ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045580

Parties:

	Complainant	Respondent
Parties	Puneet Yadav	Waldam Limited trading as Alpine Security
Representatives		Mr. John O’Shea Managing Director

Complaint:

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-00034874-001	26/02/2020

Date of Adjudication Hearing: 09/04/2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.

The Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented, the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.

In particular, the Complainant herein has referred the following complaint:

A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.

Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.

Section 5 (1) states that an employer shall not make a deduction from an employee unless:

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;

Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.

As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).

The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six month period (after the contravention) was due to reasonable cause

Background:

This matter was to be heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party would have been prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions andit was possible for me to make all relevant inquiries in the usual way.

In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was to be conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

Had evidence been given it would have been in compliance with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came intoeffecton the 29th of July 2021, and which said legislation accommodates situations where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint. In such circumstances, an oath or an affirmation may be required to be administered to any person giving evidence before me. It is noted that the giving of false statements or evidence is an offence.

The Complaint herein was brought to the attention of the WRC on the 26th of February 2020 by way of a workplace relations complaint form.

Summary of Complainant’s Case:

The Complainant did not attend. I am satisfied that the Complainant was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 26th of January 2023 - and sent to the address provided by the Complainant on the workplace relations complaint form.

The Complainant did not attend. I am satisfied that the Complainant was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 20th of February 2024 - and posted to the address provided by the Complainant on the workplace relations complaint form.

From the Complaint form provided, I have discerned that the Complainant seeks to establish that he was not paid his salary seemingly for some portion of the month of January in 2020. The Complainant provided very little information. I do not know when the Complainant commenced his employment or what his rate of pay was. The Complainant has not engaged with the Workplace Relations Commission outside issuing the complaint.

Summary of Respondent’s Case:

The Respondent had representation at this hearing. The evidence for the Respondent entity was to be given by the Managing Director of the Security Company.

I understand that the Respondent intended defending the within complaint though was a stranger to the exact details.

Findings and Conclusions:

The Complainant did not engage with the hearing process. I allowed a half hour to pass before indicating that I would be proceeding to draft a decision based on the non-attendance of the Complainant herein. No contact has been made by the Complainant since that time.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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

CA-00034874-001 – The Complainant did not attend and did not provide evidence substantiating his claim. The Complaint herein is not well founded and fails.

Dated: 24-04-2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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