ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009209
A Social Media Designer
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 02/01/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
In accordance with Section 6 of the payment of Wages Act, 1991, 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 Complainant, a South African National submitted a claim for Non-Payment of Wages on 22 June, 2017. The Respondent, a Company which supplies Canopies did not file a response or make an Appearance at the hearing.
Summary of Complainant’s Case:
The Complainant gave an outline of her case. In March ,2017, she responded to an Advertisement placed by the Respondent for a Part Time Office Administrator with a Social Media function. She attended an Interview and as there was no office space available, she agreed to work from home in return for €12.00 per hour for a 10 hr week. She submitted details of her work plan and commenced work based on conducting the Social Media aspect of the business and filed fortnightly reports and invoices .
The Complainant confirmed that she received three payments of €240. While she had submitted her details, she did not receive a contract of employment. She had requested that she be set up on the pay roll system but the Respondent had not advanced this.
Towards the end of May, the Respondent began to fall behind with payments. The Complainant raised this without success. The Complainant submitted that she had an argument with the Respondents on non-payment of wages and they in turn had raised issues with her work and refused to pay her. She submitted a copy of an email dated 21 June, 2017 in support of this encounter . She had no further contact with the Company from June 21 and filed her complaint to the WRC on 22 June.
The Complainant described her role with the company as an employee and had taken advice from her Accountant that she may have to register for self-employment if the Company continued to refuse to pay her. She ceased working for the Respondent at that point.
The Complainant contended that she had faced financial hardship directly resulting from the Respondents refusal to pay her.
Summary of Respondent’s Case:
There was no appearance by or on behalf of the Respondent at the hearing and no response was filed to the claim.
Findings and Conclusions:
I have considered the submissions raised by the Complainant at hearing. I requested further information to assist me in my decision. I received a copy of the job advertisement and surrounding documentation which demonstrated a clear link to the Respondent.
I am satisfied that the Respondent was on correct notice of the claim and permitted a waiting period at the beginning of the hearing to facilitate a reasonable delay . The Respondent has not engaged in the claim .
The Complainant has claimed €480 in un paid wages and €120 as payment in lieu of notice. She was not issued with a P45 after employment.
Section 5(1) of The Payment of Wages Act, 1991 sets out that an Employer is not permitted to make a deduction to wages outside reasons of statute, contractual terms or following consent.
The Act has application to a person who satisfies contract of service status, which is defined in the Act in Section 1 of the Act.
contract of employment” means—
(a) a contract of service or of apprenticeship, and
( b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,
whether the contract is express or implied and if express, whether it is oral or in writing;
An Employee is defined as:
“employee” means a person who has entered or works under (or, where the employment has ceased, entered or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for this purpose of this definition, a person holding office under, or in the service of, the State
The Complainant stated that she had submitted terms of employment to the Respondent but that had not crystallised into a formal contract. Based on the uncontroverted evidence provided by the Complainant, I have found that she held employee status under the Act and is covered by the protections of the Payment of Wages Act, 1991.
Section 5(6) of the Act outlines a definition on wages properly payable.
(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.
I accept the complainants evidence that she had received three consecutive payments of €240, this was not contested. I also accept that her pay stopped without notice at the end of May when the Respondent brought the employment to a sudden end.
I have found that the Respondent has breached Section 5(6) of the Act in contravention of Section 5(1) and the non-payment of wages constitutes an unlawful deduction in wages. The claim is well founded.
Section 6 of The Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have found that the complaint is well founded and I order the Respondent to pay the Complainant €600.00 in compensation in respect of the breach.
Workplace Relations Commission Adjudication Officer: Patsy Doyle