Complainant

Respondent

Parties

Aureliana  Dos Santos Albuquerque

Emerald Venture Capital Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

 No Appearance

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-00065668-001

28/08/2024

The Complainant worked for the Respondent as a Deli Assistant from the 23rd January 2024 until the 26th May 2024. She earned €12.70 per hour. The Respondent’s business ceased trading and the Complainant did not receive the wages set out on her pay slip for the weeks ending the 12th May 2024 and the 19th May 2024 or her notice pay. The complaint was submitted to the WRC on the 28th August 2024.

The Complainant stated in evidence that she was employed as a Deli Assistant from the 23rd January 2024 to the 26th May 2024. She earned €12.70 per hour.

On the 19th May 2024 the Complainant was informed by her manager that the store where she worked was closing and her manager did not know if or when it would re-open.   

The Complainant received a payslip for the “Week Ending 12 May 2024 which stated that her net wages of €438.02 would be paid by Credit transfer on the 17th May 2024. Subsequently she received a payslip for the “Week Ending 19 May 2024” which stated that her net wages of €1,234.90 would be paid by Credit transfer on the 24th May 2024. The Complainant confirmed that the pay slips reflected the hours worked by her and the wages owed to her, which comprised pay and holiday pay, but that her wages were not paid to her. 

The Complainant stated that she was not paid one weeks’ notice pay.

The Complainant confirmed that the wages set out on her pay slips for the “Week Ending 12 May 2024” and the “Week Ending 19 May 2024” and her one weeks’ notice pay remained outstanding as at the date of the hearing.

By email dated the 21st August 2024 the Respondent’s Director Brian Lee informed the WRC that the Respondent ceased trading in mid-June 2024.

By email dated the 18th September 2024 Mr. Lee confirmed that Charleston Venture Capital Limited had changed its name to Emerald Venture Capital Limited and that the Respondent was seeking the appointment of a liquidator and that the Complainant, along with the Respondent’s other employees, would be taken care in the liquidation process. 

The Respondent did not attend the scheduled hearing of this complaint. Having carefully reviewed the file I am satisfied that the Respondent was on notice of the claim against it and the hearing date, time and venue. I waited a reasonable time before proceeding with the hearing in the absence of the Respondent.

In making these findings, I have considered the documentation submitted by the parties and the oral evidence adduced at the hearings summarised above.

The complaint referred to the WRC is that the Respondent unlawfully deducted wages due to the Complainant set out on her payslips for the “Week Ending 12 May 2024” and the “Week Ending 19 May 2024” and one weeks’ notice pay. The complaint was submitted to the WRC on the 28th August 2024.  

Relevant Law:

Payment of Wages Act 1991

The Payment of Wages Act 1991 (hereinafter referred to as “the 1991 Act”) provides the following definition of “wages” at section 1:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.

Sections 5(1) and 5(6) of the 1991 Act 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.

(2) …

(3) …

(4) …

(5) …

(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 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 non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer.  The question to be decided is whether the wages claimed were properly payable.

The Complainant gave evidence that she commenced employment with the Respondent on the 23rd January 2024 and that she earned €12.70 per hour. On the 19th May 2024 the Complainant was informed by her manager that the store where she worked was closing and that it was not known when or if it would be reopening. Since that date she has not been contacted for any shifts.  

The Complainant was issued with a pay slip for the “Week ending 12 May 2024” which stated that her wages would be paid by Credit transfer on the 17th May 2024. Subsequently, she was issued with a pay slip for the “Week Ending 19 May 2024” which stated that her wages would be paid to her by Credit transfer on the 24th May 2024 however she was not paid her wages. She was also not paid her one weeks’ notice pay.  

By emailed dated the 21st August 2024 the Respondent’s Director Brian Lee informed the WRC  that the Respondent ceased trading in mid-June 2024.

The Complainant was a credible witness, providing additional detail as required by the Adjudication Officer and supporting her contentions with documentation where possible.  I am satisfied that the Complainant was not paid the wages that were properly payable to her. The Complainant was not paid the wages set out on her pay slips for the weeks ending the 12 May 2024 (€438.02 net) and 19 May 2024 (€1,234.90 net) or her one weeks’ notice pay (€438.02 net). I am satisfied that the Complainant has established her claim to the total net wages of €2,110.94 under the Payment of Wages Act 1991. I find that the Respondent deducted this amount unlawfully and that the Complainant is entitled to payment of compensation of €2,110.94 net. I consider this to be reasonable in the circumstances.

Having regard to the written and oral evidence in relation to this complaint, my decision is that the complaint is well founded, and I direct the Respondent pay the Complainant compensation of €2,110.94 net.