Complainant

Respondent

Parties

Mihaela  Branescu

PMD Device Solutions Ltd.  

Representatives

  Self -Represented

 Non-attendance

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-00068344-001

27/12/2024

The Complainant has a PhD in chemistry and worked as Director of Regulatory affairs from 2 May 2023 until 22 December 2024, when she was denied access to the Respondent’s systems, for purported reason of redundancy. Her notice period of termination of employment  was stated in the Respondent’s correspondence  as 31 January 2025.  Her salary was €7916.66, net €5440.34 monthly.  The Complainant submits she was not paid her salary for the months of November, December 2024 and January 2025. The Complainant submits she also did not receive payment for 8.72 days holidays on termination of her employment.

The Respondent did not attend the hearing though I am reasonably satisfied that it had received hearing notification details.

The Complainant gave sworn evidence and exhibited both a payslip and a copy of a notice of redundancy to show termination of employment to occur on 31 January 2025. The Complainant also exhibited correspondence verifying her efforts to recover outstanding payments from the  Respondent.

The Respondent did not attend.

Applicable Law:

Section 1 of the Payment of Wages Act 1991 (“the Act”)  defines “wages “as:  

“… 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, any 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.

Section 5 of the Act in its applicable parts provides:

(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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(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 previously mentioned) are paid to the employee,

then, except as 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 refer to the definition of wages, in its particular part dealing with notice where it states “ 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.” The Complainant gave sworn evidence, backed up by the appropriate documentation, where the Respondent stated in the written notice of redundancy that the termination date of the Complainant was 31 January 2025. I am satisfied, based on the uncontested evidence of the Complainant that she was not paid for the months of November December and January in 2024/2025. I am also satisfied that she was not paid for 8.72 days of outstanding holidays. I therefore find that her complaint was well founded.  

Redress:

Section 6(1) of the Act deals with redress, where it states:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages, or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

the net amount of the wages, or tips or gratuities as the case may be (after the making of any lawful deductions therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,…

I find that the Complainant’s salary for the outstanding three months comes to the net figure of €16,321, based on the net monthly salary of €5440.34 after lawful deductions are made. Furthermore, in relation to outstanding annual leave days, I find that the Complainant’s net weekly salary, based on the payslip supplied, to be €1,255.40. Therefore, I find the daily net rate to be €251 which went multiplied by the outstanding 8.72 days comes to the sum of  €2,188.72. I am satisfied that the unpaid outstanding net sum of salary and holidays combined comes to €18,509.72.

For the reasons outlined above, I find the complaint was well founded, and I direct the Respondent to pay the Complainant compensation of the net amount of wages due to the Complainant which comes to the total sum of €18,509.72.

Payment of Wages Act 1991.