Complainant

Respondent

Parties

Cormac  Mohally

Circus Factory CLG

Representatives

Self-Represented

Colleen Sparling O Riordan, Ann O’Neill Solicitors.

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-00068909-004

29/01/2025

The Complainant was employed as an Artistic Director with the not-for-profit Respondent company from 1 January 2021 until his resignation on 17 September 2024. He worked 25 hours a week for a gross salary of €2000; net €1807.52. The Complainant submits he is owed monies for expenses, time in lieu, annual leave, and public holidays.

The Respondent refuted the claims, stating instead that, according to their calculations, the only amounts outstanding were, at most, three days of annual leave and one public holiday.

 The Complainant submitted in evidence that he was owed two months’ wages, which he estimated to be approximately €4,000. He further stated that there were additional outstanding expense claims. He acknowledged that some of these expenses may have been offset by an overpayment he received in September. He estimated the total amount owed to be €4,681, comprising both unpaid wages and expenses. The Complainant also accepted that the original complaint referred to approximately €570 in expenses.

Under cross-examination, the Complainant admitted that he had no documentation, nor any record of the specific times or dates relating to the alleged outstanding amounts.

The Respondent exhibited records which showed that no time in lieu was owed to the Complainant at the time of his resignation and that in the cognisable period of the claim there were three days annual leave and one public holiday outstanding

The Applicable Law:

Payment of Wages Act 1991 (“the Act”) provides:

S.1 “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: Provided however that the following payments shall not be regarded as wages for the purposes of this definition: any payment in respect of expenses incurred by the employee in carrying out his employment,  payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, any payment referable to the employee's redundancy, any payment to the employee otherwise than in his capacity as an employee, any payment in kind or benefit in kind[,any payment by way of tips and gratuities.

S 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 any 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.

The Workplace Relations Act, 2015 (“the 2015 Act”), Section 41 provides at subsection:

 (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates…

 (8) 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 issue for determination is whether the Complainant was subject to non-payment of wages in contravention of the Payment of Wages Act 1991. Under the Act, the initial burden rests with the Complainant to present credible evidence that wages due were not paid. In this instance, the Complainant acknowledged that he held no records supporting his claim of outstanding payments. Furthermore, he appeared to concede that he may have misunderstood the basis upon which time off in lieu was calculated and remunerated. I am satisfied that his initial assertion that two months’ salary was outstanding was mistaken.

In response, the Respondent submitted documentary evidence which I find credible and persuasive. The records indicated that while there were some outstanding amounts, these related solely to three days of untaken annual leave and one public holiday. I accept the Respondent’s explanation in this regard.

It is also important to note that the relevant period for the assessment of this complaint is confined to the six months preceding 29 January 2025, the date on which the complaint was received by the Workplace Relations Commission.

The Complainant also included a claim for unpaid expenses totalling €570. However, pursuant to Section 1 of the Payment of Wages Act 1991, expenses do not fall within the statutory definition of “wages” and are therefore not recoverable under this complaint.

Having considered the evidence in its entirety, I am satisfied that the complaint of non-payment of wages is well-founded to the extent that an amount equivalent to four days’ net pay remains unpaid. Based on the Complainant’s net salary, I determine that the outstanding sum payable by the Respondent is €334.

I find that the complaint was well founded to the extent as outlined above. I direct the Respondent to pay the Complainant the net sum of €334.

Payment of Wages Act 1991.