Complainant

Respondent

Parties

Daire Hardesty

Digisure (Ireland) Limited

Representatives

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-00068137-001

16/12/2024

The Complainant was employed with the Respondent from 11 January 2024 until he terminated his employment on 19 January 2025. He contended that he had not been paid by his employer for the wages relating to periods of employment from May 2024 onwards.

The Respondent is an insurance software company.  The Respondent did not provide any submission and did not attend the hearing.

In his complaint form, the Complainant submitted that at the time of submission of his complaint he was under "temporary layoff from his position of Senior Software Engineer.”

He alleged that he had not been paid over the last 6 months and that there have been many contradicting statements from the Respondent as to why this was the case. He noted that he and his colleagues were also given “numerous dates for the owed salary to be paid, but each time said date arrived and for days after, management were silent until eventually coming forward with another excuse.”  He submitted that he and other employees were laid off until December 22nd, and that thereafter the management stopped communicating completely.

He outlined that he asked for clarification about salary owed and out of date PRSI (as he could not avail of his government entitlements as his PRSI had not been updated by the Respondent) only to be told to stop being disrespectful and wait for his salary like everyone else. He noted that the staff were promised that they would also be paid "all weeks, in arrears, as a six-day week to show our gratitude for your continued support in this matter" and he referenced an email sent from the Respondent on Tuesday, 18 June 2024.  He also noted that in that email confirmation was provided that any bank overdraft or other out of pocket expenses due to the unpaid salary would also be paid.  He further noted that the Respondent also confirmed by email that he would be reimbursed up to €2000 when he was forced to sell some of his personal possessions in October in order to pay his rent.

The Complainant stated that he could not wait any longer and that he had lost all trust in the company long ago. He stated that the issue had caused him months of stress, had damaged personal relationships and that he had to borrow money from family and friends. He further stated that the issue had also damaged several close friendships because the "guaranteed dates" for getting paid given by the company always passed with no resolution.

The Complainant submitted that he had also incurred late payment fees for bills, credit cards and charges for failed direct debits when his account had no balance.

The Complainant submitted that he had been looking for alternative employment as his rent in Dublin was high and he was on the lowest level of JobSeekers payments as a result of the fact that his PRSI had not been kept up to date by the Respondent for the previous 6 months.  He submitted that as a result of the actions of the Respondent his life has been completely shattered in recent months, that he had no money to go out and that any money he had was used to pay for groceries, bills and rent.  He submitted that even though he was living extremely frugally, he believed there would come a point where he would lose his Dublin apartment and have to look at other alternatives to survive this situation.

The Complainant provided some payslips relating to periods prior to the issues which arose in the instant case, together with copies of emails, his contract of employment and a timeline of events in addition to his complaint form.

Complainants’ evidence given under oath at hearing

General Background

By way of background to the issues arising under this complaint the Complainant advised that in the Respondent company there had been a dispute between the senior management resulting in the CFO being forced out of the company.  However, this generated a number of operating issues as the CFO was the named authorised person for the company bank accounts and that the staff believed that the company was having difficulty accessing it’s funds.

He confirmed that the non-payment of salary first became an issue in May 2024 when payment for the previous 2-week period was not made.  He drew attention to the following timeline of events and relevant emails:

·       31 May 2024 - email from the Respondent to all employees which stated that there was an issue with the bank processing payroll and that it would be resolved in 72 hours. 

·       13 June 2024 - email from the Respondent to all employees confirming that the Bank had advised that the issues regarding the pay run had been resolved and that all upcoming pay runs, from that afternoon onwards, were expected to proceed smoothly

·       No pay was received at that time

·       18 June 2024 - email from the Respondent which stated that $30 million had been transferred to the company’s JP Morgan bank account and that an Anti-money laundering procedure was triggered locking all funds.  In that email the Respondent confirmed that as compensation, he would pay all employees their salary as 6-day weeks for all weeks in arrears. 

·       26 June 2024 - the Respondent transferred €1000 to all employees as “interim cash” via Revolut

·       No further monies were received

·       5 July 2024 -  the Respondent sent an email to all employees stating that due to financial delays he had activated a contingency plan and that an investor had transferred £2 million to the company’s Bank of Ireland account and that owed salary would be paid promptly.  This did not happen.

·       8 July 2024 - The Respondent sent €500 via Revolut

·       15 July 2024 - The Respondent sent €400 via Revolut

·        15 July 2024 – The Respondent issued an email confirming that the company’s main funding was still unavailable and that he was taking out a bridging loan to provide short term salary payments.

·       23 July 2024 – The Respondent emailed all employees and advised that they could work from home due to the lack of salary and it further advised that staff would get an update the next working day, that “everything was tracking well”.

·       26 July 2024 – The Respondent sent €300 via Revolut

·       20 September – The Respondent emailed the Complainant a summary of the backpay that he was owed. In that email the Respondent acknowledged that the figures might not be correct but could be corrected at a later date.

