ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00055409

Parties:

	Complainant	Respondent
Parties	Ciara Dennehy	BOS Fitness Centre Ltd t/a Maxlife Fitness

Representatives

Self Represented

Not present

Complaint(s):

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-00067396-001	14/11/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00067396-002	14/11/2024
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022	CA-00067396-003	14/11/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00067396-004	14/11/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00067396-005	14/11/2024

Date of Adjudication Hearing: 12/02/2025

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The Respondent was notified of the complaint and the hearing by the WRC by way of letters issued to Mr. Brian O Sullivan at the trading address provided by the Complainant. In advance of the Hearing Mr. Brian O Sullivan engaged in writing with the WRC (citing the ADJ number for the Hearing) and advised he would not be attending the Hearing. He stated the following “I've already explained I will not be attending in my last email unless it's in proper legal settings (court) I've enough going on at the moment with my own business without someone making false allegations. If ye want me attend anything in regards to this it will have to be in a legitimate legal setting as I'm fully confident I've done everything correct on my side and we will leave it up to the Law to decide. I won't be responding only in a legal setting from now on. As I'm fully entitled to what I've mentioned above.” The Representative was informed by the WRC that the scheduled Hearing was a legally constituted Hearing and would be proceeding as scheduled. The Respondent did not attend.

The name of the Respondent on the complaint form submitted to the WRC was Maxlife Fitness. At the Hearing I investigated the Respondent name, as information the Complainant had submitted in advance of the Hearing (in a redundancy document and a payslip) stated a different company name than the name used by the Complainant in her complaint form. The documentation showed her employer as BOS Fitness Centre Ltd and I established that Maxlife Fitness was a Trading Name of BOS Fitness Centre Ltd. The Complainant confirmed that Mr. O Sullivan was the owner of the firm employing her. As I was satisfied from the correspondence that the Legal Entity was aware of the complaint and the arrangements for the hearing, I proceeded to take the evidence of the Complainant. I am satisfied that BOS Fitness Centre Ltd was on notice of the Hearing and this is the name now used for the purposes of the Decision.

Background:

The Complainant was employed as an Assistant Manager and submitted complaints for unfair dismissal, non payment of wages, non payment of holidays and non payment of statutory sick leave.

Summary of Complainant’s Case:

The Complainant was employed from 1/10/2021 to 1/9/2024 and earned 600 Euros gross for a 40 hour week.

The Complainant set out her complaints as follows;

CA-00067396-001

Payment owed for working 8 hours August 26th (one regular work day) is €120.

CA-00067396-002

Annual leave owing was calculated as €1,488

The Complainant stated the basis for this is that the Complainant had worked a total of 1,280hrs from January 2024 - August 2024, minus 40 as she had previously used 5 annual leave days.

CA-00067396-003

Sick pay owed has been calculated as €336, which is 70% of the Complainants usual pay for 4 regular work days August 27th, 28th, 29th, 30th (€480).

CA-00067396-004

The Complainant withdrew the complaint of unfair dismissal at the Hearing.

CA-00067396-005

Payment owed for week ended in 25/08/2024

Gross payment as shown on payslip is €600, net payment owed is €517.12.

Summary of Respondent’s Case:

A Complaint was received by the Director General of the Workplace Relations Commission by the Complainant on November 14th 2024 alleging that her former employer contravened the provisions of the Payment of Wages Act 1991, Organisation of Working Time Act 1997, Unfair Dismissals Act 1977 and the Sick Leave Act 2022 in relation to her. The said complaints were referred to me for investigation. A Hearing for that purpose was held on February 12th 2025. There was no appearance by or on behalf of the Respondent at the Hearing.

Findings and Conclusions:

Section 5 of the Payment of Wages Act 1991 states the following:

“ 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

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

And

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is ofan amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941 , amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(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.”

Legitimate deductions from wages of employees are defined in Section 5 of the Payment of Wages Act 1991 above. Based on the uncontested evidence of the Complainant, the deduction of 120 Euros and 600 Euros in complaints 001 and 005 respectively did not fulfil any of these legitimate criteria and she was not paid wages that were properly due to her of 720 Euros.

CA-00067396-001 (Payment of Wages Act) 1991

I award the Complainant 120 Euros.

CA-00067396-005 (Payment of Wages Act 1991)

I award the Complainant 600 Euros.

CA-00067396-002 (Organisation of Working Time Act 1997)

Section 19 of the Organisation of Working Time Act 1997 states the following;

“1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as ‘‘annual leave’’) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the

employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

I have calculated the Complainants entitlement as 1497.60 Euros and award her 1497.60 Euros.

CA-00067396-003 (Sick leave Act 2002)

The preamble to the Sick Leave Act 2022 states that its purpose is,

… to provide that employees shall, subject to certain conditions, be entitled to up to and including 3 statutory leave days[.]

Clearly, the legislation is intended to confer a benefit on employees with no contractual entitlement to paid sick leave. Statutory Instrument 607 of 2022 fixes the daily rate of statutory sick pay at €110 or 70% of the employee’s gross daily rate of pay, whichever is the lesser.

The Act provides for:

2023: 3 days paid sick leave based on 70% of earnings to a maximum of €110 per day

2024: 5 days paid sick leave based on 70% of earnings to a maximum of €110 per day.

The Complainant is entitled to 4 days sick pay at 70% of 110 euros per day which amounts to 308 Euros. I award the Complainant 308 Euros.

CA-00067396-004 (Unfair Dismissals Act 1997)

The Complainant withdrew the complaint of unfair dismissal.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00067396-001

I find in favour of the Complainant and award her €120.

CA-00067396-002

I find in favour of the Complainant and award her €1,497.60.

CA-00067396-003

I find in favour of the Complainant and award her €308.

CA-00067396-005

I find in favour of the Complainant and award her €600.

CA-00067396-004

The Complainant withdrew the complaint of unfair dismissal.

Dated: 13 March 2025

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Non payment of wages