ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015266
An editorial assistant
An online fashion magazine
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
Date of Adjudication Hearing: 05/09/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
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 September 5th 2018 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaints.
The complainant attended the hearing with her mother as support. For the respondent, the Chief Executive Officer (CEO) and Founder and a current employee attended.
At the commencement of the hearing, the respondent clarified the correct legal name of her company and it was agreed that this decision should record this amendment.
The respondent company is an online fashion and lifestyle website and the complainant worked with on a freelance basis before agreeing to become an employee. She signed a contract on August 17th 2017 and commenced direct employment on September 1st. Soon afterwards, a significant contract that was expected to be agreed with a client didn’t materialise, resulting in cash flow problems. This complaint is about the fact that the complainant was not paid the wages agreed with her in her contract of August 2017.
Preliminary Issue: Has the Complaint Been Submitted on Time?
In her written submission, the respondent argued that the complaint was submitted outside the six-month time limit set out in section 6(4) of the Payment of Wages Act 1991. However, she also indicated a willingness to pay the complainant any shortfall of wages that she is owed, but she disputes the amount claimed.
This complaint was submitted to the WRC on June 18th 2018 and it relates to the non-payment of wages in September, October, November and December 2017. A strict application of the law confines me to consideration only of the non-payment of wages in December. However, from the correspondence submitted at the hearing, it is apparent that the complainant was making efforts to have this matter resolved up until mid-March 2018.
Taking account of the respondent’s willingness to pay the complaint what she is due, and the efforts made by the complainant between December and March 2018 to get her wages paid, I am satisfied that exceptional circumstances prevail which permit me to consider this complaint, albeit that, the complaints related to wages not paid in September, October and November 2017 have been submitted outside the six-month time limit.
Summary of Complainant’s Case:
The complainant prepared a written submission which she read at the hearing. She said that on August 17th, she and a colleague met the CEO and she agreed to work for the company as an editorial assistant in return for an annual salary of €21,000. She started the job on September 1st, and for some reason, which was not explained, she was paid €1,000 on that day. There were no deductions for tax or PRSI. The complainant argues that as salary of €21,000 is equivalent to €1,750 gross, this is what she should have received. On this basis, she claims that she was left short of €750 for the month of September. She didn’t receive a payslip. On October 2nd, she received €500, with no indication of what the deductions were and no payslip.
On October 10th, the CEO had a meeting with the complainant at which she told her that the business was having cash flow difficulties. The complainant said that she agreed to work three days a week instead of five days, but, she said that she expected to be paid the same wages. She took on another job for two days a week. She learned later on that would be paid by the respondent for three days and she said that if she had known the effect of the reduced working hours on her salary, she would have left on October 10th. On November 8th, she received €775, again, with no indication of what the deductions were, and still no payslip. She received no wages for the month of December, but on February 2nd, she received €1,000.
Her claim is that she should have been paid €1,750 for four months from September to December 2017, a total of €7,000. She received €3,275, resulting in a shortfall of €3,725.
Summary of Respondent’s Case:
The respondent explained the background to the cash flow difficulties and the efforts she made to try to keep the business afloat, including considering selling the company and getting loans from her family. When she met the complainant on October 10th, she said that they agreed that she would work Monday, Tuesday and Wednesday from then on, with the absolute expectation that this would result in a reduction in earnings. From October 10th therefore, the respondent’s position is that the complainant is entitled to any shortfall in her wages in respect of a three day week, and not five days.
The respondent said that, while the complainant sent her formal resignation on January 4th 2018, she was not at work after December 12th 2017, so the shortfall for December relates to the work done from December 1st to 12th. When she didn’t carry out any work after December 12th, the respondent said that she sent the complainant an e mail and requested a meeting with her, but the complainant responded, “it is inconvenient for me to meet this side of Christmas, however, I could early in the new year.” The complainant resigned on January 4th 2018.
In her written submission, the respondent set out a summary of what she believes she owes in unpaid wages. By her calculation, she owes the complainant €826.
Findings and Conclusions:
Any difficulty with the payment of wages to an employee goes to the root of the employment contract and is a serious breach of trust, in addition to putting the employee under financial and emotional strain. I accept that the respondent was faced with an unplanned situation and as a new business, she did not have the resources to cover the basic costs associated with the responsibilities of being an employer. It would not have been unreasonable for the complainant to leave her job on October 10th 2017, and I find it difficult to understand why she stayed on. At the hearing, she said that she got a child-minding job for two days a week, and on this basis, she must have understood that her earnings would reduce when she agreed to work a three-day week.
The respondent accepts that she owes the complainant her unpaid wages, and her calculations were submitted in a paper at the hearing. I accept these calculations, with one correction in respect of the month of October when, it is my understanding that the complainant worked for 15 days and not 10, as recorded by the respondent. As a result, I find that the amount owed to the complainant in unpaid wages is €1,235 gross.
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.
I have decided that the respondent is to pay the complainant €1,235 gross, in respect of unpaid wages up to December 31st 2017.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Non-payment of wages