Complainant

Respondent

Parties

Charlotte  O Regan

David Gaffney  T/ A Gaffney Solicitors

Representatives

Appeared in person

No Appearance by or on behalf of the Respondent

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-00066941-001

24/10/2024

The Complainant worked as a Receptionist at the Respondents Legal Practice from 9 February 2024 until the closure of the business on 9 May 2024. She submitted pay details of €2,250 gross per 35 hr week. Some pay slips were incorporated which recorded 7-day sick leave.

The Complainant outlined that she should have received €830.73 in unpaid wages (3 days), plus one week’s pay in lieu of notice on 29 May 2024, as the business closed. she has been left short of this sum.

The Complainant exhibited a letter from the Respondent dated 26 April 2024. This letter announced the cessation of the practice and a notification of redundancy.

“Your employment with the Firm will terminate on Friday, 3 May 2024 (termination date) You are required to work through your notice period and on the termination date, should there be sufficient funds, you shall receive your statutory redundancy entitlement and accrued annual leave entitlements. Alternatively, I with the assistance of Quinta Accountants shall assist you in making an application to the Department of Enterprise Trade and Employment for the purpose of obtaining such statutory entitlements “

The Complainant detailed her efforts to secure her pay, which was at first met with a stated positive plan to pay by the respondent. This did not materialise.

The Complainant had held the keys to the office premises and used these to strengthen her bargaining hand against the respondent.

She eventually dropped the keys back on 17 September 2024, hoping this would open channels of communication. It did not.

It was the complainant case that the Respondent had not disputed the value of her claim. She confirmed that she was not eligible for redundancy and was not owed annual leave.

The Complainant submitted that she was financially challenged during this time of May - October 2024.

The Complainant said that she took advice and wrote to the Respondent on 22 October 2024, seeking a prompt response before 25 October 2024.

The content of her correspondence outlined that she, as an individual employee of

 “An unincorporated sole trader without the limitation of liability offered by a company “

Had no recourse to the Insolvency Payments Scheme pending legislative reform.

She restated her claim for unpaid wages and indicated that failure to pay would prompt a referral to the Employment Appeals Tribunal.

The Complainant outlined that other named colleagues had also  experienced pay delays.

She confirmed that the address stated on her complaint form was the Respondents home address. I did state there was a brevity in this address (i. e no street or road name), but the complainant explained this was the address used by her colleagues.

She had not pursued any claim to the Insolvency fund and restated her claim against the Respondent.

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

No defence was offered in the case.

I have been requested to make a decision in this case on whether the monies claimed by the Complainant constitute wages that are properly payable to the complainant in accordance with Section 5(6) of the Payment of Wages Act, 1991.

In reaching my decision, I have offered both parties an opportunity to be heard. I have considered all written submissions and oral evidence, which in this case has been uncontested.

I am satisfied that the Respondent was served with both the claim and the hearing notification at what the complainant contends is his home address. I have not received any reason for the respondent’s nonappearance at hearing or for lack of defence in the case.

I acknowledge that the winding up of a business can be fraught with challenges.

 However, my jurisdiction is set down in Section 5 of the Act at Section 5(1) and Section 5(6).

Regulation of certain deductions made, and payments received by employers.

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.

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 am satisfied on the uncontested evidence of the complainant that the sun €830.73 (gross) is properly payable to the complainant. This comprises 3 days work and one weeks pay in lieu of notice. I note that the quantum was not disputed by the Respondent, but rather that circumstances had overtaken the business which prevented payment. The Complainant has not been paid.

It was regrettable to observe the deterioration in the what’s app communications April to October 2024 as the complainant pursued her claim for pay. The retention of the keys was a mistake by her. The what’s app interparty exchanges were no substitute for direct engagement.

I can appreciate that the Complainant took advice on her letter of October 22, 2024. It may have been helpful for that person to attend at hearing.

The Complainant has fortunately  found new work.

The claim is well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with Section 5 of that Act.

The claim is well founded.

I order the Respondent to pay the Complainant the sum of €830.73, less necessary statutory deductions, if any, as compensation for the contravention of Section 5(1) of the Payment of Wages Act, 1991.

I make this order in the hope that payment of this amount will afford closure to the complainant in what has clearly been a distressing pursuance of unpaid wages.

Unpaid wages. Business Closure.