ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050323
Parties:
| Complainant | Respondent |
Parties | Brian McCafferty | Agus Victuals Limited |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | Barry Kenny Kenny Sullivan Solicitors | Director |
Complaints:
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-00061647-001 | 19/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00061647-002 | 19/02/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00061647-003 | 19/02/2024 |
Date of Adjudication Hearing: 28/05/2024
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 the 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.
submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaints:
Two complaints of contraventions 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.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
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.
By way of 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 Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 19th of February 2024 was submitted within the time allowed.
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…
The Complainant herein has further referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
Background:
This matter was 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 was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to 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) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 19th of February 2024. |
Summary of Complainant’s Case:
The Complainant was fully represented. At the outset, the Complainant was happy to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. The Complainant also gave oral evidence which was largely uncontested. The Complainant alleges that when his workplace unexpectedly closed down he was left without wages which he believed he was lawfully entitled to. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this Complainant. The Complainant did not avail of this facility. |
Summary of Respondent’s Case:
The Respondent entity was represented by the Director Mr. K. The Respondent provided me with an oral account of what had happened. The Respondent company had to be closed down unexpectedly when issues arose with the Landlord. The failure of the company was unavoidable in the circumstances. The Respondent accepts the Complainants claims in principle. The Witness said the Respondent company was entering voluntary liquidation in due course. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Findings and Conclusions:
I have carefully listened to the evidence adduced in the course of this hearing. The parties generally agree on the circumstances which have brought the Complainant to bring the within issues before the WRC. The Complainant was headhunted by Mr. K of the Respondent company to come and work with him in a restaurant being launched on the seafront in Bray. The Complainant enthusiastically joined forces with Mr. K and the Restaurant/Catering enterprise in question appeared to have good prospects. The Complainant was engaged as an Executive Chef with a quasi-Managerial role. The Complainant agreed to a basic salary of €60,000.00 per annum which would rise up to €85,000.00 in time. There was an additional Bonus-type arrangement in place which was being drawn from the tipping payments and was guaranteeing the Complainant a further sum of up to €11,000.00 per annum. The Complainant came to work with the Respondent in and around the 21st of April 2023 which gave a one week lead in period to the opening of the restaurant on the 28th of April 2023. Things appeared to go well initially, thought the Complainant was concerned that the terms of the agreement he had reached with the Respondent had not yet been committed to a formal Contract to Employment. Difficulties started to arise as the programme for receiving the tipping monies did not materialise. A certain guaranteed monthly sum was not getting paid and, in fact, the Complainant only received a sum f €700.00 out of a potential of €5,445.00 in the course of his employment. It is an unfortunate fact that the Complainant’s last paycheck was paid on or about the 28th of January 2024 and he was not paid for the next three weeks of work (amounting to 15 days of work). At the end of the three weeks the Complainant was taken aside by Mr. K and told that the business was failing and would be closed down. No notice was given. The Employment was therefore terminated without Notice on the 16th of April. The parties had agreed that a Contractual Notice period of four weeks was to operate in this employment (amounting to 20 days). In addition to the above, the Complainant provided evidence that he was owed two Bank Holidays and six days of annual leave. The Complainant’s weekly wage was €1,153.00 and his daily rate was €230.00. In total, the Complainant was not paid for 43 days (including actual days worked, annual leave, bank holidays and Contractual notice). The non-payment of monies owed amounts to an unlawful deduction contrary to the Act. In addition the Complainant gave evidence that he was owed €4,745.00 in relation to the non-payment of the guaranteed tipping/bonus monies. The Respondent witness conceded this sum was owed. I understand that the complainant did receive a Contract of Employment in and around December of 2023 which he felt did not accurately reflect the agreed terms and conditions which he had agreed with the Respondent in the previous year. The final Contract was never completed as events overtook the workplace which had to close down.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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-00061647-001 - The Complaint herein is well-founded. The Respondent has unlawfully deducted forty three days of pay which were due and owing to the Complainant at the end of his employment. I direct the Employer to pay the sum of €9,890.00. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00061647-002 – The Complainant herein is well founded and the Complainant is owed a sum of €4,745.00 in respect of a bonus scheme guaranteed to the Complainant under the tipping scheme and I direct that sum be paid. Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00061647-003 – The Complainant did not receive (within two months of the commencement of the employee’s employment with the employer) a Statement of certain Terms of the employment. The complaint is well founded and I direct a payment of €100.00 which is just and equitable in all the circumstances.
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Dated: 8th July 2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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