Complainant

Respondent

Parties

Seamus  O'Cianain

Alan Wyse & Sons

Representatives

  Appeared In Person

 Appeared in Person

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-00049474-001

29/03/2022

On 29 March 2022, the Complainant submitted a claim for nonpayment of his holiday pay on cessation of employment. He had worked in a General Operative role from June 1, 2021, until his resignation of employment on 23 December 2021.

The Respondent operates a small family run building business, where the complainant was the sole external employee. On 25 May 2022, The Respondent denied the claim and issued correspondence to the WRC that he intended to cover a shortfall in cesser pay directly to the Complainant.

The complainant, a lay litigant, outlined that he had commenced work with the Respondent at a premises overhaul in June 2021. He was not provided with either a contract or pay slips.

His employment was based on a verbal agreement of €100 nett per day.

He worked hard at the business and decided to leave his employment in December 2021. He ran into difficulty in securing his holiday pay on cessation of employment. The Respondent had made a house call in January 2022 and made an initial payment, but he maintained that he was owed an outstanding €600.00, which amounted to a breach of the Payment of Wages Act, 1991.

In his opening statement and in representing his own case, the complainant evaluated the time spent as an employee of the respondent as lacking in employment foundation documentation. He went on to outline that the Respondent had not covered his leaving fairly with DSP and he was compelled to wait for an extended period before his social welfare was paid with appropriate retrospection. He also outlined some concerns regarding tax deducted for that period.

He sought payment of €600.00 owed.

The Respondent appeared in person with his Accounting Officer. In his opening statement at hearing, he acknowledged that a mistake had occurred in the calculation of the complainants cesser pay on leaving employment.

He confirmed that the complainant had been paid in accordance with his hours worked. He was not prepared to misrepresent the complainants leaving his employment as he was clear that he had work available for him.

Notice of the complainant’s intention to resign was communicated in a short text on 23 December 2021.

The Respondent acknowledged that he had not executed his plans to pay the complainant for outstanding annual leave in the May 2022 correspondence to WRC.  

I have been requested to reach a decision in this case on whether the €600.00 claimed by the Complainant constitutes a contravention of Section 5 of the Payment of Wages Act, 1991.

In arriving at my decision, I have taken on board both parties opening statements and inter party correspondence.

I have recorded a decision on consent.

The law on deduction of wages is found in Section 5 of the Act.

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

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.

The Complainant came to hearing carrying a high level of grievance in relation to unresolved issues regarding this employment in terms of foundation documents, training, tax and PRSI etc.

I intervened early to draw the clear lines of my jurisdiction with the parties in accordance with the Payment of Wages Act, 1991.

I offered the parties time to reach a mutual agreement in the case. This was not accepted by a majority.

I listened carefully as both parties recounted a functioning working relationship until the time of resignation by text on 23 December 2021.

The employment would have been much better supported by a contract of employment and pay slips. I addressed the Respondent on this directly.

However, the complainant could have managed his resignation in a more respectful manner in accordance with the Minimum Notice and Terms of Employment Act, 1973

Right of employer to notice.

6.—An employer shall, subject to the right of an employee to give counter-notice under section 10 of the Act of 1967 or to give notice of intention to claim redundancy payment in respect of lay-off or short-time under section 12 of that Act, be entitled to not less than one week’s notice from an employee who has been in his continuous employment for thirteen weeks or more of that employee’s intention to terminate his contract of employment.

What occurred in this case was regrettable as the employment had been mutually respectful up until that point.

I addressed the Complainant on his statutory rights going forward to employment foundation documentation.

The Respondent did not take issue with the €600.00 claimed. He agreed to pay this amount, less statutory deductions.

I find that the Respondent acted in contravention of Section 5(1) of the Payment of Wages Act, when he discharged a part payment for annual leave owed to the complainant on cessation of his employment. This amount of €600.00  is properly payable in accordance with Section 5(6) of the Act.

The claim is well founded.

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.

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the provisions of Section 5 of that Act.

I write this decision on consent of both Parties.

I have identified a contravention of Section 5 of the Payment of Wages Act, 1991. The Complainant did not receive his full cesser pay in respect of untaken annual leave at the conclusion of his employment.

The Respondent has agreed to pay the Complainant €600.00 in compensation, less statutory deductions in respect of this contravention.

Both Parties have stated their agreement to proceed on that basis.

Claim for cesser pay.