Complainant

Respondent

Anonymised Parties

A Kitchen Sales Person

A Fitted Kitchen Company

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-00029505-002

05/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029505-003

05/07/2019

The complainant joined the respondent company on December 13^th 2017 and she resigned on January 18^th 2019.  She worked two days a week for six hours each day, for which she was paid €120 gross, equivalent to €10 per hour.  At the commencement of her employment, the complainant said that she and the managing director agreed that she would receive 5% commission on the pre-VAT price of any kitchen that she sold. 

Over the course of the 13 months of her employment, the complainant said that she did not receive payslips on a regular basis, she didn’t get all the commission that she believes she was due and she didn’t get paid for holidays and public holidays.  In contravention of the Terms of Employment (Information) Act 1994, she said that she didn’t receive a statement of the terms and condition of her employment.

CA-00029505-002:  Complaint under the Payment of Wages Act 1991

Payslips

The complainant said that she was paid weekly.  At the hearing, she had copies of payslips for eight weeks between May 11^th and June 29^th 2018.  She said that she received these from the company’s accountant in July 2018, following many requests.  In October and November 2018, she said that she got some payslips by e-mail and she also got a payslip at Christmas 2018.  For the majority of her time working for the respondent, she didn’t get a payslip.  She said that sometimes, her wages were not transferred to her account on time.

Commission

At Christmas 2018, the complainant said that she was due a payment of €4,207 in commission from the sales she had made during the year.  She said that she received €4,000, leaving her with a shortfall of €207.

Expenses

In her complaint form, the complainant said that it was agreed between her and the managing director that she would be reimbursed for diesel and mileage and, although she submitted a claim with receipts, she was not reimbursed.

Holidays and Public Holidays

The complainant said that she got no pay for public holidays during the time she worked for the respondent.  She said that she doesn’t know how many days’ holidays she was entitled to.  She said that she took two weeks’ holidays in November and she agreed that she may have been paid her wages while she was on holidays.

CA-00029505-003:  Complaint under the Terms of Employment (Information) Act 1994

Under this heading, the complainant said that she didn’t get a statement of her terms and conditions of employment, despite several requests to the managing director.

CA-00029505-002:  Complaint under the Payment of Wages Act 1991

Payslips

In response to the fact that the complainant did not receive regular payslips, the managing director produced a letter from his accountant dated October 3^rd 2019, the day before the hearing of this complaint.  In the letter, the accountant said,

“Wages were calculated each week using the Thesaurus Wages Package although wage slips were only issued to the employees when requested to do so by the employer.”

Commission

At the hearing, the managing director agreed that the complainant was due the shortfall of €207 from the commission she was paid at the end of 2018.  He said that a further payment of €200 is owed in relation to a sale that was not accounted for at the end of last year.

Expenses

The managing director agreed that around €250 was due to the complainant in mileage and receipted expenses.

Holidays and Public Holidays

In relation to holidays, the managing director said that in November 2018, when the complainant was going on holidays, he gave her €400, which amounts to more than three weeks’ wages.

The letter of October 3^rd from the company’s accountant stated:

“In December 2018, (name of the complainant) was paid all holiday payment due on her salary; we understand that bank holidays were not taken into account; we calculate that the payment due is €120 (1/5 of her weekly salary for 5 bank holidays).”

CA-00029505-003:  Complaint under the Terms of Employment (Information) Act 1994

The managing director said that he thought that an employee had to get a contract of employment when they completed one year of service and, as a small business employing two people, he was not aware of his obligations in this regard.

CA-00029505-002:  Complaint under the Payment of Wages Act 1991

Payslips

Section 4 of the Payment of Wages Act sets out the obligation of an employer to issue payslips to their employees.

(1) An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees. 

(2) A statement under this section shall be given to the employee concerned—  

(a) if the relevant payment is made by a mode specified in section 2 (1) (f), as soon as may be thereafter,  

(b) if the payment is made by a mode of payment specified in regulations under section 2 (1) (h), at such time as may be specified in the regulations,  

(c) if the payment is made by any other mode of payment, at the time of the payment.  

(3) Where a statement under this section contains an error or omission, the statement shall be regarded as complying with the provisions of this section if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.  

(4) An employer who contravenes subsection (1) or (2) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.”

The reason that the complainant in this case was not issued with payslips was explained by the company’s accountant who said that he issued payslips only when he was requested to do so.  I find this explanation worrying, as it indicates that neither the accountant or the managing director are aware of the obligations regarding section 4 of the Payment of Wages Act.  I find that, in failing to issue payslips to the complainant on a weekly basis, in line with the pay frequency, the employer has contravened section 4 of the Act.

Commission

The managing director agreed that an amount of €407 is due to the complainant from her sales up to the date of her termination in January 2019.

