Complainant

Respondent

Parties

Viktor  Antonenko

MKM 77 Windows Limited [amended]

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

The Respondent did not attend and was not represented at hearing. 

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-00065618-001

27/08/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00065618-002

27/08/2024

These matters came before the Workplace Relations Commission dated 27/08/2024.  The Complainant alleges contraventions by the Respondent of provisions of the above listed statutes in relation to his employment with the Respondent.  The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 06/02/2025. 

The Complainant was employed by the Respondent as a construction worker / supervisor at all material times.  The Respondent is carrying out business in the construction industry.   The Complainant commenced his employment with the Respondent on 29/04/2024.  The employment ended on 04/07/2024.   The Complainant was paid €855.60 net per week for which he worked 30 hours.   

The first hearing of this matter was adjourned on 22/11/2024 because I was not satisfied the Respondent was properly on notice of the hearing. 

Having waited a reasonable period of the time on the day of the second hearing of this matter, namely 06/02/2025 there was no appearance by or on behalf of the Respondent.  I am satisfied the Respondent was notified of the date, time and venue of the hearing by correspondence from the WRC to the registered address of the Respondent as set out in the CRO website.   

I note a trading status as “normal” on the CRO website as of the date of issue of issue of this decision. 

CA-00065618-001 pursuant to section 6 of the Payment of Wages Act, 1991 (“the 1991 Act”). 

The Complainant submits he was not paid his wages at the end of June 2024 and again at the beginning of July 2024.   The Complainant submits he was provided with a payslip for pay period 26 and pay period 27 but the amount was not paid in to his bank account.  The date of the alleged deduction is 04/07/2024.  The monetary amount of the alleged deduction is €1297.26.    

The Complainant submits he repeatedly contacted the Respondent requesting clarification and resolution of the non-payment issue, but his requests remained unanswered and did not lead to any action. 

CA-00065618-002 pursuant to section 7 of the Terms of Employment (Information) Act, 1994 (“the 1994 Act”).

The Complainant submits in the WRC complaint form that he would like it noted that his employer has ignored his request to provide him with the full terms of employment and such requests were made by WhatsApp and email. 

The Complainant further submits there was a discrepancy between the name of the Respondent on the payslips (MKM 77 Construction) and the name used in the reporting documents submitted to revenue (MKM77 Windows Limited). 

CA-00065618-001/2

There was no appearance by or on behalf of the Respondent at the hearing.  I note the Respondent has not engaged with the WRC or filed any written submissions or documentation.  In the circumstances no evidence has been proffered on behalf of the Respondent. 

In circumstances where I am satisfied that the Respondent was properly served with notice of the date, time and venue of the adjudication hearing and having waited some time to accommodate a late arrival and where I formally opened and closed the adjudication hearing on 06/02/2025 I will proceed to set out hereunder my findings and conclusions.

CA-00065618-001

This is a complaint pursuant to the Payment of Wages Act, 1991. 

In conducting my investigation and in reaching my decision, I have carefully reviewed all relevant documents provided to me.  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 Complainant provided comprehensive documentation to corroborate his claims comprising all his payslips and all his bank records / account transactions together with Revenue documents. 

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

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 fromthe wages of the employee on the occasion.

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. 

Therefore, the question to be decided is whether the wages claimed by the Complainant were properly payable. 

The Relevant Facts

I note the Complainant was issued with a payslip for pay period 26 with a pay date of 27/06/2024.   I note this amount €855.60 was not credited to the Complainant’s bank account as evident from the bank statement pages provided up to and including 11/07/2024.  I note the Complainant was issued with a payslip for pay period 27 with a pay date of 04/07/2024.  I note this amount €441.66 was not credited to the Complainant’s bank account as evident from the statement pages provided up to and including 11/07/2024. 

The Complainant’s uncontested evidence on oath is that he has not received these wages in the amount of €1297.26. 

I am satisfied the monies owing are properly payable to the Complainant.  Accordingly, I find this complaint to be well-founded. 

Section 6 of the 1991 Act provides as follows:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a)    the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph

(a), twice the former amount.

I direct the Respondent to pay to the Complainant the amount of €1297.26 net within 42 days from the date of this decision.  

CA-00065618-002 Complaint of a contravention of section 7 of the Terms of Employment (Information) Act, 1994 (“the 1994 Act”) 

When considering and determining on the Respondent’s failure to provide a contract of employment to the Complainant I am guided by the Superior Courts where it has been held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.  I note in particular in the case of County Louth VEC v. Equality Tribunal [2009 IEHC 370] where the High Court held as follows:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.” 

I am satisfied if a fact is referred to in the written submissions which correlates with a cause of action not selected on the complaint form that the Respondent has been afforded the opportunity to deal with this matter as it was clearly set out in the Complainant’s submission that he was not provided with a contract.  I am satisfied there is no prejudice served upon the Respondent.     

I determine this complaint is properly before me as the narrative is clearly set out in the Complainant’s WRC complaint form and in his supporting documents filed with the WRC.  I am satisfied the Respondent suffers no prejudice on the basis the fact is clearly referred to in the written submissions and correlates with a cause of action albeit not selected on the complaint form.   

For the reasons set out above, as the Workplace Relations Complaint form is not a statutory form, I deem it appropriate in the interests of fairness to add a complaint under the Terms of Employment (Information) Act, 1994.

The Relevant Law

The Terms of Employment (Information) Act, 1994, as amended sets out the basic terms of employment which an employer must provide to an employee in written format.  Section 3 (1A) obligates an employer to provide an employee with certain essential information, or core terms, in writing within five days of commencing employment. 

Section 3 (1) provides that an employer must provide an employee with a written statement of terms of employment within one month of commencement of employment. 

Section 7 of the Act provides as follows: 

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G] shall do one or more of the following namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The Relevant Facts

The Complainant asserts he did not receive anything in writing regarding the terms of his employment and he adduced in evidence that he had sought such details and exhibited screen shots of his efforts.  Based on the uncontested evidence of the Complainant I find this complaint to be well-founded. 

In the circumstances I decide it is just and equitable having regard to all the circumstances to order the Respondent to pay to the Complainant compensation in the amount of €1,700.00 for breach of a statutory right. 

This award is by way of compensation for a breach of the Complainant’s statutory right and is not in respect of remuneration including arrears of remuneration. 

CA-00065618-001 complaint pursuant to the Payment of Wages Act, 1991

For the reasons stated above I decide this complaint is well-founded.  I direct the Respondent to pay to the Complainant in the sum of €1,297.26 net within 42 days from the date of this decision.   

CA-00065618-002 complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994

For the reasons stated above I decide the complaint of a contravention of the Terms of Employment (Information) Act, 1994 is well-founded and I order the Respondent to pay to the Complainant the sum of €1,700.00 in compensation within 42 days from the date of this decision.   

Payslip issued; bank account not credited; no contract;