Complainant

Respondent

Parties

Molly  Prendergast

Metron Stores Limited t/a Iceland

(in liquidation)

Representatives

Mr. Dylan Mooney, Independent Workers’ Union.

N/A

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-00058635-001

04/09/2023

The Complainant worked for the Respondent from October 2022 until June 2023. Most recently, she held the role of Duty Manager. The Complainant worked in both the Coolock branch and the Northside branch. The Complainant’s uncontested evidence was that she earned approximately €11.65 gross per hour. She also submitted that she received time and a half on Sundays. The Complainant outlined that she worked approximately 45 to 50 hours per week. The Complainant alleges that the Respondent acted in breach of the Payment of Wages Act 1991 as amended, between February and May 2023.

The Complainant provided written and oral submissions.

The Complainant outlined that she started working for the Respondent as a Sales Assistant and that in November 2022, she was promoted to Duty Manager in the Coolock branch. She submitted that she was subsequently moved to the Northside branch where she also worked. She stated that she and a Deputy Manager worked across two branches – the Coolock branch and the Northside branch. The Complainant submitted that she had repeated difficulties with the clocking-in system. The Complainant submitted that she did not receive her full wages for hours worked during certain weeks between February and May 2023.

The Complainant outlined that she placed orders; accepted deliveries; handled cash; packed shelves; and managed approximately 40 staff. She submitted that she worked 45-50 hours per week.

The Complainant outlined that during the week of 6 to 10 February 2023, she was not paid for 16 hours of work. She said that her hours in the Coolock branch were not being correctly recorded as she could not clock-in. The Complainant outlined that the Respondent provided “wage query forms” in March 2023. She was told to indicate in the “wage query form” what she was owed. She outlined that she was told that she would be paid.

The Complainant outlined that from 27 February to 5 March 2023, she worked 51 hours. This included 4.45 hours on Sunday. However, the Respondent paid her for only 11.45 hours. The Complainant provided a copy of her roster for the week. The Complainant provided a screenshot of the hours worked and where the clocking-in system noted errors. The Complainant provided a copy of her payslip dated 5 March 2023. The Complainant provided a copy of the Respondent’s message, seeking to verify hours worked. The Complainant also provided a copy of her clock-in queries concerning “Pay Period B”.

The Complainant outlined that from 6 to 13 March 2023, she worked 40.5 hours. This included 10.5 hours on Sunday. However, the Respondent paid her for only 17.2 hours. The Complainant provided a copy of her roster for the week. The Complainant provided a screenshot of the hours worked and where the clocking-in system noted errors. The Complainant provided a copy of the Respondent’s message, seeking to verify hours worked. The Complainant provided a copy of her clock-in queries concerning “Pay Period C”.

The Complainant outlined that from 1 to 5 May 2023, she worked 48 hours. This included 10 hours on Sunday. However, she was paid for only 32 hours. The Complainant provided a copy of her roster for the week. She outlined that she completed the Respondent’s requisite “wage query form” and provided a copy of the same.  

The Complainant outlined that she did not receive a payslip concerning the week from 22 to 26 May 2023. She said that she worked 26 or 27 that week. However, the Respondent did not pay her. The Complainant provided a copy of her roster for the week. The Complainant submitted that she had a disagreement with the Respondent regarding the AIB bank statement which it provided, which allegedly showed that payment had been made to her bank account. The Complainant provided a copy of her email exchange with the Respondent dated 29 May 2023. The Complainant provided a copy of her bank statement dated 29 May 2023, which shows that she did not receive any monies from the Respondent.

The Complainant submitted that there were problems with the clocking-in system, both as regards clocking-in and clocking-out. She said that the errors occurred all of the time at both the Coolock branch and the Northside branch. She said that she reported the errors and asked the maintenance team to come in and fix the clocking-in system, but that it was not working again the following day. The Complainant stated that her Manager told her that she would be clocked-in manually.

The Complainant submitted that she did not bring her WRC complaint sooner as she thought she would get her pay.

The Complainant submitted that she received her last payment in June 2023. She submitted that she received no pay after she was let go. She stated that she started a new job six months later.

