ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045080

Parties:

	Complainant	Respondent
Parties	Zhiheng Qian	Altada Technology Solutions Limited (in Receivership)

Representatives

Complaint:

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-00055908-001	04/04/2023

Date of Adjudication Hearing: 26/02/2024

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 a referral by the said Director General of this matter to the Adjudication services, I can confirm that I was prepared to fulfil my obligation to make all relevant inquiries into the complaint. This would include hearing the oral evidence of the parties and their witnesses and to take into account any evidence tendered during the course of the hearing.

The Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015.

In particular, the Complainant herein has referred the following complaint:

A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991. This 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.

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 the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause. A preliminary look at the papers herein suggests that a timing issue might arise in circumstances where the Workplace relations complaint form issued in April of 2023, and the complaints relate to a period from July to September 2022.

Background:

This hearing was to be conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with 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) the hearing was to be conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

Had evidence been given it would have been in compliance with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came intoeffecton the 29th of July 2021, and which said legislation accommodates situations where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint. In such circumstances, an oath or an affirmation may be required to be administered to any person giving evidence before me. It is noted that the giving of false statements or evidence is an offence.

The Complaint herein was brought to the attention of the WRC on the 4th of April 2023 by way of a workplace relations complaint form.

Summary of Complainant’s Case:

The Complainant did not attend. I am satisfied that the Complainant was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 11th of January 2024 - and emailed to the email address provided by the Complainant on the workplace relations complaint form. The Complainant had specifically agreed to communication by electronic means when filling out his complaint form.

From the Complaint form provided, I have discerned that the Complainant seeks to establish that his wages were unlawfully deducted between July and September 2022. The employment herein appears to have ended in and around October of 2022.

Summary of Respondent’s Case:

The Respondent did not attend. I am satisfied that the Respondent was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 11th of January 2024 - and posted to the offices of the the Receiver previously appointed to the Respondent Company. The Receiver has failed to communicate with the WRC.

Findings and Conclusions:

Neither party attended. I heard no evidence.

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.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055908-001 - Neither party attended. The complaint herein is deemed to be not well founded and I can give no further direction.

Dated: 11th March 2024.

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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