Complainant

Respondent

Parties

Craig O'Brien

Jalilzad Electronics Limited

Representatives

McGroddy Brennan Solicitors

Did not attend the hearing and was not represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00068460-001

07/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00068460-002

07/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00068460-003

07/01/2025

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

CA-00068460-004

07/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00068460-005

07/01/2025

The complainant has many years’ experience in the retail and wholesale trade, specialising in general household products, toys and seasonal items.  The respondent has a number of retail stores and, when he purchased stock from a business in liquidation where the complainant was working, the managing director, Mr Jalilzad asked the complainant to join him to set up a wholesale business. 

In his evidence at the hearing, the complainant said that, based on his discussions with Mr Jalilzad, he was confident that he could increase sales and make a contribution to the company.  In September 2023, he prepared sales forecasts and a plan for which Mr Jalilzad agreed to provide the finance.  The plan involved the purchase of stock from specific companies in the UK, initial order values and the sales that could be achieved, including a significant Halloween range.  In October 2023, with Mr Jalilzad’s agreement, the complainant travelled to China to visit factories and meet suppliers of the Halloween products.  He was paid for his expenses, but he wasn’t paid for the time he spent in China, nor was he reimbursed €5,990 for the cost of the delivery of samples back to Ireland, which he arranged using the courier account of his wife’s business.

In May 2024, the complainant joined the company as a general manager.  He provided a copy of a payslip dated September 30th 2024 which shows that his wages for the ninth month of 2024 were €4,166.66 gross, indicating an annual salary of €50,000.

The complainant said that he set up a showroom in a business park in Dundalk where retailers could visit and order stock.  He also recruited a website administrator.  He put together a list of suppliers, but when the managing director refused to buy product from them, and insisted on using his own preferred supplier, the complainant said that it became apparent that things wouldn’t work out as he had thought.  The complainant said that the product-range, price and quality is not what he built the forecast around and the stock from Mr Jalilzad’s source wasn’t what customers wanted.    

The complainant said that he pre-sold stock to the value of €150,000 to various retail outlets, but, when Mr Jalilzad refused to pay deposits to the factories, the stock wasn’t delivered.  He said that he had to go back to customers who had placed orders to tell them that the stock was cancelled.  He said that Mr Jalilzad was upset when the sales targets weren’t met, but he refused to budge on his chosen supplier.

Most of the respondent’s employees are from Afghanistan and the complainant said that there were communications issues with order picking that resulted in him having to drive around the country resolving mistakes.  He set up weekly planning meetings to trouble-shoot potential issues affecting customers.  He said that customers were losing faith in the company and “issues were snowballing.”  In July and August 2024, he said that he was constantly on the road trying to fix problems. 

On September 15th 2024, the complainant said that the business wasn’t developing as he had planned and he wrote to Mr Jalilzad outlining the problems as he saw them.  He was also concerned about the company’s finances and he brought in an accountant to help.

When the person working on the website wasn’t paid her wages, on September 25th 2024, the complainant said that he phoned Mr Iman Jalili, an associate of the managing director, who is now the company secretary.  He said that he got a call back from Mr Jalilzad, who shouted abuse at him.  He looked for a meeting to try to resolve the issues getting in the way of the business being successful and this took place on September 30th 2024.  The complainant and the website administrator attended the meeting, as did Mr Jalilzad, his brother and Mr Jalili.  After what the complainant described as a cool start to the meeting, Mr Jalilzad became abusive and told the complainant that, from then on, he was only required to work one day a week.  When the complainant challenged Mr Jalilzad’s right to change his terms of employment without discussion, he said that Mr Jalilzad berated him saying, “Who are you?  You are nothing, you are a dog.”  He demanded that the complainant hand back the keys of his office.  The complainant gave Mr Jalilzad the keys, left the meeting and waited until the website administrator had safely left the premises.  Shortly afterwards, he sent a WhatsApp message to Mr Jalilzad, asking him to clarify his employment situation.  Later that day, he received a letter informing him that his working week had been reduced from five days to one day per week and that this “temporary change” would be reviewed in January 2025.

