ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00051760

Parties:

Complaint:

Date of Adjudication Hearing:  24/06/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 16th May 2024.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This complaint was listed for remote hearing on 24th June 2024.  Both the Complainant and a Director (Director A) of the Respondent were in attendance and were unrepresented.  None of the evidence was in issue and/or required the taking of evidence on oath.  The matter was heard in public and the Parties were made aware that their names would be published.  I have considered all of the evidence and documentation submitted herein.

Background:

The Complainant claimed that he was owed €3,500 wages upon the termination of his employment with the Respondent when it ceased trading.  The Respondent conceded that the amount claimed was due and owing but has been unable to discharge same and is in the process of appointing a Liquidator.  The Complainant sought a decision for the purposes of payment via the Liquidator and/or the Insolvency Payments Scheme operated by the Department of Social Protection.

Summary of the Complainant’s Case:

The Complainant commenced employment with the Respondent as a Sales Representative for its distribution business on 1st March 2023 on a salary of €25,000 gross per annum.  He had been aware that the Respondent had been experiencing financial difficulties but was unaware that it had ceased trading on 31st December 2023 until he was so informed by Director B on 14th January 2024.  He had been attending his workplace as normal and noticed that it had been very quiet.  He had not been paid his wages for December 2023, the first two weeks of January 2024 and a week in lieu of his statutory minimum notice totalling €3,500.  Accordingly, these constituted unlawful deductions from his wages contrary to Section 5 of the Non-Payment of Wages Act 1991.  The Complainant had held off on referral to the WRC as Director A had indicated that that a liquidation process would ensue to facilitate payment of his wages but has not progressed.  The Complainant very reasonably confirmed that he is not seeking any additional compensation beyond his outstanding wages claimed herein.

Summary of Respondent’s Case:

Director A on behalf of the Respondent attended at the hearing and confirmed that unfortunately his distribution business had ran into difficulty and ceased trading from 31st December 2023.  He conceded that the sum of €3,500 in wages remained due and owing to the Complainant but he is not in a position to discharge same.  He confirmed that he was in the process of appointing a Liquidator to wind up the Respondent but this has not been a straightforward process and required funds.

Findings and Conclusions:

The approach to be taken when adjudicating on a claim under the Payment of Wages Act 1991 is set out in Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1R 478.  A decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under Section 5 of the Payment of Wages Act 1991.  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.”  In circumstances where this complaint is uncontested and the Complainant presented as a credible witness, I am satisfied on the balance of probabilities that he is contractually entitled to the sum of €3,500 claimed.  I am further satisfied that the Respondent has not discharged these monies when they became due or to date, constituting a breach of Section 5 of the Payment of Wages Act 1991.

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.  I find this complaint to be well-founded on the aforesaid basis and in accordance with Section 6(1) of the Payment of Wages Act 1991, consider it reasonable in all of the circumstances to direct that the Respondent pays the Complainant compensation in the sum of €3,500 within 42 days hereof.

Dated: 30th July 2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Non-payment of wages under Section 5 of the Payment of Wages Act 1991