Complainant

Respondent

Parties

Tatiana  Kirk Rodrigues

Auxilium Care Limited

Representatives

Self-Represented

Self-Represented

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-00069271-001

13/02/2025

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

CA-00069271-002

13/02/2025

This matter came before the Workplace Relations Commission dated 13/02/2025.  The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 12/06/2025.  The Respondent did not attend at hearing on 12/06/2025 and having reviewed the file on the day I was not satisfied the Respondent was properly on notice of the date, time and venue. 

The incorrect address for the Respondent had been documented on the WRC complaint form.       

Accordingly, this matter was re-listed for hearing in order to ensure the Respondent was properly on notice.  The re-convened hearing took place on 25/07/2025 and both the Complainant and the Respondent were in attendance. 

The Complainant is a support worker.  The Respondent is a company engaged in the provision of aftercare supports.

The Complainant is claiming an unlawful deduction in the amount of €10,284.30 which she claims she should have received on 28/11/2024 together with an amount of €2,056.86 which she claims she should have received on the same date. 

CA-00069271-001 complaint pursuant to section 6 of the Payment of Wages act, 1991 (“the 1991 Act”)

Overview of narrative on WRC complaint form

I was not paid by my employer from the date the contract was signed on 23/07/2024 (no other start date was provided) until I got official written correspondence from the employer that there would be no job on 28/11/2024.  The above calculation is for the 6 month period from the date of submitting this form. [SIC]

Overview of written submission

The Complainant was residing in Ireland under a Stamp 1G visa in 2024 which permitted her to seek work with a company that could sponsor a work permit.  The Complainant submits she had been working for a UK based company for the previous four years and they were not eligible to offer sponsorship for her visa status.

The Complainant submits that at the beginning of 2024 she started applying to companies in Ireland that were registered sponsors one of which was the Respondent company.  The Complainant submits that when she met with the Respondent she explained her visa situation in full and he reassured her that sponsoring her work permit would be a straightforward process.  The Complainant submits she was asked to sign a contract in July 2024 having initially been interviewed in February by which time she had also completed all the required training. 

The Complainant submits she was never given a definitive start date and that the Respondent never officially ended her contract and that she remained in a state of uncertainty.  The Complainant submits the situation caused her significant emotional, financial and professional distress and that she ended up without a valid visa, without employment and without income. 

The Complainant submits the Respondent did schedule an interview for her in September 2024 with another company but by this time her visa had already expired and she was no longer legally able to work. 

CA-00069271-002

Overview of narrative on WRC complaint form

My employer has not paid me outside the period of the 6 months cognisable period (3weeks).

Summary of direct evidence of the Complainant on oath

The Complainant submits she is looking for justice and that it’s more than money.  The Complainant submits that in February 2024 she made contact with the Respondent arising out of an advertisement on Indeed.  The Complainant submits she had commenced looking for employment bearing in mind she required sponsorship for her stamp/visa which would be expiring later in the year.  The Complainant submits she met with Respondent in February and he forwarded her a contract in July.  The Complainant submits the Respondent gave her an offer that she would be starting work and that she believed him and she trusted what he said but that after she signed the contract nothing happened and she did not start work. 

Summary of direct evidence of the Respondent on affirmation

The Respondent submits that a lot of what the Complainant has said is correct.  The Respondent submits that he was putting together an after-care placement initially for one client with a goal to expand.  The Respondent submits he placed the job spec on Indeed and he interviewed and recruited 6 staff one of whom was the Complainant. 

The Respondent submits he was working in conjunction with TUSLA and he had submitted a service engagement declaration to TUSLA on 29/04/2024.  The Respondent submits he sourced the relevant and necessary training for the Complainant and the others which included Fire Safety, First Aid and Therapeutic Crisis Intervention and the Complainant was paid for her attendance at said training. 

The Respondent submits it was not until September 2024 that TUSLA reverted to him to advise that he was not successful in his endeavour and he did not receive approval from TUSLA.  The Respondent was not admitted to the panel as an approved provider.  The Respondent submits the approval process had taken far longer than had initially been indicated and he had remained at all times hopeful that he would be successful. 

