Complainant

Respondent

Parties

Arunas  Vaitiekaitis

Tom Winter T/A Tom Winter Haulage

Representatives

Self-represented

Did not attend

Act

Complaint Reference No.

Date of Receipt

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

CA-00064407-001

30/06/2024

The Complainant commenced his employment with the Respondent as an HGV driver on 15 January 2024. He resigned his position on 23 January 2024.

On 30 June 2024, the Complainant referred a complaint to the Director General of the WRC pursuant to section 6 of the Payment of Wages Act alleging that the Respondent has not paid him or paid him less than the amount due to him.

The Complainant submits that he commenced his employment with the Respondent for a trial period starting on 15 January 2024. The Complainant worked 8 days until 23 January 2024 excluding Sunday 21 January 2024. He worked 8-10 hours each day.

The Complainant submits that he doubted that the Respondent would pay him so he told the Respondent that he would no longer work for the Respondent. The Respondent said that he passed the Complainant’s details to his accountant and agreed to pay the Complainant.

The Complainant submits that he gave the Respondent a month and then contacted him in the end of February. The Respondent informed the Complainant at that stage that it would not pay him the outstanding monies as the Complainant “had wasted his time and had no intention of continuing to work for him”. Copies of the WhatsApp messages between the Complainant and Mr Winter were exhibited at the adjudication hearing.

Summary of direct evidence of the Complainant

The Complainant said that he met with Mr Winter on 9 November 2023 and they agreed that the Complainant would start working for the Respondent on 10 or 11 November 2023. The Respondent then changed his mind and told the Complainant that he would give him a call.

The Complainant said that he texted the Respondent on 17 November 2023 inquiring about the job, Mr Winter informed him that he definitely needed a driver but he asked for more time.

The Complainant said that he contacted Mr Winter every week to check and every week he was told that it would be the next week.

Eventually the Complainant started on 15 January 2024. He worked 8 days between 8 and 10 hours a day.

The Complainant said that he tried to call Mr Winter after a week when he did not get paid but he did not answer his calls. The Complainant decided to leave the job then.

The Complainant said that he did not get a contract and on 22 January 2024 he asked the Respondent for a meeting so he could find out what was his wage. He said that he thought he would be paid about €70 net per day but was not sure.

There was no attendance by, or on behalf of, the Respondent at the hearing.

The Relevant Law

Section 1 of the Payment of Wages Act, 1991 provides the following definition of wages:

"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:

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

Regulation of certain deductions made and payments received by employers.

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.

Section 5(6) of the Payment of Wages Act, 1991 address the circumstances in which wages which are properly payable are not paid:

(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.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 MacGrath J considered Section 5 of the Act as follows:

36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

Based on the uncontested and credible evidence of the Complainant which was supported by copies of text messages between the Complainant and the Respondent, I find that the Complainant worked for the Respondent for 8 days, an average 9 hours a day. The Complainant was not paid for the work performed. While the Complainant was not sure what was his rate of pay and he thought it might have been €70 per day, even if he was paid the national minimum wage, his earnings would equal to €114 gross per day (€12.70 x 9 hours).

I declare this complaint to be well founded, I order the Respondent to pay the Complainant €914.40 less any statutory deductions.

Unlawful deduction- non-payment of wages