Complainant

Respondent

Parties

Yantnarys Gonzalez Martinez

Caspian B.M.P Ltd Caremark

Complainant

Respondent

Anonymised Parties

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Representatives

Michael Kinsley BL instructed by  J.O.S Solicitors

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-00054040-001

07/12/2022

The complainant attended the hearing on 31/08/2023 and did not attend the hearing on 16/02/2024.  The complainant submits that there are monies owed.

The complainant submitted on her complaint form that €5,307.75 is owed to her and that she did not get a payslip and was not registered with Revenue and that she had to leave a house with one hours’ notice.  The complainant on the first day gave some evidence that she worked and was not paid.  An adjournment was granted to allow the complainant to make further submissions and when the hearing reconvened on 16/02/2024 the complainant did not attend.

The respondent denied the complaint and in their submission confirmed the complainant commenced employment 13/09/2023 and on 26/09/2023, the complainant informed the Respondent that she had caused damage to the bumper of the vehicle and informed them of another accident on 17/10/2023 with the company’s vehicle.  On 03/10/2023 the complainant advised that she was happy working.  There were delays with the complainant setting up a bank account and the complainant secured a cash advance.  A PPS number was received on 07/11/2023 but no Irish bank details was received from the complainant.  The complainant requested more working hours and was advised that the respondent could not exceed an average of 48 hours over a 4-month period and were unable to meet her request.  On 16/10/2023 the complainant advised that she was sick and unable to work.  On 9/11/2023, the complainant resigned her position and thanked the Respondent for her time there.  On termination, the complainant owed the respondent for damages and expenses and the respondent made attempts to arrange an exit interview with her to discuss the proposed deductions and tax issues.  The complainant received all of her lawful entitlements and only lawful deductions were made pursuant to the contract between the parties. The total amount of €1,083.63 was less than the amount due €1,245.12 and was deducted as per contractual terms.

It was submitted that the deductions made by the Respondent herein were made in compliance with the terms of the contract of employment and in compliance with the requirements of Section 5 of the 1991 Act. The Respondent made deductions in respect of matters set out in clause 8 of the contract of employment. It is submitted that the said deductions are expressly permitted by Section 5(1) and the Respondent Company complied with all of its legal and contractual obligations towards the complainant.

The complainant’s submission and her partly heard evidence on the first date of the hearing was that she worked and was not paid.  The respondent denied her claims.  There was no cross examination of this evidence as the hearing was adjourned to allow for further documentation to be exchanged.  There was no evidence from witnesses of the respondent on the first day of the hearing and it was expected that the respondent’s witnesses would give evidence at the second day of the hearing.

A second hearing was scheduled for 16/02/2024 at 09:00 and the complainant did not attend.  On 16/02/2024 at 6:12pm the complainant advised the WRC by email that “this morning we had an appointment for my case …after waiting all these hours no one showed up”.  The WRC advised the complainant on 22/02/2024 that the hearing had been scheduled for face to face as advised to her by letter dated 16/01/2024 at 12:46 pm and that parties were in attendance.  No further communication was received by the complainant.

A complaint was received by the Director General of the Workplace Relations Commission from the complainant on 07/12/22 alleging contravention of the Acts.  The said complaint was referred to me for investigation.  A hearing for that purpose was held on 31/08/2023 remotely and the complainant attended.  A face-to-face hearing was scheduled for 16/02/2024 and the complainant did not attend.  The respondent did attend.  I am satisfied that the said complainant was informed in writing of the date, time and place at which the hearing to investigate the complaint would be held and did not attend.

In reaching my conclusion I have carefully evaluated the evidence adduced and taken account of submissions made.  The complainant submits that she was owed monies but did not attend the second date of the hearing to advance her complaint and have her evidence examined. 

Section 5 provides

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.

The complainant did not attend the second date of the hearing to advance her complaint that monies were properly payable to her and I am satisfied that she was on notice of the hearing. 

In the circumstances, I find that the complaint is not well founded and I dismiss the complaint.

I find that the complaint is not well founded, and I dismiss the complaint.

Complainant did not attend, payment of wages