Complainant

Respondent

Parties

Juan Carlos  Guerrero

Amk Hospitality Limited

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-00052987-001

27/09/2022

The Complainant commenced employment as a Chef with the Respondent on 4 June 2022 and terminated his employment on 12 September 2022 because he was not paid by the Respondent in respect of hours that he worked. He stated that there was a shortfall in his wages owed to him in the amount of €727 and that he was not paid his accrued holiday entitlements of €460

The Complainant commenced employment as a Chef with the Respondent on 4 June 2022 and terminated his employment on 12 September 2022 because he was not paid by the Respondent in respect of hours that he worked. Specifically, he stated that there was a shortfall in his wages owed to him in the amount of €727 and also that he was not paid his accrued holiday entitlements of €460.

The Respondent did not attend to give evidence on the day of the hearing.

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,

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 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.  While each case will turn on its own particular facts, it will be necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

In the instant case I am satisfied, based on the uncontradicted evidence of the Complainant, that the pay which he did not receive constituted a term of his contract and that the Respondent contravened the Act by not making this payment to him. Accordingly, I find that the complaint is well founded.

I find that the complaint is well founded for the reasons set out above and that the Respondent should make a payment of €1,187 to the Complainant. This is subject to the normal statutory deductions.