reached with the Respondent that the Complainant would be paid €16 per hour. The Complainant asserted the non-payment of the same constituted a breach of the Payment of Wages Act. The Respondent denied the claim and contended that no such agreement was reached. The Respondent asserted that the Complainant’s pay during the relevant period was €15 per hour. The Owner and the Head Chef gave evidence at the hearing outlining the details of the discussions with the Complainant and the agreement that was reached regarding his pay. I note that the payslip furnished to the Complainant shows the rate of €15 per hour and the text of 13 April 2022 shows that the admin clerk processing the wages was informed that the Complainant’s rate was €15 per hour.

Having considered the submissions of the parties and all evidence adduced, I find that, apart from the Complainant’s own assertion, there was no evidence offered to me that would support the Complainant’s claim of a verbal agreement being in place that would entitle him to the rate of €16 per hour.

In relation to the Complainant’s claim that he is owed €217 in respect to his pay, I find that the Complainant confirmed that he had worked 60.5 hours during the period of employment with the Respondent. I find that the payslip exhibited at the hearing showed a payment of 60.5 hours at the rate of €15 per hour totalling €907.50 gross and €688.74 net.

I note that the Complainant asserted at the hearing that he was not sure how much he was paid by the Respondent. However, as per the Complainant’s account bank statements that were furnished by the Complainant, he was paid €342.76 and €346 by the Respondent into his bank account, totalling €688.76. Having reviewed his bank statements, the Complainant confirmed that he received these sums.

I, therefore, find that there were no deductions made from the Complainant’s wages other than that provided for by statute.

I declare this complaint to be not well founded.

Deductions – rate of pay