Complainant

Respondent

Parties

Quentin  Morel

Ampyx Power Ireland Ltd

Representatives

  Self

 Did not attend

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-00053150-001

07/10/2022

The complainant commenced working with the respondent’s parent company, Ampyx Power BV, 01/03/2022 as a consultant and then was employed on 01/03/2022 by the respondent. Ampyx Power Ireland Limited.  The parent company went bankrupt in April 2022.  As a result of this the complainant was not paid for April and May 2022 although pay slips were issued.  The complainant left to take up another role and the respondent has still not paid him what he was owed.  He was paid €6,615.00 per month.  He submitted his complaint to the WRC on 07/10/2022

The complainant was employed as a mechanical Design Engineer with the respondent from 01/03/2022 until 08/05/2022.  Prior to this he worked on a consultancy basis until they sorted out their HR process.  The complainant was paid €6,615 gross per month.  The complainant was paid for March 2022 but did not receive any pay for the months of April and May 2022.  He left to take up paid employment on 08/05/2022.  He is also due holiday pay.  The complainant is due €6,615.00 for April 2022 and €1,653.75 for May 2022.  He is also due two weeks holiday pay which amount to €3,307.50.  Total owed is €11,576.25.

The complainant gave evidence that he was one of two employees employed by the respondent.  The respondent was required to comply with the SEAI grant related provisions.  The complainant also gave evidence that the respondent, Ampyx Ireland is still listed as “normal” on the Company Registration Website.

The respondent or a representative on its behalf did not attend the hearing.  I am satisfied that the respondent was properly on notice by way of letter dated 03/04/2023 of the date, time and venue of the hearing.

The complainant provided a written submission in relation to this complaint.  This was copied to the respondent. There was also oral evidence provided at the hearing by complainant. I have carefully considered and evaluated the submission 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 as he was entitled to be paid for the period he worked for the respondent.  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 failure to pay the complainant his wages 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 dated 07/09/2015 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.”

Based on the uncontested evidence provided by the complainant I find the sum of €11,576.25 is properly payable to the complainant and that this sum represents a reasonable and appropriate compensation for the complainant.

I find that this complaint is well founded, and I order the respondent to pay the complainant the sum of €11,576.25 gross to the complainant.  This sum is to be paid no later than six weeks from the date of this decision.

Wages.  Non-payment