FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES: CM BARD TAVERN LIMITED T/A BAR SQUARE - AND - MR RICHARD GAUGHAN DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00034756, CA-00045776-001 DETERMINATION: Mr. Gaughan, ‘the Complainant’, worked for CM Bard Tavern Limited, ‘the Respondent’ for two weeks, from 5 July 2021 to 18 July 2021. Subsequently, the Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, that he had not been paid the correct hourly pay as agreed with the Respondent and that he had not been paid for the hours worked, contrary to his rights under the Payment of Wages Act, 1991. An Adjudication Officer, ‘AO’, decided that the complaint regarding hourly pay was not well founded but that the complaint regarding non payment for hours worked was well founded. The Respondent was directed to pay €802.50 compensation to the Complainant. The Respondent appealed to this Court. The Court observed at the outset of the Court hearing that it was placed in difficulty in considering this matter as neither party complied with the requirement to adhere to Court procedures. The documentation submitted in advance by the Complainant could not, in any real sense, be regarded as a submission and the summary below is the Court’s attempt to capture what it believes was argued. The Respondent delayed provision of its submission until just days before the hearing. The Court has endeavoured to make what it can of this unsatisfactory situation. The Complainant confirmed to the Court that he did not wish to pursue the complaint regarding hourly pay and that he accepted that he was entitled to be paid €15 per hour. It was agreed by both parties that the hours recorded for the second week of the Complainant’s employment were correct and that the issue between the parties was a claim by the Complainant to have worked 51 hours while he had been paid only for 6 hours, a claim denied by the Respondent. Summary of Respondent’s arguments The Complainant worked a total of 6 hours in week 1 of his employment as shown on a roster provided to the Court. The Complainant was paid for all hours worked. Payment was split over the two weeks that the Complainant worked for the Respondent. The Complainant continued to work in another employment during the relevant time and sought to be paid in cash, which was refused. Summary of Complainant arguments It is for the employer to keep accurate records. The Complainant worked 51 hours in the week concerned and is entitled to be paid for those hours. The Respondent did not produce the document purporting to be a roster at the adjudication hearing and the Court’s attention is drawn to the AO observations about the lack of same. The Complainant believes this newly produced document to be false. The applicable law Payment of Wages Act 1. "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 his employment, whether payable under his contract of employment or otherwise 4.—(1) An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees. Deliberation In a parallel case under the Terms of Employment, (Information) Acts 1994 to 2014 involving the same parties, the Court has made a Determination on the failure of the Respondent to provide the Complainant with the necessary contract prescribed by that Act. The Court notes that the consequence of that Determination is an inevitable conclusion that the Respondent failed to comply with the requirements of s. 4(1) as set out above of the Act applicable to this case also. It is common case between the parties that the Complainant was entitled to be paid €15 per hour for each hour worked. There is a direct conflict of evidence as to the hours worked by the Complainant in the week in question. As ever, this makes it difficult for the Court to determine the truth of what occurred. The Respondent offered a document that was stated to be a roster for that week showing that the Complainant worked six hours. However, that same roster shows a third party as having worked six hours that week while a pay slip for that third party provided to the Court shows that she claimed for 28 hours and was paid for 28 hours worked in that week. In the absence of a clear explanation, the Court is obliged to observe that the roster provided is a poor basis for concluding that the Complainant worked the hours shown, as claimed by the Respondent. Given the absence of clear documentation to prove otherwise, the Court concludes that, on the balance of probability, the Complainant worked 51 hours as he claims and that he is entitled to be paid for the hours worked. It was agreed by the parties that the Complainant worked 45 hours in week two of his employment by the Respondent. A combination of week two and week one hours worked while the Complainant was in the employment comes to 96 hours or an entitlement to be paid €1440, (96x€15), in total for those weeks. The Complainant was actually paid €772.50. He is, therefore, entitled to be paid the balance of €667.50. The Court determines that this amount should be paid by the Respondent to the Complainant. Determination The Decision of the Adjudication Officer is varied.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