On October 1st 2024, the complainant received his payslip for September, indicating that he had been paid net wages of €3,078.86, based on his gross monthly pay of €4,166.66.  No money was transferred to his bank account and, on October 8th, he sent a letter by registered post to Mr Jalilzad, seeking his wages for September and €2,000 in wages for his time spent in China in October 2023.  When he got no response to this letter, on October 14th, he sent an email to Mr Jalilzad and Mr Jalili.  Mr Jalili replied attaching a copy of the letter from Mr Jalilzad of September 30th in which he informed him that his working week was reduced to one day.  In his email, he asked the complainant to “please let us know if you are available to work 1 day a week.” 

The complainant had no communication from the respondent about the work he was required to do for one day a week and, on November 8th 2024, his solicitor, Mr Lane, wrote to Mr Jalilzad seeking a letter confirming an amendment to the complainant’s contract of employment, his wages for September, a shortfall from his wages in August, wages associated with travelling to China in October 2023 and payment of the invoice for €5,990.78 for delivering samples by courier from China to Ireland.  When there was no reply, Mr Lane wrote again on November 19th, repeating his requests regarding the complainant’s contract, his September wages and other money owed.  Mr Jalilzad did not reply and the complainant sent him a WhatsApp message on November 20th, asking him to meet him to discuss the issues raised by his solicitor.  Mr Jalilzad still didn’t reply and Mr Lane wrote to him again on November 27th, but again, there was no reply.  On January 7th 2025, on behalf of the complainant, Mr Lane submitted these complaints to the WRC.

In his evidence at the hearing, the complainant said that he accepts that his employment with the respondent ended on October 31st 2024, when it became apparent that the managing director wasn’t going to pay his wages or have any contact with him.  At that stage, he had worked with the company for just under six months.

CA-00068460-001:  Complaint under the Payment of Wages Act 1991

Following a contentious meeting on September 30th 2024, the respondent’s managing director, Mr Jalilzad, wrote to the complainant and informed him that his working week was reduced to one day.  On October 1st, the complainant received a payslip confirming that €3,078.86 had been transferred to his bank account.  No money was transferred.  The complainant wrote to Mr Jalilzad on October 8th, seeking his wages and asking for the reduction in his working week to be addressed through the grievance procedure, but he got no reply.  He wrote again on October 26th and November 20th.  His solicitor sent letters on November 8th, 18th and 27th.  The complainant received no response to his letters or his solicitor’s letters, apart from a reply from a manager, Mr Jalili, on October 14th, to which he attached a copy of the letter from Mr Jalilzad of September 30th.

The complainant’s position is that the failure of the respondent to pay his wages for September 2024 is an illegal deduction.

CA-00068460-002:  Complaint under the Payment of Wages Act 1991

Throughout the month of October 2024, the complainant persistently tried to resolve the breakdown in the relationship between him and his employer, but he was ignored.  At the end of October, for the second month in a row, he received no wages, and he decided that his job had come to an end.  He claims that the failure to pay his wages for the month of October 2024, when he was an employee of the respondent, is an illegal deduction.

CA-00068460-003:  Complaint under the Organisation of Working Time Act 1997

The complainant was an employee of the respondent from May 1st until October 31st 2024.  At the hearing, he said that he took two days’ holidays during that period.  His payslip dated September 30th 2024 indicates that his wages for that month included pay for two days’ holidays.

As he had been employed by the respondent for six months, the complainant had a statutory entitlement to 10 days’ annual leave.  He claims that he is owed for eight days’ holidays not taken at the time of his departure.

CA-00068460-004:  Complaint under the Terms of Employment (Information) Act 1994

It is the complainant’s case that his employer attempted to unilaterally reduce his working week to one day and that he was not issued with a written amendment to his contract to confirm this change.

CA-00068460-005:  Complaint under Minimum Notice and Terms of Employment Act 1973

It is the complainant’s case that his employment ended when his employer refused to have any contact with him and refused to pay him his wages.  As he had more than 13 weeks and less than two years of service, he claims that he is entitled to one week’s pay in lieu of notice of the termination of his employment on October 31st 2024.

