Complainant

Respondent

Parties

Ms Patricia Clarke

Dehac Retail Ltd T/A Costcutter Rathfarnham

Representatives

Self-Represented

Self-Represented

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-00063400-001

10/05/2024

CA-000634-001

These matters came before the Workplace Relations Commission dated 10/05/2024.  The Complainant alleges contraventions by the Respondent of provisions of the above listed statute in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 28/06/2024. 

The Respondent is a convenience store.  The Complainant works a 35-hour week in sales for which she is paid €653.62 gross weekly.

The Complainant submits on her WRC complaint form that her wages have been reduced without her consent.

The Respondent submits the Complainant is paid for the hours she works. 

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The Complainant states her hours were 6am – 2pm and she is now rostered 7am – 3pm.  The Complainant submits she does now want to work until 3pm so she works from 7am – 2pm and she is not prepared to work the rostered hours.  The Complainant submits that her question is as she is on a salary can it (her salary) be reduced by 5 hours. 

The Complainant on her WRC complaint form submits the date upon which she should have received the payment was 12/01/2024.  The Complainant now submits she had intended to insert the date of 18/01/2024.  In the narrative of her complaint form the Complainant states her wages have been reduced without her consent and she is unsure of the exact amount, and she asserts her wages are changing every week. 

The Complainant submits she returned to work on Monday 6th January 2024 after sick leave to find her hours had been changed without her consent and that her pay was changed also without her consent due to the reduction in hours. 

The Complainant states she assumed she would be paid the same even though she works less hours because she is on a salary.

The Complainant accepts it is within the remit of the Respondent to change the trading hours in line with business needs. 

However, the Complainant asserts she wants to work from 6am - 2pm and that she wants to work those hours regardless of the shop opening hours.  The Complainant submits she currently works from 7am – 2pm under protest and her claim is that she should be paid as if she works from 7am – 3pm.   

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The Respondent submits the trading hours changed due to the changing needs of the business and that the roster changed accordingly.  The Respondent submits he ensured the Complainant would not be rostered for less than her 40 hours to protect her earnings, but she refused to work until 3pm and is now working for an hour less every day and her wages reflect this. 

The Respondent submits the Complainant was notified by group chat on What’s App on 22nd December 2023 that the shop trading hours were going to change, and the staff hours would change as a consequence.     

CA-00063400-001

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.  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 Payment of Wages Act, 1991. 

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 if that deduction was lawful.      

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

It is for the Complainant to make out that the wages payable to her during the period encompassed by the claim are properly payable to her under the 1991 Act.   

The Relevant Facts

I note the Complainant accepts she works five hours less per week but she asserts that because she is “on a salary” her salary cannot be reduced. 

I note the Respondent submits the wages claimed are not properly payable as the Complainant works for five hours less than her contracted hours every week and she is paid for the hours she actually works. 

It is common case the Complainant works five hours less per week than she had worked, by choice, as she does not want to work until 3pm in line with her working pattern which is now 7am to 3pm.    I note the case of Fuller v. Minister for Agriculture [2008] IEHC 95 in holding that “once an employeeis unavailable for work they are not entitled to be paid…,” [emphasis added]Gilligan J quoted with approval the following passage from Dean v. Wilson [1909] 2 IR 404 at 409:

“There was no contract to pay unless it was earned.  If she had not worked at all during the week, though the contract for service remained, she would not have been entitled to any payment; and could it be said that when, being entitled to nothing, she was paid nothing, the non-payment was an offence under the Act?  Further, even if this non-payment of the 2s. which she did not earn could be possibly held to be a deduction from the sum contracted to pay her, it could not, in my opinion, be held to be a deduction for, or in respect of a fine.  The non-payment took nothing from her to which, in any view, she had become entitled, or to which, when the week ended, she could have ever become entitled.  It was simply withholding payment of what she had not earned and never could earn.”

I note also the following from the determination of the Labour Court in the case of A Worker v. A Retail Company [PWD2024] where the Court referred to the observations of White J in John Lawe v. Irish Country (Pig Meats) Ltd [1998 9 ELR 266] as follows:

“An employer’s fundamental obligation is to pay the agreed remuneration for the time of work during which the employee is prepared to work.” 

Having regard to the legal authorities cited above I am satisfied that in order for an unlawful deduction of wages under the 1991 Act there needs to be an entitlement to the wage in the first instance.  I am not satisfied the Complainant has discharged this onus of proof. 

I note the Complainant remains firm in her conviction that her “hours” have changed albeit it was clarified at hearing that it is her working pattern/roster that has changed as by her own choice she has reduced her working hours and this is reflected accordingly on a pro-rata basis in her salary. 

I am satisfied the Complainant’s contractual hours remain available to her should she wish to work them.  The Complainant works from 6am – 2pm and she has been provided with working hours of 7am – 3pm which is the same number of hours namely 40 hours per week.  The Complainant works 35 hours per week. 

Under the Payment of Wages Act, 1991 an employee is entitled to be paid, in accordance with their contract, for any hours worked.  In a claim pursuant to the Payment of Wages Act, 1991, the Complainant must first show the monies were “properly payable” to her under the Act. 

The Complainant in the within case is claiming payment for hours she does not work.  I am unable to find the claim for a payment for hours not worked constitutes am amount “properly payable” to the Complainant.

Accordingly, I decide there has not been an unlawful deduction from the Complainant’s wages as alleged.    

CA-00063400-001

For the reasons stated above I decide this complaint pursuant to the Payment of Wages Act, 1991 is not well-founded. 

Contractual hours available; hours actually worked;