Complainant

Respondent

Parties

Talita  Di Cavallotti

Emex Software Limited

Representatives

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-00053143-001

06/10/2022

The Complainant submitted a complaint under the Payment of Wages Act on the 6th of October 2022. She had left the Respondent’s employment but alleged they had failed to pay her final salary and accrued leave.

A hearing was held to consider the matter. The Complainant attended and gave evidence under affirmation.

The Respondent did not attend. On the morning of the hearing I checked the WRC file and note that the notification letter went to an address which is still listed as the trading address on the Respondent’s website.

I attempted to call the Respondent’s Director Simon Kelly. The call went unanswered.

I waited 30 minutes and then opened the hearing.

I then waited a number of weeks to allow for further correspondence to arrive from the Respondent before drafting this decision. No reason for their non-attendance has been submitted, nor have they made any request for the matter to be relisted.

The Complainant gave evidence under affirmation.

She explained that the Respondent’s owner and director had started to focus on a different enterprise. The decided to resign her post and provided a copy of her amicably worded resignation statement.

She revied a payslip and letter outlining her final payment owing which between leave and salary comes to €3466 gross.

This was never paid to her. She repeatedly tried to contact the Respondent looking for payment. When they stopped engaging she referred the matter to the WRC. She only wants her outstanding pay and is not seeking anything else.

The Complainant alleges that non-payment of wages had become and issue with the Respondent company. She referred to a number of staff who had not received pay in the Irish office and as well as a much larger team based in Ukraine who had not been paid their salaries.  

The Respondent did not attend the hearing.

I am satisfied that the Respondent was on notice of the hearing and chose not to attend.

While the Complainant claims went unchallenged by the Respondent I asked her a number of questions at the hearing. I find her oral evidence credible and I am satisfied that she has not received her final months salary and accrued annual leave.

The Payment of Wages Act at Section 5 (1) provides as follows:

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 Act provides:

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 there from 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.

Having reviewed the evidence before me and the above legislation I am satisfied that the failure to pay the Complainant her final salary and accrued leave constituted an unlawful deduction.

For the reasons outlined above, I find that the complaint is well founded, and I order the Respondent to pay the Complainant €3466.