Section 5(6) of the Payment of Wages Act 1991 (“the Act”) provides that, to ground a complaint under the Act, wages must be properly payable:

(6) Where—

(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.

I understand from this section and, taking my authority from the judgement of the High Court in Marek Balens v Tesco Ireland Limited[1], my first task is to determine if the complainant’s wages were properly payable.   

The complainant worked for the respondent from May 2024, and, at the hearing, he produced a copy of a payslip dated September 30th 2024 showing wages due to him of €4,166.66 gross and €3,078.86 net of deductions.  The payslip shows that this pay is for period 9, indicating that the complainant was paid monthly.  It also shows that his cumulative gross pay up to September 30th 2024 was €19,666.64.  This indicates that the complainant was paid an average of €3,933 over a period of five months, instead of €4,166.66 which is indicated for September.  His cumulative earnings give the impression that there must have been shortfalls in wages in previous months; however, we are concerned here with the failure to pay any wages in September 2024.

Based on this payslip for period 9, 2024, and on the complainant’s evidence at the hearing, I am satisfied that net wages of €3,078.89 were properly payable to him on September 30th 2024.

My second task is to determine if there has been a deduction in the complainant’s wages for the period specified that is not governed by s.5(1) of the Act.  This section provides that an employer may make a deduction from an employee’s wages for three reasons:

(a)    Where it is legally permitted for revenue and social welfare purposes;

(b)    Where the deduction is specified in the employee’s contract of employment;

(c)     Where the employee has given their consent in advance.

The failure of the respondent to pay the complainant any wages in September 2024 is not encompassed by any of these three provisions and I must conclude therefore, that the non-payment of his wages that month was not authorised.

As the complainant’s evidence has not been rebutted, I find that, in breach of section 5 of the Payment of Wages Act 1991, on September 30th 2024, one month’s net pay amounting to €3,078.89 which was properly payable to him has not been paid.

The complainant’s evidence is that, on September 30th 2024, the respondent’s managing director demanded that he hand back his office keys.  Mr Jalilzad told the complainant that he was required to work for just one day a week, and he confirmed this in a letter to him on the same day.  When the complainant wrote to Mr Jalilzad and sent him WhatsApp messages to try to discuss this reduction in his hours and the issues that were affecting the business, Mr Jalilzad simply didn’t respond. 

In the documents he submitted for the hearing, the complainant included a copy of a document with the title, “Jalilzad Electronics Limited, Terms and Conditions of Employment.”  This is a template statement and it contains a provision for lay-off “where the company is unable to maintain you in employment or to maintain you in full-time employment.”  However, the complainant’s name is not on the document, there is no start date, there is a blank where the amount of wages should be stated and it is not signed by the complainant or the respondent.  I am not satisfied that this statement is adequate to meet the requirements of s.3 of the Terms of Employment (Information) Act 1994 and I have decided that the complainant is not bound by its terms.

In respect of my investigation into this specific complaint, I note the decision of the Labour Court in the case of Kostal Ireland GMBH and Mr Gabriel Delee[2].  Mr Delee’s working time was reduced to three days a week and he complained of an illegal deduction in his wages.  His contract contained no provision for reducing his hours of work and the Court was not satisfied, based on Stefan Chmiel and others v Precast Concrete Limited[3]that the practice of reducing his working time was “reasonable, certain and notorious.” 

In its decision on Mr Delee’s complaint, the Court relied on a 1984 decision of the High Court in Industrial Yarns v Leo Greene[4].  Mr Greene was seeking payment of wages for a period when he was on lay-off.  Mr Justice Costello held that,

“If there is no contractual power (expressed or implied) in the Contract of Employment to suspend the operation of the contract for a limited period, then by ceasing to employ an employee or refusing to pay him wages, the employer is guilty of a serious breach amounting to repudiation of it.”

