ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046134
Parties:
| Complainant | Respondent |
Parties | Jordan Daly | Dunclann Contracts Limited |
Representatives | Self- represented. | Respondent Director |
Complaint(s):
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-00056981-001 | 02/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00056981-002 | 02/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00056981-003 | 02/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00056981-004 | 02/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00056981-005 | 02/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00056981-006 | 02/06/2023 |
Date of Adjudication Hearing: 03/10/2023
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The hearing proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.
I gave the parties an opportunity to be heard, to present evidence relevant to the complaints and to cross examine witnesses.
The respondent Director attended the hearing and gave evidence under oath.
The complainant represented himself and gave evidence under oath.
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Background:
The complainant presented two complaints under the Payment of Wages Act, 1991, two complaints under the Terms of Employment (Information) Act, 1994, a complaint under the Unfair Dismissals Act, 1977 and a complaint under the Minimum Notice and Terms of Employment Act,1973. The complainant commenced employment as a fitter with the respondent building completion company on 19/102020. His employment ended on 6/3/2023. His gross salary was €924 a week and he worked on average 44 hours per week. He submitted his complaints to the WRC on 2/6/23. |
Summary of Complainant’s Case:
Evidence of the complainant given under oath in respect of the complaints set out hereunder. CA-00056981-001.Complaint under section 6 of the Payment of Wages Act, 1991. The complainant stated that the respondent made an unlawful deduction of €1548 on 6/3/2023 corresponding to two weeks net wages owed to him during the period 20 February to the 6 March. He is paid 2 weeks in arrears and his last salary, paid into his bank account on the 6/3/2023, was in respect of his weekly wage due to him on week ending the 17/2/23. Upon questioning the complainant advised that the respondent did not inform him in advance that he intended to deduct the sum of € 1548 in respect of the two weeks salary. The sum of €1548 includes a holiday entitlement.
CA-00056981-002 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the of the Payment of Wages Act, 1991. The complainant withdrew this complaint as it is a duplicate of CA-00056981-001.
CA-00056981-003. Complaint under section 7 of the Terms of Employment (Information) Act, 1994. The respondent failed to provide the complainant with the terms of his employment contrary to section 3 of the Act of 1994.
CA-00056981-004. Complaint under section 7 of the Terms of Employment (Information) Act, 1994. This complainant withdrew this complaint as it is a duplicate of CA-00056981-003.
CA-00056981-003.Complaint under Section 8 of the Unfair Dismissals Act, 1977 The complainant states that he was unfairly dismissed on 6/3/2023 when he arrived 7 minutes late for work. He had been collecting three colleagues to bring them to work in the company van. They themselves were late and not at the pick-up point at the scheduled time. When he arrived, the respondent asked him for the keys to the van. He did say that he would contact the complainant. The complainant presumed that he had been dismissed. The respondent never expressly stated that he was letting him go but he never told the complainant to come back. The dismissal was unfair as the three co-workers were late at the collection point – their homes-and hence he was late. Mitigation. He took up a position on the 20/3/23 on a weekly gross wage of €750.
CA-00056981-006. Complaint under section 12 of the Minimum Notice and Terms of Employment Act,1973. The respondent failed to pay him his two weeks statutory notice.
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Summary of Respondent’s Case:
Evidence of the respondent Director given under oathin respect of the complaints set out hereunder.
CA-00056981-001 Complaint under section 6 of the Payment of Wages Act, 1991. The respondent states that the last salary paid to the complainant was in respect of week ending the 23 February. The date of the deduction was 10/3/23. The respondent states that he did not pay the complainant his wages of €918 gross in respect of week ending the 2/3/23 nor for the 8 hours on 3 March. He did not work on Monday 6 March as he left work at 7 am. He states that outstanding wages amount to €1108 which corresponds to one week’s wages plus 8 hours worked on Friday 3/3/23. The reason for this non- payment of wages is that the complainant was involved in 2 accidents on 31/1/22 and on 9/11/22 with the company van. As a result, the respondent’s insurance costs went up by €494. Repairs to the van, as a result of the complainant damaging it, cost €741. Furthermore, the complainant used the company card to purchase diesel for his own personal use. The witness had meetings with the complainant between July and November 22, to set out the cost of damage done to the van. He reached an oral agreement with the complainant in November 2022 to recoup the monies owed to him as a result of these two accidents, to be paid on a weekly basis. The complainant did pay the respondent €50 over a period of 5-6 weeks but he walked off the job on 6/3/23 not to return, and no further payments were made. The respondent sent the complainant a WhatsApp message on 10/3/2023 explaining that the complainant owed the respondent €1755 less the €200 which the complainant had paid to the respondent.
CA-00056981-003. Complaint under section 7 of the Terms of Employment (Information) Act, 1994 The respondent denies that he breached section 3 of the Act of 1994. The respondent submitted a copy of a text message sent to the complainant on the 15/10/20 In which he notified the complainant of his working hours, the commencement and finishing times, the hourly rates, the location of the job. When asked, the respondent had nothing to say about the statutory limits for submission of a complaint.
