Complainant

Respondent

Parties

Niamh Rosemary  Coffey

Pandora

Representatives

Charlie Ritchie Pandora Jewellery UK LTD

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00054438-001

10/01/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00054436-002

10/01/2023

The Worker commenced her employment as a Regional Manager with the Employer on 18 January 2022 and was paid €66,000 per annum. Her employment ended on 30 August 2022. She stated that she did not receive her full holiday entitlements and was also not paid a bonus that she was due.

The Complainant stated in her evidence that there was a shortfall in the annual leave entitlement in the amount of €592 that she was due to be paid by the Respondent.

She also stated that her wages at the end of July 2022 were reduced because she did not receive a bonus payment in the amount of €650 that she was entitled to, in accordance with the terms and conditions of her contract of employment.

The Respondent did not attend the hearing and furnished a written submission only. They denied that the Complainant did not receive her full holiday entitlements and stated that she was overpaid in the amount of €1,015.38 in respect of her overall entitlements and that there were no further wages due to her.

CA-00054438-001:

The Law

Article 7 of the Working Time Directive (2003/88/EC) sets out the entitlement to paid annual leave as follows:

“Annual Leave 1.  Member States shall take the measures necessary to ensure that every worker is entitled to paid annual leave of at least four weeks in accordance with the conditions for entitlement to, and granting of, such leave laid down by national legislation and/or practice.  2. The minimum period of paid annual leave may not be replaced by an allowance in lieu, except where the employment relationship is ended.”    

This provision is transposed into Irish lay by virtue of the enactment of Sections 19, 20 and 23 of the Organisation of Working Time Act.

Section 19 of the Organisation of Working Time Act 1997 outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(a)   4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment).

(b)   One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)    8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Section 20 (1) deals with the times at which annual leave is granted to an employee and this is determined by the employer subject to a number of provisions:

(a)   The employer taking into account-

(i)               The need for the employee to reconcile work and any family responsibilities,

(ii)              The opportunities for rest and recreation available to the employee.

(b)   To the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than one month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and

(c)    To the leave being granted within the leave year to which it relates or, with the consent of the employee, within 6 months thereafter.

(2) The pay in respect of an employee’s annual leave shall –

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and ….”

Findings:

The Complainant stated in her evidence that she was not paid an annual leave entitlement in the amount of €592 that she was due. The Respondent, in their written submission, stated that the Complainant received her full holiday pay and was overpaid in the amount of €1,015.38 in respect of her overall entitlements.  

Given that the Complainant contested having received her full holiday entitlements and considering that the Respondent did not attend the hearing, I prefer the Complainant's evidence and conclude that this complaint is well founded.

CA-00054436-002:

Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee 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”

Section 5(1) of the Payment of Wages Act 1991 provides: 

“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.” 

The remainder of the Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  While each case will turn on its own particular facts, it will be necessary to ascertain, in the instant case, (1) whether the pay constituted a term of the Complainant’s contract and (2) if has there been a contravention of Section 5 of the Act.

In relation to the instant complaint, the Complainant stated in evidence at the hearing that her wages at the end of July 2022 were reduced because she did not receive a bonus payment in the amount of €650 that she was entitled to in accordance with the terms and conditions of her contract of employment. The Respondent in their written submission stated that the Complainant was overpaid in the amount of €1,015.38 in respect of her overall entitlements and that there were no further wages due to her.

Given that the Complainant denied that she was overpaid and considering that the Respondent did not attend the hearing, I prefer the Complainant's evidence and conclude that this complaint is well founded.

CA-00054438-001:

I find that this complaint is well founded for the reasons set out above, and that the Respondent should pay the Complainant €592 which is subject to taxation and the normal statutory deductions.

CA-00054436-002:

I find that this complaint is well founded for the reasons set out above, and that the Respondent should pay the Complainant €650 which is subject to taxation and the normal statutory deductions.