·       21 September 2024 -  the staff were told in a meeting that backpay would be paid out that day and that staff would receive all of unpaid salary by the following Monday at the latest.

·       24 September 2024 – Email from the Respondent to the Complainant offering to pay his rent as the Complainant’s savings had been depleted after several months without pay. The transfer was never made, and he was told the Respondent would send a remission explaining why the transfer didn't happen, however this also was never sent. The Respondent then sent a further email apologising for the delay and explained that the bank account in Italy needed the name to be changed. The Respondent stated that this would take between 4-8 days.

·       1 October 2024 – the Complainant sent an email to the respondent asking for proof of transfer regarding his rent as the agency had informed him that his rent was a week late.

·       1 October 2024 – the Respondent sent an email stating that his email confirming he would accept DigiSure to pay his rent that month had been missed. The Respondent suggested he withdraw cash using his credit card to pay the rent and that he would be reimbursed the cost of the rent and the fees associated. In that email the Respondent also stated that there was money coming in and there would be a pay run actioned.

·       2 October 2024 - During a team video meeting, he informed the managers that his PRSI credits were out of date and he was unable to access government services that I was legally entitled to as a result. The Respondent then sent an email to confirm that the new CFO would generate all outstanding payslips and that this would update PRSI in Revenue.

·       On 7 October 2024 – another employee Mr. CM, sent out an email asking for proof of funds as staff began to suspect there was no money at all.

·       7 October 2024 – The Respondent issued a responding email where he stated that  he could not provide any proof, but sent a redacted contract instead. This contract only confirmed that there was a commitment made to funding, but didn't give any guarantee that the funds existed.

·       10 October 2024 – The Respondent sent an email stating that the change of legal representative in Italy was still in progress.

·       10 October 2024 -The Complainant sent an email asking for clarity regarding the remaining steps for the Change of Legal Representative in Italy as staff had previously been told that this change had been accepted.

·       10 October 2024 - The Respondent sent an email outlining the process that was required before staff would receive unpaid salary. This involved the legal representative to be changed.

·       10 October 2024 – The Respondent sent a second email outlining the specific steps required before staff would be paid.

·       11 October 2024 -  The Respondent sent the Complainant an email explaining why the rent wasn’t paid and that the following week he would reimburse the Complainant for the cost of the rent plus fees as he had paid it with his credit card.

·       14 October 2024 – The respondent sent an email stating that he had a meeting with a specialist Italian 'Notary Public' with the proposed legal representative on Friday 11 October in order to "accelerate the process of Legal Representative Change".

·       18 October 2024 – The Respondent emailed all employees stating that they have moved the office from Rome to The District of Milano as "things happen quicker there". The Respondent also advised that a standard payroll (two weeks salary) would be paid on the following Monday.

·       21 October 2024 – The Respondent emailed all employees stating that payroll was delayed. This was only communicated after the Complainant had sought an update.

·       22 October 2024 – The Respondent an email saying it was waiting for a name change update on the bank account in Italy where the unpaid salary was being held. This email also claimed that staff would receive a two-week salary.

·       23 October 2024 – The Respondent sent an email stating that it would no longer be sharing daily updates about progression, daily updates were previously agreed due to the fact that employees had not been paid adequately and staff were at risk of missing rent payments, struggling with bills and were living on a very small budget.

·       4 November 2024 – The Respondent sent an email stating it had secured additional funding that was currently going through tax clearances in Sweden and a pay run would be done as soon as it cleared. A pay run for this never happened.

·       4 November 2024 – The Respondent sent an email confirming that it would re-imburse the Complainant up to a value of €2,000 for a camera lens he had to sell to cover his rent for that month. The lens was originally purchased for €1600, and the Complainant sold it for €1080.

·       15 November 2024 -  The Respondent sent an email stating that the bank had agreed to release the account and its funds and that the internal process would be done by midweek the next week (November 20th) and that a standard pay run and all back pay would be paid to employees: "During this coming week a pay run will be done and all back pay should be sorted."

·       22 November 2024 – The Respondent sent an email stating that the Complainant would be temporarily laid off until 23rd December 2024.

·       27 November 2024 – The Respondent sent an email stating it was "Best to Communicate by Email". The Complainant advised that this was after a week of sending messages by WhatsApp that went ignored. The Complainant sent a reply asking why the Respondent was reading his WhatsApp messages for over a week and not answering or returning calls. He also asked for a call back or a video call to discuss his outstanding pay.  He stated that he had been requesting this for 7 days.  This email went ignored.

·       28 November 2024 – The Complainant sent a follow-up email asking for a suitable date or time to discuss matters as he had received no reply to any of his previous emails. The Complainant reminded the Respondent that they had a legal obligation to pay employees hoping this would encourage them to communicate.

·       28 November 2024 – The Respondent replied stating that it had filled out the Complainant’s jobseekrs claim in a timely manner. All other requests were disregarded.

·       28 November 2024 – The Complainant sent a further email asking when would suit to have a call.