CA-00056981-005.Complaint under Section 8 of the Unfair Dismissals Act, 1977 The respondent denies that he dismissed the complainant. The complainant arrived late for work on 6/3/23. The respondent states that he had had enough. He asked the complainant to give him the keys and the diesel card. He told the complainant to go home and that he would contact him later. The complainant sent him a text on that day to state he would be in for his gear. The respondent had a missed call from him at 11.59. The complainant came in and stated that he wanted access to his locker so as to collect his belongings. The witness asked him why he was going, and the complainant replied you are not going to stop me and that he had two jobs to go to. The respondent submitted a copy of a message sent to the complainant asking the complainant to clarify that he had a job elsewhere. He received no reply. The respondent tried to ring him at 3pm but his phone went to voice mail. He heard no further from the complainant. He did not dismiss the complainant.
CA-00056981-006. Complaint under section 12 of the Minimum Notice and Terms of Employment Act,1973. The respondent states that he did not dismiss the complainant. He walked and failed to give the respondent his notice.
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Findings and Conclusions:
CA-00056981-001. Complaint under section 6 of the Payment of Wages Act, 1991. The question for determination is whether the respondent’s failure to pay the complainant two weeks’ wages on 6/3/2023 was a contravention of section 5(1) of the Act of 1991. Relevant Law. Section 5 (1) of the 1991 Act states “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.” As a first step in establishing the existence or not of an unlawful deduction, the complainant must demonstrate that the sum of is ‘properly payable ‘to him. Section 5 (6) of the Payment of Wages Act, 1991 identifies a deduction as follows: “Where the total amount of 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.” The respondent accepts that he made a deduction, but of €1108, which corresponds to one weeks’ salary, plus eight hours worked on 3/3/23. The respondent did not contest the complainant’s evidence which is that he was paid 2 weeks in arrears. Therefore, the salary paid to the complainant on the 6/3/23, his last salary, was in respect of the week ending Thursday 16 February 2023.The complainant submitted bank account records showing payments made by the respondent, the last salary being paid into his account on the 6/3/23. I find that the respondent withheld the complaint’s wages for a two-week period; this amounts to a gross sum of €1848. The respondent’s reasoning for and method of recouping monies which he states are owed to him and the amount of which is contested must comply with the statutory provisions authorising a deduction. There was no written agreement to repay the money; it was verbal arrangement. He gave no notice of his intention to deduct the money as required. Accepting the respondent’s position that he was at a loss because of damage to a company van due to the complainant’s omissions, and therefore entitled to recoup the costs, he must comply with section 5(2) of the Act of 1991 which provides as follows: “2) An employer shall not make a deduction from the wages of an employee in respect of— (a) any act or omission of the employee, or (b)n/a unless— (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and (iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with— (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof, (II) in any other case, notice in writing of the existence and effect of the term, and (iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction,”. Application of the Law to the facts of this complaint. I find that the respondent failed to recoup the monies in accordance with the statutory provisions as set out at section 5(2) of above. I find that the deduction is an unlawful deduction. I find that the complaint is well founded. I find that the respondent must pay the complainant two weeks’ wages amounting to the gross sum of €1848 subject to all lawful deductions. CA-00056981-003. Complaint under section 7 of the Terms of Employment (Information) Act, 1994. Time limits for submission of a complaint. The limitation period set out in at section 41(6) of the Workplace Relations Act, 2015 provides as follows: “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Section 41 (8) addresses the discretionary power of adjudicators to extend time. It states: “(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” The contravention subsisted until 18/6/20201. The complainant lodged his complaint with the WRC on 2/6/23. In accordance with section 41(6) of the Act of 2015, I find that I do not have jurisdiction to hear this complaint. CA-00056981-005.Complaint under Section 8 of the Unfair Dismissals Act, 1977 The evidence indicates that the complainant left his employment after a conflict with the respondent. This is not a complaint of constructive dismissal. The evidence fails to indicate that the respondent dismissed him. I do not find this complaint to be well founded.
CA-00056981-006. Complaint under section 12 of the Minimum Notice and Terms of Employment Act,1973. I have found that the complainant was not dismissed but left his employment without giving the respondent due notice. I do not find this complaint to be well founded. |
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.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00056981-001. Complaint under section 6 of the Payment of Wages Act, 1991. I find this complaint to be well founded. I decide that the respondent is to pay the complainant the sumof€1848 subject to all lawful deductions. CA-00056981-002. Complaint under section 6 of the of the Payment of Wages Act, 1991. The complainant withdrew this complaint. CA-00056981-003. Complaint under section 7 of the Terms of Employment (Information) Act, 1994 I do not have jurisdiction to hear this complaint. CA-00056981-004. Complaint under section 7 of the Terms of Employment (Information) Act, 1994. The complainant withdrew this complaint. CA-00056981-005.Complaint under Section 8 of the Unfair Dismissals Act, 1977 I do not find this complaint to be well founded. CA-00056981-006. Complaint under section 12 of the Minimum Notice and Terms of Employment Act,1973. I do not find this complaint to be well founded.
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Dated: 11th March 2024
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Unlawful deduction of wages. |