Complainant

Respondent

Parties

Katie  Sheehan

Tiernan Gray T/ A  Tg Sport horses

Representatives

  Appeared In Person

 No Appearance by or on behalf of the Respondent

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-00065191-001

03/08/2024

On August 3, 2024, the Complainant submitted a complaint of underpayment of wages to the WRC. This was acknowledged and shared with the named Employer on 7 August 2024.

Both Parties were invited to hearing set for November 20, 2024, by Webex. As neither party had acted on the invitation to forward prepared written submissions within the requisite 15 days pre- hearing, I wrote to both Parties seeking this key information.

Neither Party furnished a response.

On the morning of the hearing, I logged on only to discover that the Complainant was not available in a stationary setting. I also discovered that the Respondent had not made an appearance of any kind and had not furnished any reason for this.

I asked the Complainant how long it would take her to reach a stationary setting, and she told me 30 minutes. I delayed the commencement of the hearing to 10.45 hrs. Even at this late stage, the Respondent had not made an appearance in person or by representative.

I commenced the hearing on an ex parte basis and marked the Respondent as a “no show “I allowed 5 days to pass post hearing to permit an explanation, none followed.

At the conclusion of the hearing, I requested further information on the claim from the complainant. I received a number of what’s app messages, which were in turn shared with the Respondent, but did not generate a requested comment.

The Complainant gave evidence by affirmation.

The Complainant presented her case as a Lay Litigant.

The Complainant submitted that during the course of her 6-week employment tenure as Groom at the Respondent yard that she was not paid €280.00 owed in wages at the conclusion of employment on 26 July 2024.

The Complainant submitted that she had commenced work as a Groom with yard work on 14 June 2024. She agreed that she would receive a nett fortnightly payment of €780.00 per, but did not have a written contract of employment or pay slips.

The Respondent agreed to manage the statutory deductions on wages.

Accommodation was provided by the Respondent separate to wages.

She gave evidence that the job was very demanding and securing payment of wages was a challenge. She submitted that she was met with continuous work without days off.

The job didn’t work out and she decided to leave. On 21 July 2024, the Complainant handed in her notice. She ceased work on 26 July 2024 after receiving notification from the Respondent to leave the accommodation on 25 July 2024.

 The Respondent withheld her wages, insisting that she serve two weeks’ notice prior to payment.  The Complainant could not countenance this demand as the work environment was simply too onerous and unsupported. She subsequently received €500.00 nett on Thursday 25 July 2024, partial payment, but not the remainder prior to her departure.

In clarifications, the Complainant confirmed that on 15 October 2024, the Respondent had given her an undertaking to pay, but nothing followed.

The Complainant claimed €280.00 nett pay and accrued but untaken annual leave x 8 days.

The Complainant submitted some extracts from interparty what’s app which chronicled the ending of the employment relationship.

The Complainant concluded that the negative experience at this employment had caused her to turn her back on the Horse Industry.

There was no appearance on or behalf of the Respondent at hearing. He did not forward a defence in the case.

My role in this case is to invite submissions from both Parties and based on these submissions and evidence adduced at hearing, I am to decide on whether I have established a contravention of Section 5 of the Payment of Wages Act, 1991.

 In reaching this decision, I have had regard for both written and oral submissions put forward by the Complainant.

I was disappointed that the Respondent chose not to engage in this case. I was further disappointed that no reason accompanied this action.

I say this in particular in this case in light of the excellent Employment Guide to Horse Breeding and Racing Sector Collaborative Report produced by the WRC and endorsed by Horse Racing Ireland (HRI) in 2020.

Section 4 of that Report is quoted here.

Section   4 of the Employment Guide for Horse Breeding and Racing Sector, 2020.

