Complainant

Respondent

Parties

Jade  Barolits

Austin Byrne Agnelto Ltd

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-00054300-001

27/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054300-002

27/12/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054300-003

27/12/2022

This matter came before the Workplace Relations Commission dated 27/12/2022.  The Complainant alleges contravention by the Respondent of provisions of the above listed statutes in relation to her employment with the Respondent.  A hearing for that purpose was scheduled to take place on 16/06/2023.  This hearing was adjourned to allow for the Respondent who claimed not to have been notified to attend.  The second hearing took place on 17/08/2023. 

The Complainant commenced employment with the Respondent on 29/10/2021.  The Complainant resigned her employment with such resignation taking effect on 08/12/2002.  At all material times the Complainant was employed by the Respondent as a retail assistant, and she also undertook some administrative duties for the Respondent working from home in the context of the latter.  The Complainant worked 18 hours per week on average and at the time of her resignation she was in receipt of €14 per hour. 

The Respondent is a Tipperary Crystal franchisee operating from two retail outlets namely in Ashleaf Shopping Centre and Clarehall Shopping Centre, respectively. 

These matters were the subject of two hearings.  The first hearing took place on 16/06/2023.  This hearing was adjourned on the basis the Respondent, when contacted by phone prior to the commencement of said hearing, claimed not to have been on notice of the hearing.  The second hearing took place on 18/08/2023 when the Respondent again failed to make an appearance. 

CA-00054300-001

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 €1512.00.  The Complainant asserts the monetary value of holiday pay not received is €1,021.44. 

The Complainant gave evidence on affirmation.  

The Complainant states that when she commenced her employment with the Respondent on 29/10/2021 she was in receipt of €10.80 per hour.  This increased in or around August 2022 to €14 per hour.  The Complainant on affirmation states her work pattern was as follows:

The Complainant received her last pay slip on 11/10/2022.  The Respondent informed the Complainant just before Halloween that the shop would be closing for refurbishment but that she would continue to be paid her regular hours during the period of refurbishment.  There had been no payment since 11/10/2022 although the Complainant continued to work up until her last day in the shop which was the 30/10/2022. 

When the Complainant had not received wages owed, she phoned the Respondent and he informed there would be a new owner under TUPE and somebody would call her.  The shop remained closed, and she called him a few more times looking for payment.  On the 18/11/2022 she went to the Clarehall shopping centre and saw that the shop was totally cleared out and she saw signage indicating a new Tipperary Crystal opening next door. 

The Complainant immediately phoned the Respondent, and he assured that the new owner would call her.  He reassured her she was still his employee, and she would still be working for him in the Ashleaf shop and she would get some hours in the new shop in Clarehall also. 

On or around the 25/11/2022 the Complainant went to Clarehall and observed that the new shop was fully open and operational.  She asked one of the staff if she could speak to the owner.  She was told nobody knew anything about her as an employee when the Complainant told the person she spoke to that she had been told by her boss it was a TUPE situation and that she would be working there. 

The Complainant phoned the Respondent and he told her not to listen to listen to the manager there and to wait it out and she would be paid, and she would have a job.  The Respondent assured her he would be in touch after Black Friday about working shifts in his other location and she would be paid as soon as possible as he was catching up on money owed out.  The Respondent informed her that he was under stress with his family and asked that she respect where he was at right now and assured her that he would get her sorted.

Having waited almost a month and contacting the Respondent on numerous occasions to try and get the wages she was owed she filed this complaint to the WRC. 

CA-00054300-002

This is a complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994.  The Complaint alleges she did not receive a statement in writing on her terms of employment. 

The Complainant’s employment commenced on 29/10/2021 and ended on 08/12/2022 during which time the Complainant avers she asked for a contract at least five or six times. 

The Complainant outlined that she never received a written contract of employment.  She stated that any information regarding her hours of work and salary were provided to her verbally and she had received nothing in writing from her the Respondent. 

CA-00054300-003

This is a complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994.  The Complainant alleges she did not receive a statement of her core terms in writing. 

The Complainant’s employment commenced on 29/10/2021 and ended on 08/12/2022 during which time the Complainant avers she asked for employment details at least five or six times. 

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-00054300-001

This complaint pursuant to the Payment of Wages Act, 1991 was presented to the WRC on 27/12/2022.  Therefore, the cognisable period that may be investigated is from 26/06/2022 until 27/12/2022.  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 days she worked and not paying her holiday pay.      

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 uncontested evidence provided on affirmation that the hours worked for the Respondent averaged 18 hours per week at a rate of €14 per hour since August/September 2022.  Prior to this time her rate of pay was €10.80 per hour. 

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.    

In making my decision in the within case, I am satisfied the Complainant was last paid by the Respondent on the 11/10/2022.  Based on the uncontested evidence of the Complainant I accept she was due to be paid on 25/10/2022 for 24 hours work.  I am satisfied the Complainant was not issued a payslip and her bank account was not credited with the amount properly payable in the sum of 24 x 14 = €336.00.  The Complainant worked a further 14 hours despite not having received her wages on foot of assurances from the Respondent that she would be paid “by the end of the week.” The amount properly payable to the Complainant is 14 x 14 = €196.00 in respect of this unlawful deduction. 

