Complainant

Respondent

Parties

Aidan  Lynch

Xs Direct Insurance Brokers Ltd

Representatives

  Self

No show

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-00050899-001

28/05/2022

The Complainant commenced employment with the Respondent on or about the 27th of January 2020 as a Senior Claims Handler. The Respondent employer is in receivership.

Arising from financial challenges the company implemented pay cuts on or about 23rd of April 2020. The cut amounted to a 15% reduction and initially it was to last for 6 months. The Complainant stated that the cut was implemented unilaterally. On or about the 15th of April 2020 the CEO had informed employees that their agreement was required before implementing any pay cut.

Due to ongoing financial challenges the CEO wrote to staff on or about 30th of July 2020, to inform staff that pay cuts would last for a further 6 months. The Complainant stated that he never agreed to this reduction.

The Complainant amended his form at the hearing and stated that the complaint is for the period 6 months up to the date of lodging his complaint form with the WRC on the 28th of May 2022.

 He assesses loss to cover a period of 3 months that related to November 2021, December 2021 and January 2022 payrolls as follows:

Three months’ salary: €492.64 + €492.64 + €524.61 = €1,509.89 Three months pension contributions: €729.16 = €2,187.50 Three months (pro rata) bonus: €729.16 = €2,187.50 Total: €5,884.89

In February pay was restored by the Receiver.

Based on sworn evidence the Complainant assessed loss as follows:

1.       Unauthorised salary deduction for 3 months €5884.89

Based on the payslips submitted before and then after the pay cut that loss is accurate.

The period of loss runs for 3 months commencing in November 2021 and running until January 2022

The wage reduction amounting to €5884.89 equates to a 15% unauthorised pay cut for 6 months.

The Respondent was properly notified of the date and time of the hearing on the 17th of January 2023 and failed to attend. The Receiver was notified on the 3rd of February 2023 of the complaint.

On or about the 13th of February 2023 the Receiver in correspondence to the WRC stated:

Our understanding is that these claims relate to the period prior to our appointment as receivers and accordingly we will not be taking part in the hearings. However you may send us copies of the claims which we can pass to any subsequently appointed liquidator.

The Respondent was properly notified of the date and time of the hearing on or about the 17th of January 2023 and failed to attend. The Receiver was notified on the 3rd of February 2023 of the complaint and failed to attend.

The Complainant has opened payslips and corroborating evidence detailing the cuts and when they would be implemented. In an email to staff dated 30th of July 2020 the CEO stated that the pay cuts previously implemented would continue for a further 6 months. The cuts on the evidence were not agreed to and continued until the Complainant’s pay was restored on or about February 2022.

Wages in the Payment of Wages Act 1991 is defined 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, sickor maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

The key issue before me is whether the amount being claimed was due.

Section 5 of the Act states:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

Section 5 (6) states:

(6) 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.

On the evidence the reduction was made unilaterally and the total amount of wages properly payable to the Complainant was less than contractually due.

I determine that for the relevant period the amount unlawfully deduced was €5884.89

The Complaint is well founded.

Section 6 of the Act states:

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

On the evidence the reduction was made unilaterally and the total amount of wages properly payable to the Complainant was less than contractually due.

I direct that the Respondent pay to the employee €5884.89 less any statutory deductions

Payment of Wages