ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00052523
Parties:
| Complainant | Respondent |
Parties | Gustavo Nicolas Otalora Silva | Emerald Venture Capital Limited |
Representatives | Self-Represented | No Appearance |
Complaint(s):
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-00064237-001 | 21/06/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991 | CA-00064237-002 | 21/06/2024 |
Date of Adjudication Hearing: 25/09/2024
Workplace Relations Commission Adjudication Officer: Christina Ryan
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of a remote hearing on the 25th September 2024 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
At the time the hearing was to commence, it was apparent that there was no attendance by or on behalf of the Respondent. I verified that the Respondent was on notice of the date, time and venue of the hearing and waited some time to accommodate a late arrival. The Respondent’s Director, Brian Lee, was contacted by the WRC by telephone and he indicated that would not be attending the hearing. The Complainant was in attendance and I opened the hearing.
The parties are named in the heading of the decision. For ease of reference, for the remainder of the
document I will refer to Gustavo Nicolas Otalora Silva as “the Complainant”. The Complainant was assisted at the hearing by an interpreter. At the hearing the Complainant made an application to amend the name of the Respondent to Emerald Venture Capital Limited. Having considered the documentation submitted to the WRC, and in particular the Company Registration Office Form G1Q: Special Resolution to Change the Company Name, the oral submissions made by the Complainant and the email communication from the Respondent’s Director Brian Lee confirming the change of the company name I am satisfied that the correct name of the Respondent is Emerald Venture Capital Limited and I have amended the name of the Respondent accordingly. Emerald Venture Capital Limited will hereinafter be referred to as “the Respondent”.
By email dated the 18th September 2024 the Respondent’s Director Brian Lee stated 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. Having carried out a Companies Registration Office search I am satisfied that the status of the Respondent is “Normal”.
At the adjudication hearing I advised that in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021 hearings before the Workplace Relations Commission are now held in public and that the decision would not be anonymised unless there were special circumstances for doing otherwise. There was no application to have the matter heard in private or to have the decision anonymised.
I advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. The Complainant gave his evidence by affirmation.
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under Statute.
The parties’ respective positions are summarised hereunder followed by my findings and conclusions and decision. I received and reviewed documentation from both parties prior to the hearing. All evidence and supporting documentation presented by both parties have been taken into consideration.
Background:
The Complainant worked for the Respondent as a Kitchen Assistant from the 8th April 2024 until the 26th May 2024. He earned €13.00 per hour. The Respondent’s business ceased trading and the Complainant did not receive wages set out on his pay slip for the weeks ending the 19th May 2024 and the 26th May 2024. The complaints were submitted to the WRC on the 21st June 2024. |
Summary of Complainant’s Case:
The Complainant stated in evidence that he was employed as a Kitchen Assistant from the 8th April 2024 to the 26th May 2024. He earned €13.00 per hour. On the 19th May 2024 the Complainant was informed by his manager that the store where he worked would probably be closing. CA-00064237-001: The Complainant received a payslip for the “Week Ending 19 May 2024” which stated that his net wages of €495.88 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 they were not paid to him. CA-00064237-002: The Complainant received a payslip for the “Week Ending 26 May 2024” which stated that his net wages of €485.68 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 his payslips for the “Week Ending 19 May 2024” and the “Week Ending 26 May 2024” remained outstanding as at the date of the hearing. |
Summary of Respondent’s Case:
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. |
Findings and Conclusions:
CA-00064237-001 AND CA-00064237-002 In making these findings, I have considered the documentation submitted by the parties and the oral evidence adduced at the hearings summarised above. The complaints referred to the WRC are that the Respondent unlawfully deducted wages due to the Complainant set out on his payslips for the “Week Ending 19 May 2024” and the “Week Ending 26 May 2024”. The complaints were submitted to the WRC on the 21st 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 8th April 2024 and that he earned €13.00 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. On the 24th May 2024 the Complainant was issued with a pay slip for the “Week Ending 19 May 2024” which stated that his net wages of €495.88 would be paid to him by Credit transfer on the 24th May 2024 however he was not paid his wages. Subsequently, on the 29th May 2024, he was issued with a pay slip for the “Week Ending 26 May 2024” which stated that his net wages of €485.68 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 €981.56 (€495.88 and €485.68) 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 €495.88 net in respect of CA-00064237-001 and €485.68 net in respect of CA-00064237-002. I consider this to be reasonable in the circumstances. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00064237-001 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 €495.88 net. CA-00064237-002 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 €485.68 net. The total sum due and owing to the Complainant is €981.56 net. |
Dated: 16-10-24
Workplace Relations Commission Adjudication Officer: Christina Ryan
Key Words:
|