Complainant

Respondent

Parties

Ethel  Chivende

Medilink Ambulance Ltd

Representatives

Self

Did not attend

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-00072878-001

27/06/2025

The Complainant attended the hearing and gave evidence on affirmation.  She commenced employment with the Respondent on 18/12/2024.  She outlined the history of the late payment of her wages which was a constant source of concern to her.  Despite the history of late payments, the Complainant continued to go to work.  On most occasions her wages would be paid a month late and the Respondent would state that they were waiting for payments.  The Complainant gave evidence that she did not get paid for her March 2025 shifts and she then decided to hand in her notice. 

The Respondent asked her to oblige them and to continue working for another month which she did.  When she did not get paid for that month she decided to leave and although the Respondent offered to pay her “up front” she declined as she was not paid for March and April 2025.  The Complainant stated that she had to clock in for each shift and she does not have any access to this information.  She gave evidence of the shifts she worked in March and April 2025 and noted that this was not complete.  Based on the records she has kept the Complainant gave details of the dates and shifts worked.  This resulted in a total of 102 hours and as she was paid €13.90 per hours which is a total of €1,417.

The Respondent in this case has failed to engage with the WRC process and did not attend the scheduled remote hearing, despite having been provided with clear and sufficient notice.

The refusal of the Respondent’s representative to communicate with the WRC on the morning of the hearing is wholly unacceptable. This conduct represents not merely discourtesy but a deliberate and wilful disregard for a statutory adjudicative process.

Such behaviour undermines the integrity of the WRC, demonstrates a serious contempt for its authority, and has prejudiced the proper administration of justice. The level of disregard shown by the Respondent is significant and unacceptable.

Preliminary Point:  The Complainant gave evidence at the commencement of the hearing that she was not familiar with employment law and had no experience in relation to this.  She submitted her complaint to the WRC on 27/06/2025 after many unsuccessful attempts to get paid by the Respondent. She was unsure if the refusal to pay was based on a number of factors which might be equality related.  In that context she initially selected the Employment Equality Act, 1998.

At the hearing it became apparent that the complaint was in relation to the non-payment of her wages.  It is well established practice that an Adjudication Officer can treat a complaint as if it were under the correct legislation and permit a change provided the general nature of the complaint remains the same and the Respondent is aware of the facts and not likely to be prejudiced. 

The Complainant in this case has made extensive efforts to have her outstanding wages paid and therefore there is no doubt that the Respondent is aware of what here precise complaint is.  The WRC form is not a statutory form and its purpose is to give notice of the general nature of a complaint.  In this case the Complainant’s selection of the wrong legislation can be no more than an administrative slip as the underlying facts support the correct legislation and there is no question of any surprise or prejudice to the Respondent, notwithstanding the fact that they decided not to engage with the WRC.

I note the key passage in the case of County Louth VEC v The Equality Tribunal [2009] IEHC 370 McGivern J, held; “I accept the submission on behalf of the Respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint.  If it is permissible in Court proceedings to amend pleadings where the justice of the case requires it, then a fortiori it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint remains the same”.

In the WRC case of Seamus Eager v Minister for Employment Affairs and Social Protection, ADJ-00028241 (14 June 2021) the Adjudication Officer accepted that the Complainant had ticked one statute but the narrative fell under another statute.  In that case the Adjudication Officer held that because the “nature” of the complaint was the same, the form error did not defeat the claim and the case could proceed under the correct legislation and in doing so cited the County Louth line of authority.

CA-00072878-001:  This is a complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991.

Section 5 of the Payment of Wages Act 1991 provides as follows:

“(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.”

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Finnegan J. considered Section 5 of the Act as follows:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where 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, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion. Central to the court's analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation”.

What Amount is Properly Payable?

The Act provides that where the total amount of wages properly payable to an employee is not paid, any deficiency is regarded as a deduction. Consequently, to ground a claim under the Payment of Wages Act 1991 an Adjudication Officer needs in the first instance to ascertain what wages are properly payable. The starting point for assessing what is properly payable is the contract of employment. As there are no written details of the terms of employment, I have reviewed the various emails and text messages exchanged between the Complainant and the Respondent.  The Complainant is clear that she did not consent to the reduced hours.  The Respondent acknowledges that a deduction was made as part of the cost saving measures.

Was there a shortfall in payment?

Section 5(1) of the Act prohibits an employer from making deductions to an employee's wages except in accordance with the provisions of that section.

At the hearing it was confirmed that the Complainant’s gross pay was €13.90 per hour.  The Complainant gave evidence that she had to clock in but the Respondent did not provide any details of her attendance record.  The Complainant has relied on her own records and she is confident that these do not reflect all of the hours that she is due. The Complainant provided a detailed account of the history of late payment of her wages and the dates on which the accrued shortfall arose.   In the absence of any evidence or any similar analysis by the Respondent I have decided to accept the Complainant’s uncontested evidence.  The Complainant is due the sum of €1,417.00.

I have decided that this complaint is well-founded and I order the Respondent to pay the Complainant the sum of €1,417 within 42 days of the date of this decision.

Non-payment of wages.