Complainant

Respondent

Parties

Anibal Ignacio  Ceron Prado

Emerald Venture Capital Limited

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-00064269-001

24/06/2024

The Complainant worked for the Respondent as a Line Cook from the 13th December 2023 until the 26th May 2024. He earned €13.50 per hour. The Respondent’s business ceased trading and the Complainant did not receive wages set out on his payslip for the weeks ending the 19th May 2024 and the 26th May 2024. The complaint was submitted to the WRC on the 24th June 2024.

The Complainant stated in evidence that he was employed as a Line Cook from the 13th December 2024 to the 26th May 2024. He earned €13.50 per hour.

On the 19th May 2024 the Complainant was informed by his manager that the store where he worked would probably be closing.    

The Complainant received a payslip for the “Week Ending 19 May 2024” which stated that his net wages of €534.42 would be paid by Credit transfer on the 24th May 2024. The Complainant confirmed that the pay slip reflected the hours worked by him and the wages owed to him but that his wages were not paid to him. 

The Complainant received a payslip for the “Week Ending 26 May 2024” which stated that his net wages of €1,110.92 would be paid by Credit transfer on the 31st May 2024. The Complainant confirmed that the pay slip reflected the holiday pay owed to him but that his wages were not paid to him. 

The Complainant confirmed that the wages set out on him pay slip for the “Week Ending 19 May 2024” and the “Week Ending 26 May 2024” 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 Ventures 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. On the morning of the hearing Mr. Lee was contacted by the WRC and he confirmed that the Respondent would not be attending the hearing. 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.

Preliminary Issue

Before considering the substantive issue in this case, I first must address a preliminary issue regarding the jurisdiction of the WRC. The complaint was submitted on 24th June 2024 under the Organisation of Working Time Act 1997. In the space provided in the complaint form for complainants to expand on their complaints, the Complainant set out details of the non-payment of his wages comprising pay and outstanding holiday pay.

I note the finding of the High Court in County Louth VEC v. Equality Tribunal [2009] IEHC 370 that:

“I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

I also note the dicta of MacMenimin J. in the Supreme Court in Louth/Meath ETB v. Equality Tribunal [2016] IESC 40:

“It goes without saying, first, that the duty of the Equality Officer is both statutory, and, ultimately, delimited by constitutional considerations. As part of fair procedures, it is necessary that all parties be aware, in a timely way, of the case which they must meet. Consequently, it would be wrong, were a situation to evolve in this investigation, where one or other of the parties was under a misapprehension of precisely the range of legitimate inquiry. Second, it is hardly necessary to reiterate that it is not possible for any tribunal, upon which a particular jurisdiction has been conferred by statute, to extend or confine the boundaries of that jurisdiction by an erroneous determination of fact (see State (Attorney General) v. Durkan [1964] I.R. 279, approved in Killeen v. DPP [1998] ILRM 1). There may also be circumstances in which a tribunal, although holding jurisdiction to enter upon an investigation or inquiry, may render its decision a nullity by, for example, a denial of fair procedures.”

I further note the dicta of Charleton J. in Galway-Mayo Institute of Technology v. Employment Appeals Tribunal [2007] IEHC 210:

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

Applying these dicta, I note that the WRC complaint form is not a statutory form. It is intended to set out the outline of a complaint or complaints, so that, and in line with fair procedures, the Respondent knows the issues it faces. In this case, the issue a possible breach of the Payment of Wages Act 1991 is clearly raised in the complaint form. The complaint form and supplemental documentation was copied to the Respondent.  It is clear from the correspondence sent to the WRC by the Respondent in advance of the hearing that he was on notice that the Complainant, along with a number of other employees, was seeking the payment of wages unlawfully deducted the weeks ending the 19th May 2024 and the 26th May 2024. I find that I have jurisdiction to investigate this complaint under the Payment of Wages Act 1991. The decision, therefore, reflects that that this is a complaint seeking redress pursuant to the Payment of Wages Act 1991.

Substantive Issue

The complaint referred to the WRC is that the Respondent unlawfully deducted wages due to the Complainant set out on his payslip “Week Ending 19 May 2024” and the “Week Ending 26 May 2024”. The complaint was submitted to the WRC on the 24th June 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 he commenced employment with the Respondent on the 13th December 2023 and that he earned €13.50 per hour. On the 19th May 2024 the Complainant was informed by his manager that the store where he worked would probably be closing and since that date he has not been contacted for any shifts.  

The Complainant was issued with a pay slip for the “Week Ending 19 May 2024” which stated that his wages would be paid to him by Credit transfer on the 24th May 2024 however he was not paid his wages. Subsequently he was issued with a pay slip for the “Week Ending 26 May 2024” which stated that his wages would be paid to him by Credit transfer on the 31st May 2024 however he was not paid the wages.  

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 his contentions with documentation where possible.  I am satisfied that the Complainant has established his claim to the total net wages of €1,645.34 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 €1,645.34 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 €1,645.34 net.