Complainant

Respondent

Parties

Kirsty  Moore

National Parents Council Post Primary Npcpp

Complainant

Respondent

Anonymised Parties

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Representatives

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-00059519-002

20/10/2023

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

CA-00059519-003

20/10/2023

The Complainant commenced her employment as a part-time Communications Officer with the Respondent on 4 July 2022 and was paid €1,800 per month. She was advised by the Respondent in June 2023 that the Department of Education was withdrawing their funding and that the organisation would therefore be dissolved in due course. She stated that she was not paid after 31 August 2023 despite still being in the Respondent’s employment. She also stated that she did not receive any annual leave payments in 2023.

The Complainant commenced her employment as a Communications Officer with the Respondent on 4 July 2022. She was advised by the Respondent in June 2023 that the Department of Education was withdrawing their funding and that the organisation would therefore be dissolved in due course. Despite repeated attempts to clarify her position, she has never received clarification of same.

She was advised on 20 October 2022 that the Respondent had asked the liquidator to contact her but they failed to do so. The Complainant stated that she subsequently learned on 16 November 2023 that her employment with the Respondent was terminated when she discovered same on Revenue’s website. She stated that she did not receive any payment from her Respondent after 31 August 2023 and also alleged that she did not receive any payment in respect of her annual leave.

The Respondent is in liquidation and there was no attendance on their behalf.

CA-00059519-002:

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’s undisputed evidence is that she was entitled to be paid a monthly salary of €1,800 and that she was not paid for the period from 1 September 2023 until 20 October 2023, the date on which she referred her complaint to the WRC. I therefore find that this complaint is well founded.

CA-00059519-003:

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 is seeking payment for annual leave for the period for which she worked for the Respondent from 1 January 2023 to 16 November 2023, the date on which she stated her employment ended according to the Revenue website.

The period to submit a complaint regarding alleged contraventions related to annual leave however is six months from the end of the statutory leave year, which runs from 1 April to 31 March each year. Therefore, the Complainant is entitled to seek compensation for all the annual leave she was not paid by the Respondent from 1 April 2023 to 20 October 2023, the date on which she referred her complaint to the WRC. I cannot consider any alleged non-payment after the complaint was referred to the WRC.

Having considered her uncontradicted evidence, I find that the complaint in respect of non-payment of annual leave is well founded.

CA-00059519-002:

I find that this complaint is well founded for the reasons set out above.

The Complainant was not paid for 7 weeks, namely for the period from 31 August 2023 until 20 October 2023, the date on which she referred her complaint to the WRC. I therefore order that the Respondent makes a payment to her of €2,907.69 (€1,800*12/52*7) in respect of this complaint. This is subject to taxation and the normal statutory deductions.

CA-00059519-003:

This complaint is deemed well-founded for the reasons set out above. I therefore order that the Respondent makes a payment of €1,500 for the unpaid annual leave, which also incorporates a compensation component in accordance with section 27(3) of the Act.