ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040338
Parties:
| Complainant | Respondent |
Parties | Eris Byrne | Balrath Operations Unlimited trading as the Grafton Hotel |
Representatives | Raymond McGee | Jessica O'Mullane IBEC |
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-00051890-001 | 27/07/2022 |
Date of Adjudication Hearing: 04/05/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
The Complainant herein has brought a further complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented, the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 27th of July 2022 was submitted within the time allowed. As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an Oat or make an affirmation as may be appropriate. I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.
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Summary of Complainant’s Case:
The Complainant was fully represented by a consultant having a unique understanding of matters relating to employment disputes. At the outset, the Complainant was happy to swear an Oath/ make an Affirmation to tell the truth. The Complainant gave evidence on her own behalf. I was additionally provided with a comprehensive submission dated March of 2022. I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that unlawful deductions were made from her remuneration. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Relations Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the narrative but which had not been specifically particularised by this Complainant.
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Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent entity was represented by the HR Manager/General Manager/Director. The Respondent provided me with a written submission dated May of 2023. I have additionally heard from a witness from the Respondent – the General Manager Ms. C. The Respondent accepts some part of this claim but rejected the entitlement of the Complainant to a Notice payment. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully listened to the evidence adduced in the course of this hearing. The Complainant came to be employed as a bartender by the Respondent Hotel on or about the 30th October 2021. The Complainant was happy to secure the position as she was also a third level student. It is curious to note that in the Employment Contract provided by the Respondent the start date is given as the 20th of November though it is clear form the history of remuneration that the Complainant had started earlier than this date. The Complainant says that she was not given a copy of the Contract of Employment after she commenced her employment though remembered that the rate of pay was to be €12.00 per hour. The Complainant worked for 8 weeks before the Christmas of 2021 and the average number of hours worked appears to have been about 14 or 15 hours per week. The Complainant noticed that in her payslips she was getting paid at an incorrect rate of €11.00 per hour and not the €12.00 that had been agreed. The Complainant raised this shortfall with her line Manager Mr.B. Mr. B, she says, acknowledged the shortfall and said he would see to it. It is worth noting that Mr. B did not give evidence before me though he still works with the Respondent company. Ms. C the General Manager was not in a position to know what was said between the Complainant and the Line Manager. The Complainant says that as soon as she had raised this issue with her line Manager she started receiving significantly less work. In fact for the first twelve weeks of 2022 the Complainant was given an average of 6 hours per week (less than half her pre-Christmas hours) with some weeks of no work assignments at all. The Complainant firmly believes that she was being penalised for raising the issue of her correct rate of pay. The Complainant was removed from the workplace What’s App Group without explanation on the 19th of April 2022 after a period of not receiving any shifts whatsoever. I understand and accept that all rosters were published via the WhatsApp. On the 29th of May 2022 it seems that Revenue was notified that the Complainant was no longer an Employee of the Respondent company. The Complainant received her Holiday pay on the 29th of May 2022 and it appears to me that this document/final paycheck might also reasonably be considered to serve as the Complainant’s Notice of termination of employment. The Complainant did not hear from the Respondent again. Nobody from the Respondent ever talked to the Complainant about why she was being let go in the course of her Probationary period. The Complainant was simply phased out. At no time did the company reserve the right to not make a payment in lieu of Notice – as purportedly provided for under the terms of the probationary period. I am satisfied that the complainant was paid €1.00 less than what she should have been getting paid for every hour that she worked in the Respondent premises. The Complainant worked a total of 216 hours in the Respondent workplace. The Respondent concedes this point. As the Complainant was engaged as a bartender for in excess of 13 weeks she was entitled to be paid one week’s pay in lieu of Notice. I am calculating Notice based on the 15 hour week the Complainant had been working before she raised issues concerning the unlawful deductions being made. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00051890-001 – the Complainant is well founded. There has been an unlawful deduction and I award the Complainant €430.00.
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Dated: 12th June 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words: