ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00054421
Parties:
| Complainant | Respondent |
Parties | Matthew Carey | UpSkill Limited T/A Olive |
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Representatives | Self-Represented | The Respondent did not attend and was not represented at hearing. |
Complaint:
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-00066301-001 | 26/09/2024 |
Date of Adjudication Hearing: 14/02/2025
Workplace Relations Commission Adjudication Officer: Eileen Campbell
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The hearing was conducted in person in Lansdowne House.
While the parties are named in the Decision, I will refer to Mr Matthew Carey as “the Complainant” and to UpSkill Limited T/A Olive as “the Respondent”.
I explained the procedural changes arising from the judgment of the Supreme Court in Zalewski v. An Adjudication Officer, Ireland and the Attorney General [2021] IESC 24 in April 2021. No application was made that the hearing be heard other than in public. The Complainant agreed to proceed in the knowledge that a decision issuing from the WRC would disclose his identity. The Complainant gave his evidence on affirmation.
The Complainant attended the hearing and he presented as a litigant in person. The Respondent did not attend and was not represented at the hearing.
At the time the adjudication hearing was scheduled to commence on 14/02/2025 it became apparent that there was no appearance by or on behalf of the Respondent. I am satisfied the Respondent had been properly served with notice of the time, date and venue of the adjudication hearing. Furthermore, a telephone call to the Respondent’s mobile phone went to voicemail and a message was left from the WRC advising the hearing was about to commence and requesting that he contact the WRC on receipt of the voice message. I waited some time to accommodate a late arrival. The Respondent did not attend. A postponement had not been sought. Accordingly, I proceeded with the hearing in the absence of the Respondent.
I am satisfied that a contract of employment existed between the parties such that a wage as defined by the 1991 Act was payable to the Complainant by the Respondent in connection with the employment. The Complainant’s Workplace Relations Commission Complaint Form dated 10/05/2024 was submitted within the permissible statutory time limits.
Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute. I can confirm I have fulfilled my obligation to make all relevant inquiries into this complaint.
No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.
The Complainant confirmed at close of hearing that he had received a fair hearing of his complaint and that he was satisfied he had been provided with the opportunity to say everything he wished to say.
Background:
This matter came before the Workplace Relations Commission dated 26/09/2024. The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to his employment with the Respondent. The aforesaid complaint was referred to me for investigation. A hearing for that purpose was scheduled to take place on 14/02/2025.
The Complainant was employed by the Respondent as a Sales Development Representative at all material times. The Complainant commenced his employment with the Respondent on 12/08/2024. The employment ended on 24/09/2024. The Complainant worked a 39-hour week for which he was paid €2,916.00 gross per month.
Having waited a reasonable period of the time on the day of hearing name 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 on 17/12/2024 and attempts were made to contact the Respondent on the day of hearing.
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Summary of Complainant’s Case:
CA-00066301-001 pursuant to section 6 of the Payment of Wages Act, 1991 (“the 1991 Act”). The Complainant submits on his WRC complaint form that there was an unlawful deduction from his wages on 25/09/2024 in the amount of €5423.07. The Complainant submits at hearing that this amount should be revised to €1775.00 as he has, since filing his complaint, received some of the payment owed but he has been left short. The Complainant exhibited a screenshot of a text message to the Respondent of 30/09/2024 acknowledging receipt of some of the monies owned and alerting the Respondent to the fact that he had been left short €1250.00 guaranteed commission and the three days annual leave he had accrued together with payment for 01/10/2024 as promised. The Respondent texted back by way of response as follows: “OK I’ll get onto him. Everything you have outlined above is correct.” The Complainant submits he has heard nothing since, and the money owned has not been credited to his bank account.
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Summary of Respondent’s Case:
CA-00066301-001 There was no appearance by or on behalf of the Respondent at the hearing. The Respondent did contact the WRC by correspondence received on 01/11/2024 outlining their surprise at the notification of the Complainant’s complaint as all payments were made to him in line with his contract of employment. The aforesaid correspondence from the Respondent very helpfully provided a table outlining a breakdown of the payments made to the Complainant for the period of his employment covering his salary for August and September and including a commission component as follows:
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 14/02/2025 I will proceed to set out hereunder my findings and conclusions.
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Findings and Conclusions:
CA-00066301-001 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 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: 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 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
At the outset I note the breakdown of payments to the Complainant provided by the Respondent set out in the above table simply does not add up. The commission amount of €1,175.00 is not included in the calculation of the total amount paid. I note the Complainant submits the amount agreed for that commission is €1,250.00 and I note the Respondent has accepted that in the text message referenced above.
I note the Respondent has accepted the Complainant is owned for annual leave accrued and for payment for one day for the 1/10/2024. The Complainant has accrued 2.9 days of annual leave in the amount of €390.38 and payment for one day in October €134.61 = €524.99. I find the amount properly payable to the Complainant to be €1,250.00 + €525.00 = €1775.00.
The Complainant’s uncontested evidence on affirmation is that he has not received these monies.
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 €1,775.00 net within 42 days from the date of this decision.
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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.
CA-00066301-001 For the reasons stated above I decide this complaint is well-founded. I direct the Respondent to pay to the Complainant in the amount of €1,775.00 net within 42 days from the date of this decision.
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Dated: 06-03-2025
Workplace Relations Commission Adjudication Officer: Eileen Campbell
Key Words:
No appearance by Respondent; incorrect calculation; |