The Respondent acknowledged that he should have made matters clearer to the Complainant and that he should have explained to her that her job was contingent on him receiving approval and he apologised to the Complainant. 

CA-00069271-001 complaint pursuant to section 6 of the Payment of Wages act, 1991 (the “1991 Act”)

This is a complaint pursuant to the Payment of Wages Act, 1991.  The cognisable period for this complaint runs from 14/08/2024 to 13/02/2025.    

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

The Relevant Law

The Relevant Law

Section 1 of the Payment of Wages Act, 1991 (the “1991 Act”) 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 1991 Act sets out:

5. Regulation of certain deductions made and payments received by employers

(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.

The matter for me to decide is whether the Respondent has properly paid the Complainant in accordance with section 5 of the 1991 Act. 

In the case of Marek Balans v. Tesco Ireland Limited[2020] IEHC 55 the High Court made it clear that the WRC, when considering a complaint under the 1991 Act, must first establish the wages which were properly payable to the employee on the occasion 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 WRC would then consider whether that deduction was lawful.  The 1991 Act does not define the concept of “properly payable” and I must reach a conclusion on this by reference to objective criteria and with due deference to previous findings of the Labour Court or other authorities. 

The Relevant Facts

Under the 1991 Act, an employee is entitled to be paid in accordance with their contract for any hours worked.  In a claim pursuant to the 1991 Act a complainant must first show the monies were “properly payable” to him / her under the Act. 

It is not in dispute the Complainant signed a contract with the Respondent on 23/07/2024.  It is not in dispute the Complainant did not undertake any work for the Respondent in circumstances where the Respondent was unsuccessful in his application to TUSLA to provide services on behalf of TUSLA.  

It is not in dispute the jobs for the six staff the Respondent had recruited for his endeavour one of whom is the Complainant did not, in fact, materialise. 

It is not in dispute the Complainant did not undertake any work for the Respondent.  The Complainant confirmed she was paid in full for the training days she undertook.      

This complaint as presented falls to be determined under the Payment of Wages Act, 1991 and it is through the lens of that legislation set out above that this complaint has to be investigated.   

I have regard to the case of Larkin Unemployment Centre -v- Deborah Eustace PWD22 where the Labour Court held that an employee must actually work assigned hours for wages to be deemed properly payable for the purposes of the Payment of Wages Act.  [emphasis added]

In the matter of Fuller -v- Minister for Agriculture [2008] IEHC 95 Gilligan J referred to the following passage from Dean v. Wilson [1909] 2 IR 404 at 409:

“There was no contract to pay it unless it was earned. If she had not worked at all during the week, though the contract for service remained, she would not have been entitled to any payment; and could it be said that when, being entitled to nothing, she was paid nothing, the non-payment was an offence under the Act?...The non-payment took nothing from her to which, in any view, she had become entitled, or to which, when the week ended, she could have ever become entitled. It was simply withholding payment of what she had not earned, and never could earn.”

While the Complainant had a contract of employment from July 2024 to 28/11/2024 I note that she did not carry out any work for the Respondent during this period because her services were not required.   As the Complainant did not carry out any work, no wages accrued to her during this period. 

Having regard to the legal authorities cited above I am satisfied that in order for an unlawful deduction of wages under the 1991 Act there needs to be an entitlement to the wage in the first instance.  I am not satisfied the Complainant has discharged this onus of proof. 

I am satisfied that the Complainant has not established any entitlement for wages for the period claimed.

In circumstances whereby the Complainant did not actually work any hours I find that that there has been no deduction from wages that may be deemed to be “properly payable” for the purpose of the present Act.  

As a consequence of the foregoing, I find that the complaint is not well-founded.

CA-00069271-001

For the reasons stated above I decide this complaint is not well-founded.

CA-00069271-002

For the reasons stated above I decide this complaint is not well-founded. 

No wages accrued; no hours worked;