Expenses

While the managing director agreed that the complainant was owed €250 for diesel and expenses, such payments are not governed by any legislation and I can make no finding on this outstanding money.

Holidays and Public Holidays

Section 19(c) of the Organisation of Working Time Act 1994 provides that an employee who works less than 1,365 hours in a year “… shall be entitled to paid annual leave equal to … 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks).

The complainant in this case worked two days per week for six hours each day.  Based on an estimate of having worked for the respondent for 50 weeks over 13 months, she worked a total of 600 hours, of which 8% is equivalent to 48 hours.  As her hourly rate of pay was €10, her entitlement to holiday pay was €480.    

At the hearing of this complaint, the managing director said that, in November 2018, he paid the complainant €400 when she was going on holidays.  The complainant was unable to corroborate this; however, in the absence of any evidence that this amount was not paid, I find that the complainant is entitled to €80 in respect of unpaid holidays up to the date of the termination of her employment on January 18^th 2019.

In respect of public holidays, because the complainant worked two days a week, she was entitled to two fifths of a week’s pay for each public holiday and not one fifth, as stated by the respondent’s accountant.  Thirteen public holidays fell between December 13^th 2017, when the complainant started work, and January 18^th 2019, when she finished.  She earned €60 per day.  As she was entitled to two fifths of a week’s pay for each public holiday, she is entitled to €312 in resect of pay for public holidays during the time she was employed by the respondent. 

It is my view that these complaints under the Payment of Wages Act are well founded. 

CA-00029505-003:  Complaint under the Terms of Employment (Information) Act 1994

Section 3 of the Terms of Employment (Information) Act was amended by the Employment (Miscellaneous Provisions) Act 2018, resulting in a new obligation on employers to provide a written statement of certain terms and conditions of employment within five days of an employee’s start date.  In the case of this complainant, she commenced work with the respondent in December 2017.  Therefore, the un-amended provisions of section 3 of the Act apply and she was entitled to a written statement of her terms and conditions within two months of her start date.  Generally written up in the form of a contract, these statements are to include the following:

(a)  The name of the employer and the employee;

(b)  The address of the employer;

(c)  The place of work, or, where there is no fixed place of work, the statement must specify that the employee is required to work at various places;

(d)  The job title or the nature of the work that the employee is required to carry out;

(e)  The date that the employee commences in the job;

(f)  If the contract is temporary, the expected duration, or if the contract is for a fixed-term, then the end date of the fixed-term;

(g)  The rate or method of calculation of the employee’s pay;

(h)  The frequency of pay;

(i)  Any terms or conditions relating to hours of work (including overtime);

(j)  Any conditions relating to paid leave (other than paid sick leave);

(k)  Any terms or conditions relating to –

       (i)  Incapacity for work due to sickness or injury and paid sick leave;

       (ii)  pensions and pension schemes;

(l)  The notice that the employee is required to give and the notice that he or she is entitled to receive at the termination of their employment;

(m)  Details of any collective agreement which affects the employee’s terms and conditions of employment.

The complainant’s evidence is that he did not receive a statement of her terms and conditions of employment, despite asking for one. 

It is apparent from the evidence of the managing director in this case that he was unaware of his legal responsibilities to this employee regarding her entitlement to a written statement setting out his terms and conditions of employment.  The effect of not providing such a statement means that the employment relationship is tarnished with uncertainty and it is difficult for the employee to assert her rights during, and at the termination of his employment. 

I refer to the recent Labour Court decision in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT 1919, where Ms Hayes Kelly claimed that her employer was in breach of the Terms of Employment (Information) Act because there were omissions and errors in her contract of employment.  In his determination on the case, the Chairman, Mr Haugh, considered the errors and omissions to be “at the serious end of the spectrum” and awarded the maximum of four weeks’ pay in redress.  As the failure to issue any statement of terms and conditions of employment must be considered to be more serious than issuing an imperfect statement, I must follow the authority of the Labour Court and make the maximum award in the case under consideration here.

As I have upheld the complaints under the Payment of Wages Act, I decide that the respondent is to pay the complainant compensation in the following amounts:

€500 in respect of the failure to issue regular payslips.  As this award is made by way of compensation for a breach of a statutory entitlement and is not in the form of redress for non-payment of wages, it is non-taxable.

€407 gross for commission.

€392 gross for non-payment of holidays and public holidays.

The complaint under the Terms of Employment (Information) Act 1994 is also upheld and I therefore decide that the respondent is to pay the complainant €480 in compensation, equivalent to four weeks’ pay.  This award is also made by way of compensation for a breach of a statutory entitlement and is non-taxable.

Payslips, non-payment of bonus, statement of terms and conditions of employment