The termination of the employment relationship can occur in many ways. The most straightforward is where the employee resigns (having given at least one weeks’ notice, or more if the contract provides for it). However, the other occasions of termination of the employment relationship are governed by the requirements of statutory legislation. Consequently, if not handled properly, it can lead to a complaint that it was not fair. “Good Practice” In all situations the end of the relationship should not come as a surprise to either party. The fundamentals of good practice are the need for; - • employee engagement in fair dialogue prior to dismissal • compliance with the undertakings of the employment contract • compliance with statutory obligations • reasons for any termination to be objective and manifest The prerequisite in good practice in ending employment is dialogue with the employee which must be at the earliest possible moment, with the employer’s intentions stated clearly, and the reasons justifying same, and where the employee is given the opportunity to “have their say”. The ‘principles of natural justice’ which should be followed in the dialogue are: • The Right to be told or be informed • The Right to be represented • The Right to respond • The Right to a fair and impartial outcome which is based on facts • The Right to appeal In any employer- employee dialogue and discussion, each case should be considered separately, within its context, and on its own merits. The employer should have as a goal that previous employees will speak well of that employer when they ‘move on’. Where this is done fairly and proportionately the employee will leave with less regret, and the risks of a claim being lodged against the employer will be reduced

The employment relationship in this case did not emerge from the normal statutory framework designed by the Terms of Employment (Information) Act, 1994. Instead, regrettably, a series of disjunctive what’s app messages seemed to form the foundation of the employment.

I did not have the benefit of a contract of employment of pay slips.

I accept the Complainants evidence that she agreed to accept €780 in nett pay per fortnight. Her reported hours of work were staggering at 68 hrs per week. This fact went uncontested at hearing. I did not have a claim under Minimum Wage Legislation.

Section 5 of the Payment of Wages Act, 1991 provides a strict code in relation to the limitations to the Respondents power to interfere with Wages.

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.

The first test in this claim rests on whether the sums claimed by the Complainant were properly payable in accordance with Section 5(6) of the Act.?

I am satisfied based on the uncontested evidence that the complainant agreed to work for the Respondent for €780.00 nett per fortnight on a 6-day week. I accept that this amount was properly payable to her. Balans v Tesco Ireland [2020] IEHC 55 at the High Court.

The claim for 8 days annual leave accrued, but unpaid appears   to me to be excessive as the complainant confirmed that she did have some additional time off during her short tenure.

I find that the complainant did not particularise a claim for accrued but untaken annual leave on her complaint form and expand her complaint.

Application of Section 5(1)

I am satisfied that in the absence of a visible contract of employment, the Respondent was not permitted to rely on a term of such a contract to make a deduction from the Complainants pay.

I have not had the benefit of being able to consider a notice clause in any contract. However, I accept that the complainant gave notice of her intention to leave on 21 July 2024. She did not at that juncture fall into the jurisdiction of Sections 4 or 5 of the Minimum Notice and Terms of Employment Act, 1973, which sets down eligibility as 13 continuous weeks in employment.

The Complainant in this case left after 6 weeks and the Respondent was mistaken in seeking to bind her to her employment by withholding wages without authority.

The Complainant has not demonstrated that she gave permission for this deduction in pay and on the contrary gave cogent evidence that she opposed the withholding of her pay during the final week of her employment.

I find that the Respondent cannot rely on any of the permissions allowed in Section 5(1) of the Act and as a consequence failed to pay wages that were properly payable to the complainant.

It is regrettable that this matter could not have been resolved prior to hearing.

I find the claim for €280.00 nett in unpaid wages is well founded.

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.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to this complaint in accordance with Section 5 of that Act.

I have found in favour of the Complainant.

I have established a contravention of Section 5 of the Act for wrongly withheld wages .

I now direct the Respondent to pay the Complainant €280.00 nett in respect of this breach within 4 weeks of this decision to allow closure on a very disappointing work experience.

I also commend the Employment Guide referenced in my earlier findings for the attention of both Parties as a careful conjoint perusal could have navigated a much more respectful conclusion of employment.

Payment of Wages on Conclusion of Employment / Horse Racing Sector