ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00042879
Parties:
| Complainant | Respondent |
Parties | William Moloney | Harry O Donovan |
Representatives | Complainant | Not represented |
Complaint(s):
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-00053176-001 | 09/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00053176-002 | 09/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00053176-003 | 09/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00053176-004 | 09/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00053176-005 | 09/10/2022 |
Date of Adjudication Hearing: 23/05/2023
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant, Mr Moloney, alleges that the respondent, Mr Donovan, owes him wages and that the withholding of these wages was as a result of a previous complaint the complainant had made to the WRC. The respondent did not attend the hearing and did not submit any evidence.
Evidence was given at the hearing under oath by the complainant. |
Summary of Complainant’s Case:
The complainant made a complaint to the WRC regarding no payslips and no contract of employment on 10/03/2022. The respondent was made aware of this. The next payment saw the complainant’s wages reduced with no explanation. From this point in time the complainant’s wages became very erratic. He went from weekly payment to up to 2, 3 or 4 week intervals with no communication given. The complainant is owed 5 weeks’ wages. |
Summary of Respondent’s Case:
The respondent did not attend the hearing and did not submit any evidence. |
Findings and Conclusions:
The complaints listed in the complaint form to the WRC list various occasions on when the complainant alleges he did not receive his due pay. In addition, in the narrative in the complaint form, it is clear that the complainant believes that this was in penalisation for raising a previous complaint with the WRC in relation to breaches of the Terms of Employment (Information) Act 1994. While the complaint submission ticks the box for complaints under the Payment of Wages Act, it is clear from the narrative within the complaint that the complainant believes himself to have been penalised contrary to the Employment (Miscellaneous Provisions) Act 2018, for making a complaint under the Terms of Employment (Information) Act, 1994. In County Louth VEC v Equality Tribunal and Brannigan, McGovern J. said that form EE1, a non-statutory form, was only intended to set out, in broad outline, the nature of the complaint. Consequently, it was permissible to amend a claim set out therein so long as the general nature of the complaint remains the same. In terms of the causes of actions not selected on the complaint form, a lenient approach per Louth VEC continues. This acknowledges that complaints forms are not pleadings within the traditional sense. If a fact is referred to in the written submissions which correlates with a cause of action not selected on the complaint form and the respondent has been afforded an opportunity to deal with this in written submissions, it may be allowed to proceed at the hearing if it is referred within the written submission. I therefore may consider the complaint of penalisation. The complainant stated in evidence that he had not been paid for a total of 5 weeks. The respondent did not appear at the hearing and did not contest this evidence. I am satisfied that the respondent was on notice of the hearing, that the non-attendance has not been explained to my satisfaction. The complaint is therefore well-founded The complainant stated in evidence that he believed the erratic payments commenced as a result of a complaint he had made to the WRC. The respondent did not appear at the hearing and did not contest this evidence. Therefore this complaint is well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00053176-001, CA-00053176-002, CA-00053176-003, CA-00053176-004, CA-00053176-005. The complaints are well founded, and I order the respondent to pay the complainant €2,910 the equivalent of 5 weeks’ wages. The complaint of penalisation under Section 7 of the Terms of Employment (information) Act 1994 as amended is well founded and I order the respondent to pay the complainant €2,328 the equivalent of 4 weeks’ wages. |
Dated: 29th September 2023
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Penalisation, non-payment of wages, non-appearance by the respondent |