ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040614
Parties:
| Complainant | Respondent |
Parties | Hannah Daniels | Funactive Ltd |
Representatives |
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Complaint:
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-00051824-001 | 25/07/2022 |
Date of Adjudication Hearing: 02/03/2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Procedure:
In accordance with s 41 of the Workplace Relations Act 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
On 15 February 2023, Mr Eddie O’Dwyer on behalf of the respondent, emailed the Workplace Relations Commission to advise that he needed access to three named email accounts to prepare for the hearing. Mr O’Dwyer added that access to these email accounts was in the control of the complainant. Mr O’Dwyer stated that access to these email accounts was required to prove that the complainant’s work was not carried out as requested and that therefore there was no case to answer under the Payment of Wages Act 1991. The Workplace Relations Commission in reply advised the respondent to attend the hearing and make this known to the Adjudication Officer who would make a ruling on the matter. The respondent was advised that if he did not attend the scheduled hearing, the Adjudication Officer may hear the complaint and may issue a decision in the respondent’s absence. Mr O’Dwyer in reply stated that he would only attend the hearing if access to the email accounts was provided in advance of the hearing. The Workplace Relations Commission in reply reiterated its position on the matter.
On 21 February 2023, Mr O’Dwyer queried if the hearing could be attended remotely. The Workplace Relations Commission confirmed that the hearing was scheduled to take place in person.
On 1 March 2023, the Workplace Relations Commission advised the respondent that the hearing would be changed from an in-person to a remote hearing as the complainant was residing outside of the State. Mr O’Dwyer in reply stated that he was not able to engage in the hearing on a remote basis on the grounds that: he would be travelling and would not have access to a secure wifi network; he had been previously refused a remote hearing; and the complainant should be required to attend in person as was expected of him. Mr O’Dwyer also reiterated his request for access to three email accounts to prepare for the hearing. A link to the remote hearing was sent to Mr O’Dwyer in advance of the hearing.
A remote hearing commenced at 10.00am on 2 March 2023. The respondent did not attend the remote hearing. I was advised at 10.15am that a person had presented at the Workplace Relations Hearing Room for this hearing. A note signed by Mr Eddie O’Dwyer was left at reception to say that Mr O’Dwyer attended the hearing room at 10.00am but had not been invited to the adjudication hearing. The note also stated that it was 10.07am and that Mr O’Dwyer had to leave as he had other business commitments. Mr O’Dwyer was requested by a member of staff at reception to wait while that member of staff alerted the Adjudication Officer to Mr O’Dwyer attendance at the hearing room.
I temporarily adjourned the remote hearing on learning that Mr O’Dwyer had attended in person at the WRC hearing room. However, I was advised that Mr O’Dwyer had already left having advised reception that he had other commitments.
I was satisfied that Mr O’Dwyer was on notice that the hearing was to take place remotely and not in-person. Further, Mr O’Dwyer stated that he could not remain after 10.07am as he had other business commitments. Therefore, regardless of whether the hearing was in person or via a remote platform, Mr O’Dwyer had other business commitments to attend and was not available to participate in a hearing after 10.07am. On that basis I continued with the remote hearing.
The complainant was not represented and gave evidence under affirmation. The hearing was held in public, and the complainant was made aware that names would be published in this decision.
At the hearing the complainant was requested to furnish the Workplace Relations Commission with a copy of an email which she stated detailed the agreed rate of pay and a copy of a payslip received (which the complainant submitted was the only payslip she received). These documents, together with a cover email, were duly provided and were copied to the respondent. The oral evidence of the complainant and the aforementioned documents were taken into consideration by me in deciding on this complaint.