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

On 19 December 2023, during the Case Management Conference, the Respondent’s correct name was confirmed and it is reflected in this Decision.

In a letter from the WRC dated 30 January 2025, the Respondent was informed of the details of the Hearing to take place on 19 March 2025. The same letter also set out the procedure regarding postponement requests.

On 13 March 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.

Preliminary Issue – Time Limits – The Law:

Section 41(6) of the Workplace Relations Act 2015 (the “WRA”) provides:

“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.”

This six-month time period can be extended, where “reasonable cause” is demonstrated. To this end, section 41(8) of the WRA provides:

“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.”

Case Law:

The established test for “reasonable cause” for the purpose of granting an extension of time is that set out by the Labour Court in Cementation Skanska v. Carroll, DWT0338 as follows:

“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.”

The onus is therefore on the Complainant to identify the reason for the delay and to establish that the reason relied upon amounts to “reasonable cause” for that delay.

I note that in Dr. Frank Whelton t/a Whelton Dental v. Elaine Corkery, TUD247, dated 8 May 2024 (the “Whelton Case”), the Labour Court held:

“It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. While the reasons submitted by the Complainant may explain the delay, the Court finds that they do not provide afford a justifiable excuse for the delay. The Complainant is to be commended for trying to resolve matters directly with her employer, however, this Court has consistently found that a decision to delay referring a statutory complaint for the purposes of exhausting an alternative means to resolve a dispute does not constitute reasonable cause for the delay.

[…]

The Labour Court is a creature of statute, and its powers and duties are derived solely from statute. The Court cannot assume a jurisdiction which is not conferred to it. In all the circumstances, the Court is of the view that a justifiable basis upon which an extension of time could be granted has not been put forward in this case.”

Findings and Conclusion:

The Complainant’s last day of employment was in June 2023. She filed her WRC Complaint Form on 4 September 2023. On the evidence, the Complainant has not shown reasonable cause for failing to present her case sooner. In the circumstances, the six-month time period will not be extended and the cognisable period for this complaint is 5 March 2023 until 4 September 2023.

Substantive Issue – Payment of Wages – 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. As noted above, the Complainant provided documentation in support of her complaint which she addressed in detail during the Hearing. The Complainant submitted that her hourly rate was €11.65 gross.

Conclusion:

For the reasons outlined above, the cognisable period for this complaint is 5 March 2023 until 4 September 2023. Therefore, the Complainant’s complaint regarding unpaid wages for the week of 6 to 10 February 2023 falls outside the cognisable period.

The Complainant outlined that from 27 February to 5 March 2023, she worked 51 hours. However, the Respondent paid her for 11.45 hours. This was a shortfall of 39.55 hours. This included 4.45 hours worked on a Sunday.

The Complainant outlined that from 6 to 13 March 2023, she worked 40.5 hours. However, the Respondent paid her for 17.2 hours. This was a shortfall of 23.3 hours. This included 10.5 hours worked on a Sunday.

The Complainant outlined that from 1 to 5 May 2023, she worked 48 hours. However, the Respondent paid her for 32 hours. This was a shortfall of 16 hours. This included 10 hours worked on a Sunday.

The Complainant outlined that from 22 to 26 May 2023, she worked 26 or 27 hours. However, she did not receive a payslip and the Respondent did not pay her for any hours worked. This was a shortfall of 27 hours.

In the circumstances, there appears to be a total shortfall of approximately 105.85 hours, which comes to approximately €1,233.15. Moreover, it appears that the Complainant worked approximately 24.95 of those hours on a Sunday when she was entitled to time and a half – a further €145.34. This comes to a total of €1,378.49.

Therefore, I find the complaint well founded. I direct the Respondent to pay the Complainant the amount of €1,378.49. This is a gross figure and is subject to taxation and any statutory deductions.

For the reasons set out above, I find the complaint well founded. I direct the Respondent to pay the Complainant the amount of €1,378.49. This is a gross figure and is subject to taxation and any statutory deductions.

Payment of Wages Act 1991.