Complainant

Respondent

Parties

Rafal Kulbicki

Metron Stores Limited t/a Iceland (in liquidation)

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-00055589-001

17/03/2023

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

CA-00055856-001

01/04/2023

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

CA-00055856-002

01/04/2023

The Complainant worked for the Respondent from April 2021 until March 2023. Most recently, he held the role of Store Manager at the Tallaght branch. Since July 2022, he earned approximately €36,050 per annum and worked 39 hours per week.

At the end of February 2023, the Complainant alleges that he did not receive his full pay. He subsequently submitted his notice and proceeded to work his notice period. On 17 March 2023, he was told to go home and advised that he would be paid for his notice period and for his outstanding annual leave. The Complainant heard nothing further.

The Complainant alleges that the Respondent acted in breach of the Payment of Wages Act 1991, as amended and in breach of the Organisation of Working Time Act 1997, as amended. The Complainant is seeking: unpaid wages of €423.89 (gross) for February 2023; unpaid wages of €795.65 (gross) for March 2023; and pay for nine days of accrued annual leave amounting to €1,402.22 (gross). 

The Complainant worked as the Store Manager in the Tallaght branch. His tasks involved managing the store, placing orders, looking after staff and ensuring that customers had what they needed. He reported to the Area Manager.

At the end of February 2023, he did not receive his full pay and he was left short €423.89 gross. He contacted Payroll on multiple occasions in relation to both his own pay and his co-workers’ pay but received no answer.

The Complainant said that staff had not received any detail regarding the new owner and that the Area Manager also had no information. He said that he realised that there was something wrong. He believed that it was time to move on. On 22 February 2023, he submitted his notice. He spoke to the Area Manager who asked him to work his full notice period. The Area Manager told him that he would be paid for his accrued annual leave after he worked his notice period.

On 17 March 2023, the Commercial Manager for “Homesavers” and “Iceland ROI” who was also his Area Manager’s Manager, came to the store. He asked the Complainant for the keys and told him to go home. He gave no reason. The Complainant asked if he would be paid his wages for his notice period and for his outstanding holidays. He was told that he would be paid in full. The Complainant never spoke to him again. At the end of the March 2023, the Complainant submitted that he was owed unpaid wages of €795.65 gross.

The Complainant submitted that he was entitled to 25 annual leave days per year. He submitted that when his employment came to an end, he was owed for sixteen days of accrued annual leave. However, he submitted that at the end of April 2023, he was paid for seven days of accrued annual. He submitted that he is still owed for nine days of accrued of annual leave, amounting to €1,402.22 gross. He did not believe that he took any annual leave in 2023. He could not recall what annual leave he had taken in 2022 and he submitted that some annual leave had been carried over into 2023. He outlined that he has submitted his approximate calculations as he has not been able to contact Payroll.

The Complainant submitted that he believes that the Respondent owes him €2,621.76 gross, in total. The Complainant submitted that his ROS details show exactly what he was paid.

The Complainant submitted that he had emailed the Respondent but received no response. He had sent these emails from his Iceland email account. He thinks he sent further emails but he is unsure. He said that it was very stressful for him.

There was no attendance by or on behalf of the Respondent.

In a letter from the WRC dated 7 January 2025, the Respondent was informed of the details of the Hearing to take place on 14 February 2025. The same letter also set out the procedure regarding postponement requests.

On 12 February 2025, JW Accountants emailed the WRC. They confirmed that Mr. Joseph Walsh was appointed Liquidator of the Company (the “Liquidator”) on 7 September 2023, by Order of Mr. Justice Quinn of the High Court. They further confirmed that as this complaint relates to matters which predate the Liquidator’s appointment, he is not familiar with the background to the complaint and therefore is not in a position to attend or assist in the Hearing.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and decided not to attend.

CA-00055589-001 and CA-00055856-001 – Payment of Wages Complaints:

The Law:

Under the Payment of Wages Act 1991 as amended (the “PWA”), “wages” means:

“any sums payable to the employee by the employer in connection with his employment, including—

(a) 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

(b) 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”.

Section 5 of the PWA further provides as follows:

“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.”

And

“5(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment”.

And

“5(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.”

Section 5(6) of the PWA was considered in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the PWA has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful.

Findings and Conclusion:

Properly Payable:

The Complainant’s evidence was uncontested. He also provided documentation in support of his complaint. In order to determine what wages are properly payable, I must firstly consider the Complainant’s contract of employment dated 19 April 2021. It states that the Complainant’s salary was €35,000 per annum, payable monthly. It also states that the notice period is four weeks. The Complainant also provided a letter dated 18 July 2022 from the Respondent which confirms a salary increase to €36,050. In the circumstances, it is clear that the Complainant received a monthly salary of approximately €3,004.17. This is further corroborated by the ROS record dated 31 January 2023, provided by the Complainant.

