Complainant

Respondent

Parties

Bohdan  Svyntsitskyy

MKM 77 Windows Limited

Representatives

Self-Represented

The Respondent did not attend and was not represented at 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-00063727-001

27/05/2024

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

CA-00063727-003 WITHDRAWN

27/05/2024

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

CA-00063727-004 WITHDRAWN

27/05/2024

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

CA-00063727-005

27/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00063727-006

27/05/2024

These matters came before the Workplace Relations Commission dated 27/05/2024.  The Complainant alleges contraventions by the Respondent of provisions of the above listed statutes in relation to his employment with the Respondent.  The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 01/11/2024. 

The Complainant was employed by the Respondent as a construction worker at all material times.    The Respondent is carrying out business in the construction industry.   The Complainant commenced his employment with the Respondent on 01/03/2023.  The employment ended on 19/01/2024. 

Having waited a reasonable period of time on the day of hearing there was no appearance by or on behalf of the Respondent.  I am satisfied the Respondent was notified of the date, time and venue of the hearing by correspondence from the WRC to the registered address of the Respondent as set out in the CRO website by registered post.     

I note a trading status as “normal” on the CRO website as of the date of issue of this decision. 

CA-00063727-001 pursuant to section 6 of the Payment of Wages Act, 1991 (“the 1991 Act”). 

The Complainant submits he was not paid his wages for two weeks in November 2023.  The Complainant submits he was provided with a payslip, but the amount was not paid in to his bank account.  The date of the alleged deduction is 30/11/2023.  The monetary amount of the alleged deduction is €1889.76 

The Complainant submits he tried to contact the Respondent several times in an attempt to get what he was owed and despite not getting paid what he was owed he continued to work for the Respondent for a further two months.   

CA-00063727-005 pursuant to section 7 of the Terms of Employment (Information) Act, 1994 (“the 1994 Act”). 

The Complainant submits when he received his first payslip in August 2023 it indicated his employer was Reservice Supplies Limited.  The Complainant submits he also received some payslips that identified his employer as MKM 77 Windows Limited.  The Complainant submits he was never informed of this change of identity of his employer at any time. 

CA-00063727-006 pursuant to section 8 of the Unfair Dismissals Act, 1977 (“the 1997 Act”). 

The Complainant submits he had to leave his employment due to the conduct of his employer after continuously asking the Respondent to pay him what he was owed and that the Respondent kept promising to pay him but failed to do so.  As a result, the Complainant submits he left and looked for another job. 

The Complainant submits he continuously asked the Respondent to pay his November 2023 salary and that he (the Respondent) kept promising to pay but he did not.  The Complainant submits it was becoming hard for him to survive and support his family without an income.  The Complainant submits that as a result he left and looked for another job. 

CA-00063727-001/5/6

There was no appearance by or on behalf of the Respondent at the hearing.  I note the Respondent has not engaged with the WRC or filed any written submissions or documentation.  In the circumstances no evidence has been proffered on behalf of the Respondent. 

In circumstances where I am satisfied that the Respondent was properly served with notice of the date, time and venue of the adjudication hearing and having waited some time to accommodate a late arrival and where I formally opened and closed the adjudication hearing on the 01/11/2024 I will proceed to set out hereunder my findings and conclusions.

CA-00063727-001 pursuant to section 6 of the Payment of Wages Act, 1991 (“the 1991 Act”). 

This is a complaint pursuant to the Payment of Wages Act, 1991. 

In conducting my investigation and in reaching my decision, I have carefully reviewed all relevant documents provided to me and I have considered the digital evidence shown to me by the Complainant at hearing on his phone.  I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

The matter for me to decide is whether the Respondent has properly paid the Complainant in accordance with section 5 of the 1991 Act. 

The Relevant Law

Section 1 of the Payment of Wages Act, 1991 provides the following definition of wages:

"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, 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, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

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

Regulation of certain deductions made and payments received by employers.

5.—(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.

Section 5(6) of the Payment of Wages Act, 1991 address the circumstances in which wages which are properly payable are not paid:

(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 the case of Marek Balans v. Tesco Ireland Limited [2020] IEHC 55 the High Court made it clear that the WRC, when considering a complaint under the 1991 Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made.  If it is established that a deduction within the meaning of the Act had been made, the WRC would then consider whether that deduction was lawful. 

Therefore, the question to be decided is whether the wages claimed by the Complainant were properly payable. 

The Relevant Facts

I note the Complainant was issued with a payslip by Reservice Supplies Limited for pay period 24 with a pay date of 30/11/2023 in the amount of €1889.76 net.    

The Complainant’s uncontested evidence on affirmation is that he has not received these wages. 

I am satisfied the monies owing are properly payable to the Complainant.  Accordingly, I find this complaint to be well-founded. 

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 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities 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, or tip or gratuity as the case may be (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.

I direct the Respondent to pay to the Complainant the amount of €1889.76 net within 42 days from the date of this decision.

CA-00063727-005 Complaint of a contravention of section 5 of the Terms of Employment (Information) Act, 1994 (“the 1994 Act”) 

The Relevant Law

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

The Relevant Facts

I note Revenue documentation provided by the Complainant shows his employer’s identity as MKM 77 Windows Limited from 01/03/2023 – 01/03/2023.    I note the employer identity commencing 07/08/2023 – 24/11/2023 is documented as Reservice Supplies Limited.  I note the employer identity commencing 27/11/2023 is MKM 77 Windows Limited until such time as employment ceases on 29/01/2024.

I note the Complainant at all material times believed his employer identity to be that of Reservice Supplies Limited and he had not been notified to the contrary.   

Under section 5 of the 1994 Act an employee is entitled to be notified by his employer of a change to his contractual terms no later than the day on which the change takes place. 

I note the details of change of the legal entity of the Respondent was not notified to the Complainant in writing or otherwise. 

For the reasons set out above I find this complaint to be well-founded. 

Accordingly, I order the Respondent to pay to the Complainant compensation in the amount of €1889.76 which I consider just and equitable having regard to all of the circumstances.  This award is by way of compensation for a breach of the Complainant’s statutory right and is not in respect of remuneration including arrears of remuneration. 

CA-00063727-006 pursuant to section 8 of the Unfair Dismissals Act, 1977 (“the 1977 Act”). 

Section 2 of the 1997 Act requires a Complainant to have 12 months’ service in order to pursue a complaint under this Act, except for certain circumstances as laid down in section 6 of the Act.

Section 2 provides as follows:  

“Exclusions.

2.—(1) This Act shall not apply in relation to any of the following persons:

(a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,”

I note the Complainant does not have the requisite statutory 12 months’ service with the Respondent in order to invoke the protection of the 1977 Act.   

Accordingly, I do not have jurisdiction to determine this element of the Complainant’s complaint.  I find this complaint to be not well-founded. 

CA-00063727-001

For the reasons stated above I decide this complaint pursuant to section 6 of the Payment of Wages Act, 1991 is well-founded.  I direct the Respondent to pay to the Complainant in the sum of €1889.76 net within 42 days from the date of this decision.   

CA-00063727-005

For the reasons stated above I decide the complaint of a contravention of the Terms of Employment (Information) Act, 1994 is well-founded and I order the Respondent to pay to the Complainant the sum of €1889.76 in compensation within 42 days from the date of this decision.  This award is by way of compensation for a breach of the Complainant’s statutory right and is not in respect of remuneration including arrears of remuneration. 

 CA-00063727-006

For the reasons stated above I decide this complaint is not well-founded. 

Payslip issued; bank account not credited; name of legal entity of employer changed without notification;