Complainant

Respondent

Parties

Georgina O'Neill

Phibsboro Cat Rescue. t/a The Purr

Complainant

Respondent

Anonymised Parties

Representatives

  Self

 Did not attend

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-00058058-002

02/08/2023

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

CA-00058058-003

02/08/2023

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

CA-00058058-006

02/08/2023

The Complainant commenced employment with the Respondent on 06/07/2023 and was paid €13.00 per hour and was expected to work up to 40 hours per week.  The Complainant notified the Respondent of her hours in advance.  The Complainant was paid for her first week, and as she was on annual leave for the second week no payment was due.  The Complainant did not receive any payment for her third week as an issue arose with the Respondent and the employment ended on 06/07/2023.  The Complainant is seeking to have those wages and her holiday pay paid.  The Complainant also did not receive any written terms of employment.

The Complainant submitted that she knew the Respondent from a previous business and when she opened this charity, she get in touch with her and offered to help.  Following a meeting with  Ms Katy Falkingham, founder of the charity  she was asked by Ms Falkingham to complete the Respondent’s “Employee Details” form which she did.  The Respondent by e mail dated 26/6/2023 indicated that she wished to “work out a rolling contract or whatever…”.  The Complainant outlined at the hearing that at this meeting her working hours, terms and role were agreed.  She was provided with an entrance fob by the Respondent and was also asked to undertake the work of another employee when they were unavailable.

The Complainant outlined that at the end of the first week she was paid €416.00, and this was not correct as the Respondent had deducted pay for 6 hours. Leaving a shortfall of €78.00.  The Complainant was on leave during the second week, and she was not paid for the third week.  The Complainant outlined that she worked 3.5 days (27.5 hours) in that week leaving a shortfall of €357.50.

The Complainant submitted that her hours were agreed in advance with Ms Falkingham and she was never required to submit an invoice for the hours she worked until the Respondent was informed of her referral to the WRC.

The Complainant also outlined that when the employment ceased, she was due holiday pay amounting to €68.12 and she never  received this.

The Complainant provided copies of the text and e mail exchanges with the Respondent.  The Complainant disputes the Respondent’s view that she was never an employee, and this only emerged after the WRC complaints were submitted.  The Respondent stated in these exchanges that she was deducted pay for the period of time she had a conversation with Ms Falkingham at work but not specifically related to work.

The Complainant provided copies of the ongoing requests for payment which continued to be ignored.

The Complainant also outlined that the Respondent never provided her with pay slips or any written confirmation in relation to her terms of employment.

The Complainant told the hearing that she just wants to be paid.  The Complainant believes that Ms Falkingham may have closed that charity but she continues to operate another animal charity in Wicklow.

The Respondent is a cat rescue charity which was founded by Ms Kathy Falkingham and traded as the Purr.  The Respondent did not attend the hearing or request a postponement.

I note that the Complainant also sent a text message to the Respondent after the hearing time and no response was received.

I am satisfied that the Respondent was properly notified of the date, time and venue of the hearing.  I note that she was familiar with the WRC’s postponement process and had utilised this on a previous occasion.

No submission was received on behalf of the Respondent.

As there was no appearance by or on behalf of the Respondent at the hearing to or give evidence in relation to these complaints I waited for a period of time and then conducted the hearing. 

By way of a preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Complainant by the Respondent in connection with the employment.

I find that the Complainant’s Workplace Relations Complaint Form dated 02/08/2023 was submitted within the time allowed.

Section 5 of the Payment of Wages Act 1991 provides as follows:

“(1) 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.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Finnegan J. considered Section 5 of the Act as follows:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion. Central to the court's analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation”.

What Amount is Properly Payable?

The Act provides that where the total amount of wages properly payable to an employee is not paid, any deficiency is regarded as a deduction. Consequently, to ground a claim under the Payment of Wages Act 1991 an Adjudication Officer needs in the first instance to ascertain what wages are properly payable. The starting point for assessing what is properly payable is the contract of employment. As there are no written details of the terms of employment, I have reviewed the various e mails exchanged between the Complainant and the Respondent.  The Respondent acknowledges that a deduction was made and also confirms that payment was withheld for the third week of the Complainant’s employment.

Was there a shortfall in payment?

Section 5(1) of the Act prohibits an employer from making deductions to an employee's wages except in accordance with the provisions of that section. 

At the hearing it was confirmed that the Complainant’s gross pay was €13.00 per hour, and I find that the complaints (CA-00058058-002 and CA-000585058-003) are well founded, and the Complainant is due the following sums: 

Week 1: €78.00,

Week 3: €357.50 and holiday pay: €68.12. 

The total amount due is: €503.62.

CA-00058058-006:

This is a complaint pursuant to the Terms of Employment (Information) Act, 1994.   The Complainant submits that she did not receive a document which complies with Section 3 of the Act.  Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’ s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’ s employment, that is to say: 

(a) the full names of the employer and the employee; 

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014); 

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; 

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000; 

(e) the number of hours which the employer reasonably expects the employee to work — 

(i) per normal working day, and 

(ii) per normal working week.

Section 3 of the Terms of Employment (Information) Act 1994 provides for further details to be given to an employee not later than one month after the commencement of the employee’s employment.

In order to qualify for redress under the Terms of Employment (information) Act, 1994 an employee is obliged, on the date of termination of employment, to have worked for the same employer for one month.  As the Complainant in this case does not meet that standard I do not have jurisdiction to hear this complaint.

CA-00058058-002: Based on the uncontested evidence  I find that this complaint is well founded, and I order the Respondent to pay the Complainant the sum of €78.00.  This amount to be paid within 42 days of the date of this decision.

CA-00058058-003: Based on the uncontested evidence  I find that this complaint is well founded, and I order the Respondent to pay the Complainant the sum of €357.50 in wages outstanding and €68.12 in holiday pay outstanding.  These amounts to be paid within 42 days of the date of this decision.

For the avoidance of doubt the total amount due to the Complainant is €503.62 and I order that this amount is paid to the Complainant within 42 days of the date of this decision.

CA-00058058-006: As the Complainant does not meet the standard of one month’s continuous service with the Respondent, I do not have jurisdiction to hear this complaint.

Payment of wages. Deduction from wages.