·       28 November 2024 -  The respondent sent an email informing the Complainant that his requests "gets my back up" and the Respondent stated that the Complainant was disrespectful for repeatedly asking to speak to a member of  management about his salary. The Complainant noted that this was when he realised there was no real intention of ever paying the employees what was owed.

Preliminary Issue – Time Limit

I queried the timeline for submission of the complaint to ascertain if the complaint was within time.  The Complainant outlined that the Respondent had repeatedly given assurances that once the problems with the named persons on the bank accounts were sorted then staff would be paid.  He stated that it was only when the monies promised were not received in October 2024 and he received the email of 23 October 2024 that he became clear that the problem was not going to resolve itself.  He stated that the explanations initially given by the Respondent seemed plausible and that as he had enjoyed a positive working relationship up to that time he felt it was the reasonable thing to do to allow the Respondent the opportunity to resolve matters.

In any event the Complainant sought an extension of the time limit permitted under the Act, on the basis that he had in the early days of the issue arising (May 2024) he was under the impression by virtue of the communications to staff from the Respondent that the problem was temporary in nature, was the fault of the bank and therefore would be resolved. 

The Respondent did not attend and submitted no evidence. The Adjudicator was satisfied that notice of the date, time and place of the Hearing had been properly communicated to the Respondent.

Preliminary Issue – Time limit

I noted that the first occurrence of the non-payment of wages occurred on 31 May 2024 and that the complaint was received by the WRC on 16 December 2024.  I noted, however, that the Respondent provided initial assurances that the issue was as a result of a banking error and that it anticipated the matter being resolved and I noted that the Respondent continued to provide assurances in writing to the Complainant and to staff in general up until staff were laid off on 22 November 2024. 

I noted the Complainant request for an extension of the time limit to 12 months in accordance with Section 41 (8) of the Workplace Relations Act.

The Law

Section 41(8) of the Act provides that “An Adjudication Officer may entertain a complaint or dispute to which this section applies presented or referred to the Director general after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The concept of what is “reasonable cause” was tested by the Labour Court in the case of Cementation Shanska V Carroll, DWT 38/2003 where the Court stated “it is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.  The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Based on the above I understand there to be a two-stage test in determining “reasonable cause”; firstly, the reason for the delay must not be arbitrary but must have a causal link to the delay.  In other words, there must be a practical connection between the reason given and the delay in submitting the complaint.

In the instant case the Complainant confirmed that the Respondent continually provided written and verbal updates to staff clarifying that the non-payment of wages was due to banking issues and that all staff expected those issues to be resolved.  It is clear from the Complainant’s evidence, under oath, and from the copies of emails provided that the Respondent did indeed provided assurances that the wages issues would be sorted once the issues around the legal representative on those bank accounts were addressed.  The Complainant, together with other staff gave the Respondent the time necessary to address the issues.  In this regard I find the Complainant’s explanation for the delay to be entirely plausible and I noted that but for the explanations provided by the Respondent the Complainant would have made his complaints within time. 

In accordance with the provisions of section 41(8) and in all the circumstances described, I consider that there is reasonable cause to grant an extension of the time limit for submission of these complaints and I so decide.                                                                                                                                                                                     

The Substantive Issue

I considered carefully the Complainant’s complaint form, his submission and his evidence given under oath. I noted that the Complainant confirmed the total amount of wages owing to him was €46,664.

I noted further that the Complainant confirmed under oath that the interim payments made via Revolut were paid by the Respondent as compensation for the delay in making payments. 

I am satisfied, based on his oral evidence and on the basis of emails provided, that the Complainant was not paid the wages due to him from May 2024 until the termination of his employment in December 2024.  The emails clearly demonstrate that he was continuously raising his concerns regarding the non-payment during the period of time in question and the Respondent was providing confirmation that it accepted that the monies were owed and that the matters would be resolved.  In the absence of any evidence to the contrary being adduced before me I must conclude that the Complainant did not get paid the relevant wages.

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

“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

(c) in the case of a deduction, the employee has given his prior consent in writing to it”

In this case the Employee, the Complainant, did not agree to a Deduction i.e., the non-payment of his full wages.  The Complainant was clear and unambiguous that the contrary was, in fact, the case; where he actively sought the payment of the monies owed to him by the Respondent. The emails provided by the Complainant clearly demonstrated that he was in serious financial difficulty and needed to receive his wages.

The Respondent did not attend the hearing, did not make contact with the Workplace Relations Commission to explain its non-attendance and did not submit any evidence in relation to the complaint.

On the basis of the evidence adduced before me and in the absence of any evidence being adduced to the contrary, I must find that this complaint is well founded.

The complaint is deemed to be well founded.  In those circumstances it is directed that the sum of €46,664, being the outstanding wages from May 2021 until the date of termination of employment be paid without delay to the Complainant.  This amount will be subject to the normal statutory deductions that applies to wages.

It is expected that the payment will be made within six weeks of the date of this Adjudication decision.

Payment of wages