ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00050961

Parties:

	Complainant	Respondent
Parties	Alexandru Savitchi	Metex Construction Limited

	Complainant	Respondent
Anonymised Parties

Representatives

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-00062358-001	23/03/2024

Date of Adjudication Hearing: 18/07/2024

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, the Director General of the WRC may make a referral of said matter to the Adjudication Services.

Following said referral, I can confirm that I was ready to fulfil my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate allowed time to hear the oral evidence of the parties and their witnesses and to take account of any evidence to be 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 does 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.

It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.

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

“Wages”, in relation to an employee , means any sum payable to the employee by the employer in connection with the 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 contact of employment or otherwise, and
(b) Any sum payable to the employee on the termination by the employer of the Contract of Employment without his having given to the employee the appropriate notice of the termination, being a sum paid in lieu of the giving of such notice:

Background:

This hearing was to be conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. 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 23rd of March 2024 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 24th of May 2024 - and emailed to the email address provided by the Complainant on the workplace relations complaint form. The Complainant had specifically agreed to communication by electronic means when filling out his complaint form.

From the Complaint form provided, I have discerned that the Complainant seeks to establish that he was not being paid his correct salary or indeed any salary whilst in the employment of the Respondent company. The Complainant worked for this Employer from the 4th of September 2023 to the 17th of October 2023. This period is covered in the cognizable period covered by the Act.

Summary of Respondent’s Case:

The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 24th of May 2024 - and posted to the address provided by the Complainant herein.

There is no indication either way as to what the Respondent’s position would have been.

Findings and Conclusions:

Neither party attended the hearing. I am satisfied both parties were on notice of the time date and venue. The onus rested with the Complainant to make out a Prima facie case. He did not do this.

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-00062358-001 – The Complaint herein is not well founded in circumstances where the Complainant did not present himself to make his claim.

Dated: 13/08/2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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