Conclusion - CA-00055589-001 – Payment of Wages Complaint:

The Complainant also provided copies of his payslips and his ROS details. Two ROS records show that on 28 February 2023, the Complainant received €1,609.38 gross and €970.90 gross, a total of €2,580.28 gross. In the circumstances, there appears to be a shortfall of €423.89 gross. 

I therefore find the complaint well founded. I direct the Respondent to pay the Complainant the amount of €423.89. This is a gross figure and is subject to taxation and any statutory deduction.

Conclusion - CA-00055856-001 – Payment of Wages Complaint:

The Complainant provided a copy of his notice letter dated 22 February 2023, which states that his last day is 24 March 2023. The Complainant was due to work approximately three and a half weeks that month and was therefore owed wages of approximately €2,325.81 gross. The Complainant also provided copies of his payslips and his ROS details. His payslip and ROS record show that on 31 March 2023, the Complainant received €1,525.70 gross. There appears to be a shortfall of €800.11 gross.

I therefore find the complaint well founded. I direct the Respondent to pay the Complainant the amount of €800.11. This is a gross figure and is subject to taxation and any statutory deduction.

CA-00055856-002 – Accrued Annual Leave Complaint:

The Law:

Pursuant to section 19(1) of the Organisation of Working Time Act 1997, as amended, (the “OWTA”), an employee is entitled to the following paid annual leave:

“(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks).

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 23 of the OWTA provides for the payment of compensation to the employee for loss of annual leave on cessar of employment.

In Waterford City Council v. Mr. Stephen O’Donoghue, DWT0963, the Labour Court held:

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

Section 27(3) of the OWTA empowers an adjudication officer to do one or more of the following:

“(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

Findings and Conclusion:

The Complainant submitted his Complaint Form to the WRC on 1 April 2023. In accordance with section 41(6) of the Workplace Relations Act 2015, the cognisable period for this complaint runs from 2 October 2022 until 1 April 2023.

It was the Complainant’s uncontested evidence that on cessar of employment, he had accrued sixteen days of annual leave and was paid for only seven of those days. The Complainant provided a letter from the Respondent dated 18 July 2022, which stated that he was entitled to 25 days of annual leave. The Complainant submitted that some of his annual leave from the previous year had been carried over into 2023. The Complaint provided a printout of his holiday entitlements which indicated that on 24 March 2023, the Complainant had a balance of 22.42 days of annual leave. He also provided a payslip dated 30 April 2023, which states that he was paid for seven days of annual leave.

Section 2 of the OWTA provides that the “leave year” is any year beginning on 1 April. However, in this matter, section 23(1)(b)(ii) and section 20 (1)(c)(ii) of the OWTA apply and so the leave accrued by the Complainant during the previous leave year can also be taken into account. The Complainant was entitled to 25 days of annual leave per year. The Complainant outlined that he could not recall what annual leave he had taken in 2022 and that some annual leave had been carried over. He submitted that he had not taken any annual leave in 2023. It was his uncontested evidence that he was owed pay for nine days of accrued annual leave.

In the circumstances, I find that the complaint is well founded. I note that the right to annual leave is derived from the Working Time Directive. In Von Colson & Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891, the Court of Justice of the European Union (“CJEU”) made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions. Pursuant to section 27(3) of the OWTA, I order the following:

·          The Respondent to pay the Complainant €1,350 gross (approximately nine days of pay) for the financial loss which the Complainant suffered; and

·          The Respondent to pay the Complainant compensation in the amount of €1,500 (approximately two weeks of pay) for the breach of the Complainant’s statutory rights.

This award is just and equitable having regard to all the circumstances.

CA-00055589-001 – Payment of Wages Complaint:

For the reasons set out above, I find the complaint well founded. I direct the Respondent to pay the Complainant the amount of €423.89. This is a gross figure and is subject to taxation and any statutory deduction.

CA-00055856-001 – Payment of Wages Complaint:

For the reasons set out above, I find the complaint well founded. I direct the Respondent to pay the Complainant the amount of €800.11. This is a gross figure and is subject to taxation and any statutory deduction.

CA-00055856-002 – Accrued Annual Leave Complaint:

For the reasons set out above, I find the complaint well founded and order the following:

·          The Respondent to pay the Complainant €1,350 gross (approximately nine days of pay) for the financial loss which the Complainant suffered; and

·          The Respondent to pay the Complainant compensation in the amount of €1,500 (approximately two weeks of pay) for the breach of the Complainant’s statutory rights.

Payment of Wages Act 1991, Organisation of Working Time Act 1997.