Having considered the complainant’s evidence and, taking guidance from the decision of the Labour Court to which I have referred, I am satisfied that there was no statutory or contractual provision to reduce the complainant’s working hours in October 2024 to one day a week.  In the absence of any consultation or agreement with him, I find that, for the month of October 2024, the complainant’s wages were properly payable. 

As he had been employed by the respondent for six months, in accordance with s.19 of the Organisation of Working Time Act 1997, the complainant was entitled to 10 days’ annual leave.  As he availed of two days’ leave, it follows that, at the termination of his employment he had an outstanding entitlement to eight days’ pay.

Section 5(1) of the Terms of Employment (Information) Act 1994 deals with the intention of an employer to make a change to an employee’s terms or conditions of employment:

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than -

(a) the day on which the change takes effect[.]

Subsection (b) is not relevant to this complaint.  Subsection (2) relates to statutory changes, for which a written statement is not required.

I have concluded that the complainant was not issued with a valid statement of his terms and conditions of employment; however, I accept that he agreed with his employer that he would work for five days each week for wages of €50,000 per year, and to that end, he entered into a contract of employment with the respondent.  I find that the respondent was in breach of s.3 of the Terms of Employment (Information) Act by failing to provide the complainant with a proper statement of his terms and conditions of employment.  This is a complaint about a breach of s.5 of that Act, to the effect that the complainant was not issued with confirmation in writing of a change to his terms and conditions.  It is my view that the letter issued by Mr Jalilzad on September 30th 2024 was sufficient to comply with the requirement to provide written notification to the complainant of the change to his working hours.  While it is entirely unacceptable, the fact that the complainant was not consulted about the change and that it was decided without his agreement is not a ground for a complaint under the Terms of Employment (Information) Act.

The complainant’s position is that he left his job due to the conduct of his employer.  In these circumstances, where the complainant claims that he was constructively dismissed, there is no requirement for the respondent to issue notice or to pay the complainant in lieu of notice.

CA-00068460-001:  Complaint under the Payment of Wages Act 1991

I have concluded that the respondent unlawfully deducted €3,078.86 from the complainant’s wages on September 30th 2024 and I decide therefore, that this complaint is well founded.  I direct the respondent to pay the complainant compensation of €3,078.86.  This is a net amount and is not subject to deductions for tax, PRSI or USC.

CA-00068460-002:  Complaints under the Payment of Wages Act 1991

I have concluded that the respondent unlawfully deducted €3,078.86 from the complainant’s wages on October 31st 2024 and I decide therefore, that this complaint is well founded.  I direct the respondent to pay the complainant compensation of €3,078.86.  This is a net amount and is not subject to deductions for tax, PRSI or USC.

CA-00068460-003:  Complaint under the Organisation of Working Time Act 1997

I have concluded that, at the termination of his employment, the complainant had an entitlement to eight days’ pay for holidays not taken.  I decide therefore, that this complaint is well founded.  Based on his annual salary of €50,000, I calculate that his daily rate of pay was €216.45 (€50,000 ÷ 231 working days).  I direct the respondent to pay the complainant compensation of €1,731.60.  As this compensation is for a breach of a statutory right, it is not subject to deductions for tax, PRSI or USC.

CA-00068460-004:  Complaint under the Terms of Employment (Information) Act 1994

For the reason I have set out under the “Findings and Conclusions” section above, I decide that this complaint is not well founded.

CA-00068460-005:  Complaint under Minimum Notice and Terms of Employment Act 1973

As the complainant resigned from his job with the respondent, he is not entitled to notice and I decide therefore, that this complaint is not well founded.

Total Compensation

The total amount of compensation awarded to the complainant is €7,890.  The award under the Organisation of Working Time Act is compensation for a breach of a statutory rights and, in accordance with s.192A of the Taxes Consolidation Act 1997, is not subject to deductions for PAYE, PRSI or USC.  The award under the Payment of Wages Act is a net award.  Therefore, the total award of €7,890 is not subject to any deductions.

Terms of employment, wages not paid, holidays at cessation of employment