ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00054378
Parties:
| Complainant | Respondent |
Parties | Giullia Sacmori De Souza | Emerald Venture Capital Limited in Liquidation |
Representatives | Self-represented | No appearance |
Complaint:
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-00066273-001 | 25/09/2024 |
Date of Adjudication Hearing: 18/12/2024
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015, this complaint was assigned to me by the Director General. I conducted a hearing on December 18th 2024, and gave the parties an opportunity to be heard and to present evidence relevant to the complaint. The complainant, Ms Giullia Sacmori De Souza, represented herself. There was no appearance by or on behalf of Emerald Venture Capital Limited in Liquidation, although I am satisfied that the company was on notice of the time and date of the hearing.
While the parties are named in this Decision, from here on, I will refer to Ms Sacmori De Souza as “the complainant” and to Venture Capital Limited in Liquidation, as “the respondent.”
The complainant is a lay litigant and a foreign national. With one day’s notice on May 18th 2024, her employment was terminated and she wasn’t paid her final week’s wages. When she submitted this complaint to the WRC on September 29th 2024, she ticked the box to indicate that she wished to make a complaint under the Organisation of Working Time Act 1997. In the narrative of her complaint, she stated,
“…I would like to inform you that my employer has given me only one day’s notice before closing the company. Additionally, they have sent me my payslips but have not paid me. I would like to kindly request your assistance in resolving this matter.”
It is apparent from this that the complainant’s case is about the fact that she did not receive her final wages and her complaint should have been submitted under s.6 of the Payment of Wages Act 1991. A similar problem was addressed by the Labour Court in its decision on Ballarat Clothing Limited and Ann Aziz in 2015[1], although, in that case, on the form she submitted to the former Equality Tribunal, Ms Aziz named two company directors as her employer, rather than the name of the company. Ms Aziz was not legally represented and, finding that the respondent suffered no prejudice by being incorrectly named, the Labour Court referred to the decision of the High Court in O’Higgins v University College Dublin & Another[2], where Mr Justice Hogan held that,
“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if indeed, error it be)…In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”
While the complainant’s error is not entirely similar to that of Ms Aziz, she has made a simple mistake on the complaint form. I am satisfied that the respondent will suffer no prejudice if I amend the form so that her complaint is adjudicated on under s.6 of the Payment of Wages Act 1991.
Summary of Complainant’s Case:
The complainant commenced working for the respondent on March 19th 2024. She was employed as a barista and deli assistant in the food court in Charlestown Park Shopping Centre. She earned €12.70 per hour and she worked an average of 34 hours a week. On May 17th 2024, she said that her manager informed her that the business was closing down and her last day at work was May 18th. The complainant said that she received no wages for the hours that she worked in the week up to Saturday, May 18th. She provided copies of payslips issued to her with regard to the weeks ending on May 19th and May 26th 2022. These payslips provide the following information: Week ending on May 19th 2024 Hours worked: 22 @ €12.70 per hour = €279.40 “Lump sum (leaver):” €441.07 Gross pay: €720.47 To be paid by credit transfer on May 24th 2024 Week ending on May 26th 2024 Hours worked: 19 @ €12.70 per hour = €241.30 “Lump sum (leaver):” €19.30 Gross pay: €260.60 To be paid by credit transfer on May 31st 2024 The payslips indicate that no deductions have been made for tax, USC or PRSI from the gross pay due. Although the payslips indicate that the wages are to be paid by credit transfer on May 24th and 31st, no money was transferred to the complainant. At the hearing, the complainant produced a copy of a letter dated December 12th 2024, from the liquidator, Mr Dessie Morrow, of AZETS, with an address at 40 Mespil Road, Dublin 4. The letter is to inform the affected employees that their jobs are at risk of redundancy. Paragraph 9 of Mr Morrow’s letter addresses the failure of the company to pay the employees for their last week or work: “We understand that the Company operated a weekly payroll cycle with the most recent payroll cycle ending on 12 May 2024. Any salaries accrued since that date are not being paid as normal in their normal weekly cycles. Arrears of wages in respect of the period up to 26 May 2024 will be claimed from the Department of Social Protection (“DSP”) under the Insolvency Payments Scheme and paid to the employees once funds are received from the DSP.” |
Findings and Conclusions:
Section 5(6) of the Payment of Wages Act 1991 provides that, to ground a complaint under the Act, wages must be properly payable: (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 complainant’s evidence has not been rebutted, and her complaint is, in fact, supported by the correspondence from the liquidators on December 12th 2024. I find therefore that, in breach of section 5 of the Payment of Wages Act, wages equivalent to €981.07 which were properly payable to the complainant have not been paid. |
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.
Based on the conclusions set out above, I decide that this complaint is well founded. In accordance with the redress provisions at section 6 of the Payment of Wages Act, I direct the respondent to pay the complainant compensation of €981.07. |
Dated: 07/01/2025.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Wages not paid |
[1] Ballarat Clothing Limited and Ann Aziz EDA 151
[2] O’Higgins v University College Dublin & Another [2013] 21 MCA