Complainant

Respondent

Parties

Bryn Samuel

Riverside Spa Limited

Representatives

Kenny Sullivan Solicitors

 Self

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060512-001

13/12/2023

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

CA-00060512-002

13/12/2023

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

CA-00060512-003

13/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060512-004

13/12/2023

The Complainant commenced working for the Respondent on the 15 June 2023. The employment relationship ended on the 1 December 2023. The Complainant was hired as a sales executive and received a gross weekly pay of €923.

His role was to sell beauty machines to independent salons and clinics.

CA-00060512-001

The Complainant's case was that he did not receive a statement in writing of his terms of employment.

He was interviewed in person by one of the Respondent directors. Certain terms were advised to verbally such as his gross salary, role, notice period.

Despite being promised that he would receive his terms of employment in writing, he received no information in writing in compliance with the Terms of Employment (Information) Act 1994.

CA-00060512-002

This complaint related to an unlawful deduction from his wages. The Complainant valued this deduction at €150. The explanation for the deduction was that he did not return a tablet that was provided to him by the Respondent at the end of his employment.

The Complainant explained that he never use the tablet. He said it didn't work that well. It was slow and not a good model. He described it as cheap.

He is sought to locate the tablet at the end of his employment but he could not locate it and could only state that it was mislaid.

He was given an ultimatum by text that unless he agreed to the deduction he would not receive his final payment. He stated that he had no choice but to do so to receive his final payment.

CA-00060512-003

This complaint related to an unlawful deduction from the Complainant's wages in relation to the non-payment of his notice which he claimed to amount to €3,692.

The Complainant's case was when he was interviewed for the job, he was told that the notice period was one month.

When his employment ended, he was told he would be paid in lieu of notice.

It appeared from his final payslip that he was only paid 3 days’ notice.

CA-00060512-004

This complaint under the Organisation of Working Time Act 1997 related to their non-payment of holidays/annual leave entitlement. The Complainant's case was that he was due three days holidays.

CA-00060512-001

The Respondent accepted that due to an administrative oversight, the terms and conditions of employment were never furnished to the Complainant.

CA-00060512-002

The Respondent accepted that the sum of €150 was deducted from the Complainant's final salary as company property provided to the Complainant (namely an iPad) was not returned to the Respondent at the end of the Complainant's employment.

The Respondent submitted that the Complainant agreed to deduct a payment of €150 from his salary as he could not locate the iPad and return it to the Respondent.

CA-00060512-003

The Respondent denied that agreement was made that the notice period would be one months. It submitted that the notice period was in line with statutory requirements namely one week.

The Complainant was paid his one week notice and payslips provided to the Complainant to confirm same.

CA-00060512-004

The Respondent submitted an Excel sheet setting out that the claimants annual leave entitlement for the entirety of the employment was 9.28 days. It set out that the Complainant took holidays in week 34 and he was paid for a week 49 in lieu of notice.

I was provided with a payslip for week 34 which showed that €661.36 holiday pay was paid that week and also a payslip for week 49 where €738.40 holiday pay was paid for that week.

CA-00060512-001

The purpose of this legislation is for the information set out in the Act to be in writing and accessible in the event of a dispute. There are two separate requirements, the information required by section 3(1A) is to be given not later than five days after the commencement of employment. The remaining information set out in Section 3 must be given not later than one month after the date of commencement of employment.

It is clear from the evidence that had the required information being provided to the Complainant in accordance with the legislation, a lot of the issues in dispute would not have arisen.

CA-00060512-002

Section 5 of the Payment of Wages Act 1991 sets out

5. Regulation of certain deductions made and payments received by employers

(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.

(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) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, 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

It was accepted by the Complainant that the deduction of €150 was proposed in writing and made to his final payment salary with his consent.

I have considered whether the deduction was fair and reasonable and taking into account the overall evidence presented to me including the ending of the Complainant's employment so soon after it started, I don't accept that the deduction was fair and reasonable.

CA-00060512-003

As there was no evidence of an agreement to pay the Complainant one-month wages as notice of termination, taking into account the evidence of both sides in particular the explanation of the cost to the Respondent that this agreement (if made) would have amounted to, I prefer the evidence of the Respondent.

CA-00060512-004

Under section 25 of the Organisation of Working Time Act 1997 an employer is required to keep records show compliance with the Act.

It was difficult for me to establish from the information provided to me whether the Complainant had received his entitlements under this legislation or not.

I was advised that the Complainant was paid annual leave of €661.36 in week 34. This did not equate to a round number of days. The information provided to me regarding week 49 was that the Complainant was paid four days holidays in lieu of notice. Payment in lieu of notice is a separate payment to holiday pay.

On that basis I prefer the evidence of the Complainant and his calculation that he was due three days annual leave. 

CA-00060512-001

This complaint is well founded. I award the Complainant four weeks gross pay as compensation. This amounts to €3,692.

CA-00060512-002

This complaint is well founded. I award the Complainant €150.

CA-00060512-003

This complaint is not well founded.

CA-00060512-004

This complaint is well founded. I award the Complainant compensation of €553.80.