Complainant

Respondent

Parties

Estella  Darricau

Madison House Coffee Ltd t/a Scon Galway

Complainant

Respondent

Anonymised Parties

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Representatives

Gilmartin Solicitors

 Cormac McGuickan

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-00068690-001

17/01/2025

The Complainant was represented by Ms Hannah Rodrigues, Legal Executive Advocate with Gilmartin Solcitiprs. She gave her evidence on Oath. Documentation was submitted in advance and relied upon at the hearing.

Mr Cormac McGuckian, Director of the Respondent gave his evidence on Affirmation. He also relied upon documentation at the hearing.

It was the Complainant’s evidence that she earned €14.50 as a Supervisor in the Respondent’s café. She commenced employment on 29 April 2024 and resigned voluntarily on 30 October 2024 with her last day of work being 6 November 2024.

It was her complaint that there was an unlawful deduction of €57.50 from her wages on the week ending on 11 August 2024 for breaks taken but incorrect paid.

She also gave evidence of a further sum of €320 was deducted for the same reason from her final payslip on 15 November 2024.

It was submitted that her contract of employment did not provide for unpaid breaks.  

It was Mr McGuckian evidence that it was the breaks were paid in error. It was his evidence that it was clear to the Complainant that breaks were not paid and this was outlined at the offer stage to her.

The Respondent relied upon payroll documentation to demonstrate the overpayment of break times which amount to 30 mins per day worked. In total it was Mr McGuckian’s evidence that the total amount owed by the Complainant was €372 but only €123 was deducted from the Complainant’s final payslip. The remainder was written off in good faith according to Mr McGuckian.

The Respondent relied upon the Section 5 of the Employee Handbook which provides for the right of the employer to deduct any monies due by the Complainant upon termination of their employment.

Section 5 of the Payment of Wages Act 1991 provides:

“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.

(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,

When invited to identify the clause or policy stating that breaks were unpaid, the Respondent was unable to do so. Therefore, the Complainant’s evidence is accepted that, on a plain reading of the contract of employment, there was no clause relating to breaks being unpaid. This is further supported by the pattern of deductions made; despite raising the issue with the Complainant in August 2024 and making a deduction of €57.50 when she believed it had been resolved, the Respondent only sought to address her breaks from May to July 2024 upon her resignation in November 2024.

Consequently, I find that the complaint is well-founded, as there was no provision for unpaid breaks.

For the reasons set out above, I find the complaint is well founded.

In terms of redress, Section 6 provides: -

6. (1) 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—

(a) the net amount of the wages, or tip or gratuity as the case may be] (after the making of any lawful deduction 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,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount”

The Complainant worked 40 hours a week earning €14.50 with an hourly rate of €19.50 on a Sunday. Accordingly, I award the Complainant compensation in the sum of €1,066.

Payment of Wages – Deduction