Complainant

Respondent

Parties

Hanna  Milian

Amk Hospitality Limited Northern Soul

Representatives

  Self-Represented

 The Respondent did not attend and was not represented at the hearing. 

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-00056240-001

22/04/2023

This matter came before the Workplace Relations Commission dated 22/04/2023.  The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.   A hearing for that purpose was scheduled to take place on 20/10/2023. 

The Complainant commenced employment with the Respondent on 04/07/2022.  The Complainant resigned her employment on 23/12/2022 with such resignation taking effect on 01/01/2023.  At all material times the Complainant was employed by the Respondent as a General Manager in his restaurant.  The Complainant worked 45 hours per week.  Her net pay weekly was €814.85.   

The Respondent did not attend and was not represented at the hearing. 

CA-00056240-001

This is a complaint pursuant to section 6 of the Payment of Wages Act, 1991 and under pay complaint type the Complainant asserts “my employer has not paid me or has paid me less than the amount due to me”.  The Complainant asserts the monetary value of wages not received is €2,381.74.   The Complainant asserts the monetary value of holiday pay not received is €4,615.36 

The Complainant gave evidence on affirmation. 

The Complainant commenced employment with the Respondent as a General Manager in his restaurant on 04/07/2022.  The Complainant terminated her employment with the Respondent because she was not paid for hours she had worked.  Specifically she states there was a shortfall in her wages owed to her in the amount of €2,381.74 because she was not paid on 06/11/2022, 04/12/2022, 11/12/2022, 18/12/2022 and 25/12/2022 amounting to a shortfall in wages of €4,074.25 net.  The Complainant states she received a payment from the Respondent in the amount of €1,600.00 net on 23/12/2022. 

The Complainant states she is owed holiday pay in the amount of €4,615.36 but she was unable to provide any specific detail regarding this claim apart from an assertion that the company accountant had told her this was what she was owned in respect of annual leave and bank holiday payment.  The Complainant undertook to forward specific detail on this matter to the WRC within 7 days post hearing. 

The Respondent did not attend and was not represented at the hearing.  I note the Respondent has not filed any rebuttal submissions or documentation.  In the circumstances, no evidence has been adduced by or on behalf of the Respondent.

CA-00056240-001

This complaint pursuant to the Payment of Wages Act, 1991 was presented to the WRC on 22/04/2023.  The Complainant alleges non-payment of wages owed and non-payment of holiday pay owed. 

In her complaint the Complainant submitted that the Respondent made an unlawful deduction from her wages by not paying her for a number of weeks she worked and not paying her holiday pay.  As the Respondent did not attend and provided no written evidence my investigation is based on the oral and written evidence of the Complainant.  The Complainant was a credible and cogent witness and I have no reason not to believe the evidence she provided. 

The Relevant Law:

Section 1 of the Payment of Wages Act, 1991 defines wages as follows:

“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, or 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,”

Section 5(1) of the Payment of Wages Act, 1991 provides that an employer shall not make a deduction from an employee unless: [emphasis added]

The Deduction is required by Statute or Instrument;

The Deduction is required by the Contract of Employment;

The Employee has given his prior consent in writing. 

Accordingly, it is clear from section 5(1) above that, apart from tax, PRSI and USC, unless there is a provision in the employee’s contract of employment to deduct wages, an employer may not make a deduction from an employee’s wages, unless consent has been given in advance. 

The matter of redress is provided for 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) 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.”

The Complainant avers in her direct uncontroverted evidence that she was not paid on 06/11/2022, 04/12/2022, 11/12/2022, 18/12/2022 and 25/12/2022 amounting to a shortfall in wages of €4,074.25 net.  However, she states she received a payment of €1,600.00 net on 23/12/2022. 

Finnegan J, in the High Court case Dunnes Stores (Cornelscourt) v. Lacey [2007] ILR 478 held the first step to be taken is to determine the wages properly payable by a respondent as this is an essential prerequisite in determining such claims. 

It is necessary that I first establish the wages which were properly payable prior to considering whether a deduction has been made. 

I accept the Complainant’s uncontroverted evidence that she was not paid for the weeks worked as set out above.  I accept her evidence that she received a net payment of €1,600.00.  On the basis of the aforesaid figures I calculate the amount owing and properly payable to the Complainant to be in the sum of €2,474.25 net based on the following calculations:  €814.85 (weekly net pay) x 5 = €4,074.25 - €1,600.00 (net amount received from Respondent on 23/12/2022) = €2,474.25 net.

Turning now to the Complainant’s holiday pay claim and bank holiday pay claim.  The Complainant worked for the Respondent for 26 weeks.  During this time there were 4 bank holidays 3 of which the Complainant avers she worked.   I requested that the Complainant particularise this claim by forwarding me, post hearing, specific details regarding annual leave entitlement and annual leave actually availed of during the cognisable period pertinent to this claim.  I found the Complainant’s evidence in relation to the holiday pay claim to be vague and lacking in the evidential specificity required to enable me to decide upon this element of her claim and to establish her exact entitlement on termination of her employment.  The Complainant has failed to make out her case in this regard despite being requested and being provided with the opportunity to do so. 

Accordingly, I must find this element of the complaint under the Payment of Wages Act to be not well-founded. 

CA-00056240-001

I decide that this complaint of a contravention of the Payment of Wages Act, 1991 is well-founded in part and that the Respondent has unlawfully withheld wages due to the Complainant.  I direct the Respondent to pay the Complainant the sum of €2,474.25 net within 42 days of the date of this decision.   

Employer ceased paying wages;