PWD2456

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046547 (CA-00057465-004)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991. The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015.

The following is the Court's Decision.

DECISION:

This is an appeal by Jinxiu Zheng of a Decision of an Adjudication Officer (ADJ-00046547, CA-00057465-004, dated 18 December 2023) made under the Payment of Wages Act 1991 (“the Act”) against his former employer Ming Feng Limited. The Adjudication Officer upheld his complaint under the Act and ordered Ming Feng Limited to pay Jinxiu Zheng the sum of €250.

Jinxiu Zheng appealed that decision to the Labour Court on 26 January 2024. In this Determination the parties are referred to as they were at first instance. Hence, Jinxiu Zheng is referred to as “the Complainant” and Ming Feng Limited as “the Respondent”.  This appeal is linked to Decision No. PWD2457.

The hearing

Both parties attended a hearing of the appeal on 27 March 2024. That hearing could not proceed when it became apparent that the Court appointed Interpreter was unable to interpret the proceedings. A subsequent hearing date of 4 July 2024 was postponed following an application from the Respondent’s legal representative, who came on record in May 2024. A third hearing date was scheduled for 6 September 2024. By email dated on 5 September 2024 at 5.04pm, the Respondent’s legal representatives advised the Court that they no longer acted for the Respondent and understood that another firm had been instructed.

The Respondent did not respond to efforts made by the Court to contact it before the hearing started, using the contact details provided.  The Court Secretary subsequently received a text from Mr Yuming Zheng of the Respondent company as follows: ‘Hi ， this is ming, the ex-employee has caused me too much problems, I am so stressed and depressed, I could not continue to run the shop, the company has ceased trading from Jun.  I do know if still to meet you, . If you think you still want to meet me ， we could arrange to meet in a coffee shop as I am not the owner of the restaurant anymore. Thanks. (sic)”.

Having considered the matter, the Court decided that sufficient cause had not been shown to justify adjourning the case. In making that decision, the Court had regard to the fact that both parties had lodged submissions to the Court, the Respondent had attended the initial hearing scheduled on 27 March 2024, this was the third occasion that a hearing was scheduled, the Respondent was on notice of the hearing, no application to postpone the hearing was made to the Court and the Complainant was present at the hearing with his representative to progress his appeal. 

Having regard to the above, the Court was satisfied that, in all the circumstances, a further delay would be contrary to the parties’ right to have a fair and expeditious hearing of the appeal determined within a reasonable timeframe. The Court decided that justice would not be served by postponing the hearing further. The Complainant was assisted at the hearing by an Interpreter.

Background

The Complainant is a 48-year-old Chinese national. He moved to Ireland from a village in the Fujin Province in China in July 2022 to commence employment with the Respondent as a Sous-Chef. The Respondent applied for an employment permit and visa on behalf of the Complainant. He was employed from 31 July 2022 until 15 January 2023. The Complainant does not speak English.

Preliminary Matter –Application for extension of the cognisable time period for the complaint

The Complainant’s representative confirmed that an application to extend time was made at the WRC Hearing, although that application is not recorded in the Adjudication Officer’s decision.

The Complainant requests that the cognisable period for the complaint be extended to include his entire employment period from 31 July 2022 to 15 January 2023. The complaint was lodged to the Workplace Relations on 3 July 2023.

The application is made on the basis that the Complainant was an especially vulnerable person as a suspected victim of trafficking for labour exploitation. He did not speak English and was dependent on the Respondent for his accommodation, income and immigration status. The Respondent threatened to revoke his work permit if he did not pay a recruitment fee. The Complainant was fearful that he would be “deported” and, as a Chinese national, inherently feared the police and prison.

The Complainant was confirmed as a suspected victim of human trafficking, after engaging with the MRCI and An Garda Síochána on 24 February 2023. MRCI does not employ legal personnel and is dependent on limited pro bona hours from solicitor firms. The Complainant was subject to harassment and abuse by the Respondent, which took an emotional toll on him leading to memory and organisational difficulties. Due to interpretation issues and extensive document gathering process, it took three months to facilitate a formal complaint to the WRC. These circumstances explain the delay and afford a reasonable cause for the delay in lodging a complaint to the WRC.

The Complainant relies on the decisions in Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0338, Patricia Lizbeth Oropeza Vedia v Juliet O’Connell Limited ADJ-00044487, and Sharanjeet Kaur v Bombay Bhappa Limited t/a Bombay House ADJ-00045992 wherein a suspected victim of human trafficking was granted an extension of time due to the inherent difficulties of said victims in support of his application to extend time. 

The Respondent did not attend the hearing to respond to the application.

Applicable Law Time Limits

Section 41(6) of the Workplace Relations Act 2015 specifies that:

“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) specifies that:

“(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.”

Deliberation and Findings – Preliminary Matter 

The Complainant requests that the cognisable period for consideration by the Court be extended to include the entire 12-month period before the complaint was lodged to the WRC on 3 July 2023.

The Court is confined to assessing alleged contraventions that occurred in the six-month period prior to that date, which in this case encompasses the period from 4 January 2023 to 3 July 2023. The timeframe for assessing complaints may be extended for a further six-month period where the Complainant can demonstrate that the delay in lodging the complaint was due to reasonable casus. 

No submissions or authorities were presented to the Court to support the assertion that it has jurisdiction to hear complaints about contraventions of the Act occurring outside the six-month period prior to lodging a complaint, where a contravention is also alleged within the six-month statutory timeframe.

In this case, the Complainant has identified alleged breaches relating to an unlawful deduction of his wages during the six-month cognisable period for the complaint. In such circumstances, the Court finds that it has no jurisdiction to extend the timeframe to encompass alleged contraventions that occurred prior to that period. Accordingly, the application to extend time is refused.

Substantive Matter

Position of the Complainant

The Complainant was entitled under the terms of his contract of employment to be paid €15.78 per hour with a 30c premium for hours worked on Sundays. He worked on average 56 hours per week, including 12.5 hours each Sunday. He was entitled to €887.43 per week based on his average working hours.

The Complainant was paid €300 a week in cash regardless of the hours worked. The Complainant was told that the rest of his wages were deducted to cover “taxes” and living expenses.

As the Respondent did not provide payslips, the Complainant had no visibility of any deductions or social insurance contributions made on his behalf. Due to his lack of English, he was unaware of his employment rights. He relied in good faith on the Respondent and the information provided to him.

There was no agreement for any deductions to his wages for accommodation or food expenses and the deductions were not provided for in his contract of employment. These deductions were made without the Complainant’s consent and were unlawful.

The Respondent registered the Complainant as an employee with Revenue on 6 October 2022. His employment was not registered for the proceeding 8-week period from 31 July 2022 to 25 September 2022. During that 8-week period, the Complainant was underpaid €587.43 per week.

For the 16-week period thereafter, the Complainant’s Revenue Summary shows gross weekly earnings of €615.50, reflecting a weekly payment had the Complainant worked a 39-hour week as per his contract with no Sunday premium. The Complainant was underpaid €272.43 per week for that period.

The Complainant was subject to “emergency tax” for the entire duration of his registered employment. He reclaimed the excessive tax deductions through Revenue in August 2023.

The Complainant was entitled to a gross weekly payment of €887.43 per week based on his average 56-hour working week. That figure would yield net earnings after taxes and PRSI of €677.65 for 2022. For 2023 the net figure would be €693.63. The total unlawful deductions in wages amount to €9,050. 

Mr Jinxiu Zheng – Testimony

The Complainant said he was a victim of human trafficking. He was employed from 31 July 2022 until 15 January 2023, when his employment ended.  He required a work permit. The Respondent was asked that he pay 100,000 RMB for the permit and 220,000 RMB for tax. He paid 190,000 RMB after he arrived in Ireland. He transferred the payments using social media- We-chat.  In total, he paid 220,000 RMB to the Respondent.

On 15 January 2023 he was asked for the remainder of the money and told by his former boss that his job was in jeopardy if he didn't pay. He later found out that his boss had lied to him. He had very little English and didn't understand the law until he spoke with An Garda Siochana.

He signed a contract of employment which stated that his rate of pay was €15.78 per hour, with an additional payment of 30 cent per hour on Sundays. He was told that he would be paid as per his contract of employment and local law.