The Complainant submits the Respondent told her when he advised her the store was closing for refurbishment at the end of October that she would be paid her regular hours during the period of refurbishment and there was no need for her to come in to work tomorrow but that she would be paid.   It would appear this period of “refurbishment” was in effect a relocation to the retail unit next door.  The Complainant visited the newly opened store on 25/11/2022 as set out above.  Accordingly, I have calculated the period of refurbishment during which the Complainant had been assured by the Respondent that she would be paid regular hours to be from 29/10/2022 to 25/11/2022 (4 weeks) on the basis of the undisputed uncontested evidence of the Complainant on affirmation.  The sum properly payable to the Complainant is 18 x 14 x 4 = €1008.00.

The Complainant submits and in direct evidence on affirmation states the Respondent told her when he advised her the store was closing for refurbishment at the end of October that she would be paid her regular hours during this time of refurbishment. 

I am satisfied the Complainant was entitled to rely on the verbal assurances of the Respondent that she would continue to be paid during the shop refurbishment and that it was reasonable for her to do so.  She did rely on those assurances until she finally realised there would be no payment forthcoming not only for the regular hours payment promised during the shop refurbishment but also for the hours worked and arrears of wages in relation to same. 

I note the Respondent was aware of his monetary obligations in respect of the Complainant and of the fact that she was owed wages from her employment with him based on the following exchange noted on an email of which I had sight during hearing.  When the Complainant emailed the Respondent of her resignation due to the fact she could no longer work for him unpaid she requests that he please ensure that all outstanding wages and annual leave accrued is paid to her as soon as possible.  The Respondent replied as follows: “I completely understand your message and wish to apologise for the delay.  I am dealing with this and all jogger issues at the earliest.”   

I note the Complainant chased the Respondent for payment of monies owned until such time as she resigned on 08/12/2022 having been subject to the full gamut of excuses including but not limited to trouble with personal relationships and the pressures he was under and a reference to a TUPE scenario during this run-around and obfuscation. 

In the circumstances I find the non-payment of wages element of the complaint under the Payment of Wages Act to be well-founded and I direct the Respondent to pay the Complainant the amount of €1,540.00 (€336.00 + €196.00 + €1,008.00 = €1,540.00 net) in respect of the unlawful deductions from her wages as detailed and set out above.   

Turning now to the Complainant’s claim in regard to holiday pay owed to her, I requested that she particularise this claim by forwarding me, post hearing, specific details regarding annual leave actually availed of during the cognisable period pertinent to this claim, together with details of when she alleges to have worked on alternative days rather than availing of her annual leave entitlement.   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 to do so. 

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

CA-00054300-002/3

The Complainant submitted and it was her evidence that she did not receive a statement of her core terms in writing. 

The Complainant submitted and it was her evidence that she never received her terms and conditions of employment in writing. 

The Relevant Law:

The Terms of Employment (Information) Act, 1994 sets out the basic terms of employment which an employer must provide to an employee in written form.  The Complainant has referred a matter for adjudication under section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a contract of service has commenced and where the employee employed by the employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a statement of certain terms of the employment.  Section 3 of the 1994 Act sets out the aforesaid terms and includes items such as names, addresses and place of work.  There should also be a job title and a description of the nature of the work.  The start date and the nature/duration of the contract should be included in the statement together with the terms of remuneration.  This statement should be signed by both parties and a copy retained by both parties. 

In addition to the foregoing, the Employment (Miscellaneous Provisions) Act of 2018 amended section 3 of the 1994 Act so as to place an obligation on an employer to provide a new employee with a written statement of certain core details within five working days of the commencement of employment.  Such core details include names, address, nature of contract, remuneration and hours of work.  Failure to provide the core details after one month of continuous service can lead to an award of four weeks’ remuneration.  The balance of terms set out in the 1994 Act have to be detailed within the two-month period already specified.

The Complainant’s employment commenced on 29/10/2021 and ended on 08/12/2022 and, based on the uncontested evidence of the Complainant, I am satisfied she was not provided with any information whatsoever required under the Terms of Employment (Information) Act, 1994.  Accordingly, I find this complaint is well-founded.

In deciding on the matter of compensation I have taken cognisance of and I am guided by the Labour Court in the case of Megan Hayes Kelly v. Beechfield Private Homecare [DWT 1919] where an employee claimed her employer was in breach of the Terms of Employment (Information) Act because her contract of employment contained errors and omissions.  The Court in its determination considered that errors and omissions were at “the serious end of the spectrum” and awarded the maximum four weeks’ pay in redress. 

As the failure to issue anything in writing whatsoever within the required timeframe must undoubtedly be considered a more serious contravention of the Act than the issuing of an imperfect statement, I am bound to follow the authority of the Labour Court and I make the maximum award in the within case.    

Accordingly, pursuant to section 7 of the Act, an award of 4 weeks’ remuneration by way of compensation is just and equitable in the circumstances.   I award the Complainant compensation of 4 weeks’ wages in the sum of €1,008.00 (14 x 18 = €252.00 x 4 = €1008.00).  

CA-00054300-001

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 €1,540.00 net within 42 days of the date of this decision.    

CA-00054300-002/3

I decide that these complaints of contraventions of the Terms of Employment (Information) Act, 1994 are well-founded and I direct the Respondent to pay the Complainant 4 weeks’ wages based on an 18-hour week in the sum of €1008.00 within 42 days of the date of this decision.  For the avoidance of doubt this sum payable is redress of compensation for breach of statutory rights and is neither remuneration nor arrears of remuneration.

Core terms; terms and conditions; wages outstanding;