Background:
The complainant contends that is she owed €600 in wages. |
Summary of Complainant’s Case:
Evidence of the Complainant The complainant was employed on a temporary basis with the respondent commencing on 23 May 2022 until 2 July 2022 working 40 hours per week, 9.00am to 5.30pm. The complainant had previously worked for the respondent on a casual basis while in college, and she was paid the national minimum wage for all hours worked during these periods of employment. The complainant described a very positive working relationship with the respondent. The complainant did not discuss a rate per hour with the respondent before commencing the period of employment which is the subject of this complaint. The complainant submitted that staff were normally paid on Thursday of every week. On 3 June 2022 one week’s wages for an amount of €365.28 was paid into her bank account. The complainant also received a payslip. This amount equated to €10.50 per hour, the national minimum wage payable at the time. The complainant emailed the respondent on 17 June 2022 asking for a higher hourly rate of pay. On the 18 June 2022, the respondent replied to the complainant’s email agreeing an hourly rate of €13 and that he would apply this hourly rate to her start date of 23 May 2022. The complainant did not receive her weekly wages due on or around 9 June 2022 or the retrospective differential between the two hourly rates as promised. The complainant outlined that she was aware the respondent was having financial difficulties. She emailed the respondent offering to reduce her hours to part-time, however, she did not receive a reply. On 18 June 2022 the complainant received €365.28 into her bank account. The complainant emailed the respondent as this did not equate to the hourly rate agreed in the email of 18 June 2022. The complainant did not receive a response. The complainant submitted that she did not receive her weekly wages which fell due for payment on 30 June 2022. The complainant stated that although she knew her employment was temporary, she was surprised to receive an email dated 2 July 2022 to inform her she was dismissed. The complainant contacted the respondent several times thereafter looking for the unpaid wages. She did not receive a response. On 28 July 2022 the respondent paid an amount of €840 into the complainant’s bank account. The complainant stated that she is not looking for a payment for holidays accrued. The complainant contends that the total amount she received in wages was €1,935.84 net and that she is owed €600. The complainant did not receive payslips for any wages received other than one payslip in relation to the first week of wages received by her. |
Summary of Respondent’s Case:
The respondent did not attend the remote hearing. |
Findings and Conclusions:
Following the hearing, the complainant submitted the following summary to the Workplace Relations Commission: “To ensure there is full clarity on my pay, below is a breakdown of what payments should have and were actually paid to me”: WEEK 1: 23-27 May: (payslip attached) Paid 365.28 NET WEEK 2: 30 May - 03 June: No payslip, Paid 365.28 NET WEEK 3: 06-10 June: Not working, was not paid. WEEK 4: 13-17 June: Paid 365.28 NET WEEK 5: 20-24 June: Not paid WEEK 6: 27 June - 01 July: Not Paid. Random Payment on July 28th from Funactive Ltd: €840 I am claiming for a total remaining balance of €600 based upon calculations discussed in the hearing on 02/03/23”. A payslip submitted by the complainant shows an hourly rate of €10.50 per hour and a net payment of €365.28 for 37.5 hours. The complainant detailed her daily working hours as 9am to 5.30pm. I find the complainant worked 37.5 hours per week (excluding breaks). The complainant submitted in writing that she did not work week 3. In an email dated 17 June 2022 the complainant stated she worked 4 days in week 4. In oral evidence the complainant outlined that a lump sum payment of €840 was paid into her account on 28 July 2022 which I find related in part to wages owing for weeks 5 and 6. Based on the above and an hourly rate of €10.50 per hour, I calculate the following:
*Approximate - depends on how 4 days is taxed. ** Part of the lump sum of €840 paid on 28 July 2022. The uncontested evidence of the complainant is that she is owed a further €600 being the differential between the hourly rate paid of €10.50 per hour and the agreed hourly rate of €13. The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55,outlined that when considering a complaint under the Payment of Wages Act 1991, it must first be established the wages which were properly payable before considering whether a deduction had been made. Thus to succeed in this complaint the complainant must show that €600 in wages were properly payable. Section 1 of the Payment of Wages Act 1991 (“the Act”) defines wages 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 . . . .” In an email to the respondent dated 17 June 2022 the complainant requested a higher hourly rate of between €13 and €15. A reply email from Mr O’Dwyer dated 18 June 2022 stated in relation to the hourly rate: “I have now paid you as per your previous payslip as I didn't get the hours to the accountant this week. However, I will forward your hours to the accountant and I can reimburse you for any balance due on €13 per hour”. In reply on 20 June 2022, the complainant informs Mr O’Dwyer that the money owed from the balance of what was already paid based on €13 per hour is €208. Having reviewed the emails exchanged between the complainant and the respondent dated 17 and 18 June 2022, I am satisfied that the respondent had agreed to an hourly rate of €13 and that the complainant would be “reimbursed” for any balance due on €13 per hour. Therefore, I find that the hourly rate properly payable was €13. I find that the complainant worked a total of 180 hours over the 6 weeks she was employed by the respondent. I find that a differential between €10.50 and €13 for 180 hours worked is properly payable to the complainant. I calculate the net balance of wages due to the complainant to be €523.80. As noted above, I calculate that the complainant has already received €182.50 of this sum. Accordingly, I find that the balance of wages outstanding and properly payable to the complainant to be €341.30 net. Section 5(1) of the Act provides that an employer shall not make a deduction from the wages of an employee unless such a deduction is authorised or consented to. Section 5(6) of the Act provides: “Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”. Section 6 (1) of the Act provides: 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 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities 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, or tip or gratuity as the case may be (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) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of 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. I find that this complaint is well founded in part, and I direct the respondent to pay the complainant the net sum of €341.30. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the complaint is well founded in part, and I direct the respondent to pay the complainant the net sum of €341.30. |
Dated: 30th March 2023
Workplace Relations Commission Adjudication Officer: Bríd Deering
Key Words:
Deduction from wages. |