He did not receive any pay slips.  He earned €50 per day and was paid €300 in cash ever week. He was told that he had to pay a higher rate for tax.

The Complainant kept a record of his working hours. He worked the same hours every week. His working hours were 3:00pm until midnight, but he sometimes finished later. He always worked on Sundays. He usually had a day off on Tuesday or Wednesday.

In response to questions about what specific hours he worked that fell within the six-month cognisable period for the complaint, he stated as follows:

Thursday 4 January 2023             8.5 hours

Friday 5 January 2023                   8.5 hours

Saturday 6 January 2023              9.5 hours

Sunday 7 January 2023                 12.5 hours

Monday 8 January                         8.5 hours

Tuesday 9 January 2023               8.5 hours

Thursday 11 January 2023           8.5 hours

Friday 12 January 2023                 8.5 hours

Saturday 13 January 2023            9.5 hours

Sunday 14 January 2023                             12.5 hours

He was paid weekly every week, except for his last working week.

The Applicable Law

Section 5 of the Payment of Wages Act 1991 provides in part as follows:

(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.

(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.

Substantive Issue

To ground a claim under the Payment of Wages Act 1991 the Court needs in the first instance to ascertain what wages are properly payable during the relevant period. Having established that the Court then needs to ascertain whether there was a shortfall in the proper payment and, if that was the case, whether the shortfall arose for one of the reasons set out in section 5(1) above.

What Amount is Properly Payable?

The contract of employment effective from 23 August 2021 and signed by both parties establishes the wages that were properly payable to the Complainant. The relevant clauses in relation to his remuneration states as follows:

“Remuneration Your remuneration will be €15.78 per hour (€32006) per year)

… Sundaysyou are generally entitled to a premium 30cent per hour for Sunday hours worked.”

The Court heard uncontested evidence from the Complainant in relation to his daily working hours in the period from Thursday 4 January 2023 to Sunday 14 January 2023. He said that he worked a total of 95 hours in this period, 25 of which were worked on Sundays. The Court found the Complainant’s evidence on this matter to be convincing and he gave cogent evidence about keeping a record of the daily hours that he worked for the Respondent. As a result, the Court is satisfied that the Complainant worked 95 hours during the relevant period.

The Complainant contends that he is entitled to a total payment of €1361.83 gross (€1156.05 net) for the hours that he physically worked during that period. The Court, therefore, concludes that the wages that were properly payable to the Complainant based on the hours that he physically worked during the relevant period was a gross payment of €1361.33.

Was there a shortfall in the amount payable?     

The Complainant’s evidence was that he received €50 in cash for each day that he worked. This equates to €500 in cash for the relevant period encompassed by the complaint. As a result, he contends that he suffered a shortfall in wages of €656.05 (€1156.05 less €500) for the period between Thursday 4 January 2023 to Sunday 14 January 2023.

Were the deductions required or authorised within the meaning of section 5(1)(a) of the Payment of Wages Act 1991?

The Act at Section 5 prohibits an employer from making a deduction from the wages that are properly payable to an employee unless the deduction (a) is required or authorised to be made by virtue of any statute, (b) is required or authorised to be made by virtue of a term of the employee's contract of employment or (c) the employee has given his prior consent in writing to it.

No evidence was presented to the Court to say the underpayment in wages during the period from 4 January 2023 to 15 January 2023 was required or authorised by statute, was a contractual term of the Complainant’s employment, or that the Complainant had given his prior consent in writing to the deduction. As a result, the Court determines that an unlawful deduction from the Complainant’s wages occurred during this period.

Subsection (6)(a) of section 5 of the Act provides that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction.

Section 5(1) of the Act prohibits an employer from making deductions to an employee’s wages except in accordance with the provisions of that section. The Court is satisfied based on the evidence before it that there was an unlawful deduction of the complainant’s wages that resulted in a shortfall in pay of €656.05.

Decision

The Court determines that the Complainant suffered a deduction from his wages in the period from 4 January 2023 to Sunday 14 January 2023 and that this deduction was unlawful.

The Court directs the Respondent to pay the Complainant the sum of €656.05 by way of compensation.

The Court finds that the complaint is partially well founded. The decision of the Adjudication Officer is varied accordingly. 

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
29th October 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.