ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027675
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: 25/01/2021
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
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 Respondent did not login to this remote hearing. I am satisfied that every effort was made to contact the Respondent, as identified in this complaint. The Complainant submitted substantial documentation relating to the complaint.
The Complainant was employed as a Barista from 13 January 2020 to 29 February 2020. She was contracted to work various hours and was paid on a fortnightly basis at a rate of €10.50 per hour. She is claiming that she was not paid for a substantial number of hours worked contrary to the Payment of Wages Act 1991
Summary of Complainant’s Case:
The Complainant submits that when she commenced employment the clocking in and out system was not properly explained to her. Over the 7 weeks of her employment she submits that she was consistently underpaid and that none of her payslips showed the correct number of hours she worked. The Complainant asserts that she worked 196.5 hours in that period but that she was paid for only 94.5.
At the beginning of her employment, the Complainant was told that she had to work a week in hand, so she was not unduly concerned when her first payslip was for less than expected, as she had also been put on emergency tax. She further asserts that by the time her second payslip was issued she again saw that her hours were incorrect. She became concerned at this juncture and she tried to discuss the matter with the Respondent, but he did not properly engage with her. The Complainant submits that she gave the Respondent very detailed tabulated accounts of the hours, as requested, but that the Respondent was dismissive and kept seeking further records. When she persisted with her claim, she reports that she was dismissed from her employment instead, without notice.
The Complainant asserts that though she was issued a final payslip on 10th March 2020, it again showed an underpayment. No week in hand had been paid although some holiday money had been included. The Complainant submits the money had not been paid into her bank account. She sent emails to the Respondent after the termination of her employment, but they have gone unanswered.
The Complainant submitted correspondence from the Respondent, the work schedule for the period in question, a chart indicating discrepancies in the hours she worked as against her scheduled hours and the payslips for the period she worked.
The Complainant accepts that she did not use the mandatory clocking in system when required and she accepts that she had been late on occasions. The Complainant said she misunderstood the requirement to clock in and out at break times, and at the end of the day.
She submits that the monetary value of her pay not received is €1070.48 with an added sum of €164.64 which represents holiday pay.
Summary of Respondent’s Case:
The Respondent did not login to the hearing.
Findings and Conclusions:
The Applicable Law:
Section 5 (6) of the Payment of Wage Act 1991 (the Act) states;
o (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”.
Section 6 of the Act provides as follows:
Complaint to adjudication officer under section 41 of Workplace Relations Act 2015
· 6. (1) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages 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 (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,
· (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.
(2) (a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.
(b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment.
The Complainant gave plausible verbal evidence and submitted detailed documents of the hours that she reportedly worked. She recognized that the Respondent disputed her account of the hours. This was evident in emails submitted by the Complainant. She also accepted that she had not used the clocking in system that was operational at the place of work. In the initial week the Complainant records working 4 days for which she does not appear to have been rostered. Thereafter, the Complainant’s record of days worked appears to reflect the scheduled days worked; with one exception, a day scheduled but not worked. I note also that in the copies of correspondence submitted between the Complainant and the Respondent, the Respondent appeared to be evasive in dealing with her grievance on hours worked.
After hearing the uncontested evidence of the Complainant, I find that over the seven -week period that she was employed she was not paid the full wages properly payable to her as per section 5(6) of the Act. The Complainant estimates that she is owed €1070.48 in wages, plus €164.64 in holiday pay. However, there were inaccuracies in her schedule and in use of the clock-in system from which hours of work were calculated. On this basis, and in full consideration of the verbal and documentary evidence, I find that it is reasonable under the circumstances to direct the Respondent to pay the Complainant compensation of €800.
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-00035445-001: Section 6 of the Payment of Wages Act 1991 requires that I make a decision on this complaint. I find that the complaint is well founded, and I direct the Respondent to pay the Complainant compensation of €800.
Dated: 8th February 2021
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Payment of Wages Act 1991