Complainant

Respondent

Parties

Seán  Costello

Mhc Recruitment Consultants Ltd Trade Hire

Representatives

Dublin South Citizens Information Service

No appearance by, or on behalf of, the Respondent

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-00052718-001

08/09/2022

The Complainant submits that the Respondent refused to pay him outstanding wages and bonuses totalling €10,794.86 contrary to the Payment of Wages Act 1991. This comprises €6,538.46 in unpaid wages; €923.07 in holiday pay; and €3,333.33 in notice.

The Respondent company operates a construction employment agency placing candidates in jobs throughout Ireland.

The Complainant commenced employment as a Recruitment Consultant with the Respondent on a full-time basis on or about 8 November 2021. His annual salary was €40,000, with added commission of 10% on sales between €3,500 and €10,000; 15% between €10,000 and €15,000; and 20% on sales of €15,000 and above. In addition, the Complainant, who resides in Galway, had the use of a company van.

The Complainant states that the first six months of his employment went very well, and he secured €86,000 in sales for the company.  Given the successful completion of his first six months, the Complainant requested a pay rise in July. His request was refused on grounds that the Respondent was not making sufficient profit.

The Complainant submits that on Thursday 21 July 2022 while on annual leave he was contacted by the Company Director, and informed that there were insufficient funds to pay staff wages. The Complainant asserts that he was asked to follow up payments from clients.

The Complainant submits that on Friday 22 July 2022 he travelled from Galway to the company office in Dublin and was informed by a work colleague that he was not being paid again that week. The Complainant asserts that he was further informed that the company was operating as normal and that all other employees, except for the Complainant and his partner, had received their wages.  The Complainant left the company laptop and mobile phone in the office and returned home to Galway in the company van.

On Monday 25 July 2022 the Company Director sent a text message to the Complainant's partner claiming that the company had ceased trading and that the Complainant's employment was terminated with immediate effect. The Company Director indicated that the outstanding money would be paid in full.

The Complainant submits that the company operates on a back week.  He was due payment on Friday 22 July 2022 for work completed between Monday 11 July and Sunday 17 July 2022.  The Complainant also submits that he was due payment on Friday 29 July 2022 for work completed between Monday 18 July and Sunday 24 July 2022.  The Complainant submits that the Respondent failed to pay his wages for these two weeks.  The Complainant’s gross weekly wage was €769.23.  He is owed two weeks’ wages which amounts to €1,538.46. 

The Complainant submits that he is owed six days outstanding annual leave which amounts to €923.07.  He further submits that his contract stated that he was entitled to one month’s notice.  As he did not receive any notice, he submits that he is owed €3,333.33.  Finally, based on his sales, the Complainant submits that he is owed €5,000 in sales commission. 

A dispute arose between the Complainant and the Respondent in relation to the return of the company van. The Complainant submits that he sought assurances from the Respondent that his expenses for travelling from Galway to Dublin to return the company van would be covered but this was not forthcoming. He also sought assurances regarding the payment of outstanding wages.  Again, this was not forthcoming.

The Complainant submits that the Respondent sent persistent messages to his partner seeking the return of the van. The Complainant states that at no time did he refuse to return the van but wanted assurances regarding his expenses.  In the event, the Respondent employed the services of a recovery company and informed the Complainant that the €738 charge for the recovery of the vehicle would be made against him.

On Wednesday 10 August 2022 the Citizens Information Service (CIS) wrote to the Respondent on behalf of the Complainant seeking payment of all outstanding wages due. 

On Friday 19 August 2022 the Respondent replied to the CIS claiming that the Company Director had informed the Complainant that the Company had ceased trading due to lack of funds collected over the previous six weeks. The Respondent further claimed that the Complainant came to the office on 25 July 2022 and informed staff that he no longer worked for the company and proceeded to wipe his phone and computer. The Respondent also indicated that the company was trading once again, that the Complainant could return to his employment, and that all outstanding monies due would be worked out over the following weeks and paid in due course.

On Thursday 8 September 2022 the CIS wrote to the Respondent stating that it had failed to pay outstanding wages due to the Complainant and indicating that a complaint would be submitted to the Workplace Relations Commission if the matter was not resolved.

On Monday 12 September 2022 the Respondent replied to the CIS requesting that the Complainant confirm that he had left the company and once such confirmation was received that "we will be able to settle up any monies owed to him".

On Wednesday 14 September 2022 the CIS replied to the Respondent stating it was the Complainant's position that the company had dismissed him on 25 July 2022 on the basis that it had ceased trading. A further request was made to settle outstanding wages due to the Complainant.  As the Respondent failed to pay the outstanding amount, a complaint was submitted to the Workplace Relations Commission.

Summary

In summary, the Complainant submits that the Respondent confirmed in correspondence with the Complainant's partner and representative that wages were outstanding and would be paid.  The Respondent has failed to pay the amount due to the Complainant.

The Respondent did not attend the hearing into this complaint.  I am satisfied that the Respondent was on notice of the date, time, and location of the hearing.

Legislation

Section 5(1) of the Payment of Wages Act prohibits an employer from making a deduction from the wages of an employee unless certain conditions are fulfilled.  Section 5(6) provides that the non-payment of wages which are properly payable to an employee by an employer shall be treated as a deduction unless it was due to a computational error.  I have included the relevant sections of the Act below.

Section 5 (1) of the Payment of Wages Act, 1991 provides that –

“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.”

Section 5(6) of the Act provides that 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 employerfrom the wages of the employee on the occasion.”

As the Respondent did not attend the hearing, my findings and conclusion are based on the uncontested evidence, both written and oral, of the Complainant.

Outstanding Wages

Based on the uncontested evidence of the Complainant, I find that the Respondent owes the Complainant two weeks’ wages which amounts to €1,538.46 gross.

Minimum Notice

I note that the Complaint has submitted a claim four weeks’ notice in line with his contract of employment.  I would point out, in rewarding redress in relation to minimum notice I am constrained by the provisions of the Minimum Notice and Terms of Employment Act which provides for a notice period of one week for an employee who has been in the continuous employment of his employer for a period of between thirteen weeks and two years.

Based on the uncontested evidence of the Complainant, I find that the Respondent owes the Complainant minimum notice of one week’s wages which amounts to €769.23 gross.

Commission

Based on the uncontested evidence of the Complainant, I find that the Respondent owes the Complainant €5,000 in sales commission. 

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded. 

In line with section 6 of the Payment of Wages Act 1991, I direct the Respondent to pay the Complainant the sum of €7,307.69 gross.

Payment of Wages