Complainant

Respondent

Parties

Khanak  Sharma

Shasha's Hospitality Limited trading as Vela Restaurant 

Representatives

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-00069256-001

13/02/2025

The Complainant worked as a waitress for the Respondent restaurant between February and June 2024. Her evidence was that she was persistently underpaid and had monies owing to her on cessation.

The Complainant attended the hearing and gave evidence under affirmation.

While a student she had worked for the Respondent part-time from February 2024 until the first week in September 2024. The Respondent paid weekly for the previous week and as such her final pay date was the 19th of September. The Complainant’s rate of pay was €12.70 per hour.

The Respondent was notified of the hearing by way of letter to their registered address. They did not attend the hearing.

I have jurisdiction in respect of this complaint by virtue of section 41 of the Workplace Relations Act 2015. Subsection (6) provides that an adjudication officer shall not entertain a complaint if it has been presented after the expiration of six months from the date of contravention. Subsection (8) provides that this period may be extended by a further six months where reasonable cause for the delay is established.

The Complainant gave evidence that she would have presented her complaint at an earlier stage but was outside the jurisdiction due to a medical emergency involving a family member in India. Having considered this evidence, I am satisfied that this constitutes reasonable cause for the delay and that the statutory test for an extension of time is met. I therefore have jurisdiction to consider the complaint.

This complaint arises under section 5 of the Payment of Wages Act 1991 which provides that an employer shall not make a deduction from the wages of an employee unless authorised by statute, contract, or with the prior written consent of the employee. The initial burden rests on the Complainant to establish that wages properly payable were not paid, following which the evidential burden shifts to the Respondent to demonstrate that any deduction was lawful.

The Complainant’s complaint relates to three distinct elements.

The Complainant gave evidence that she worked 50 hours for which she did not receive payment. She stated that this was an ongoing issue during her employment and that she was repeatedly assured that the matter would be rectified and payment made. I accept her evidence that wages in the amount of €635 remain outstanding in respect of these hours. In the absence of any lawful basis for the non-payment, I am satisfied that this constitutes an unlawful deduction within the meaning of the Act.

The Complainant gave evidence that €365 was deducted from her wages in respect of emergency tax and that this sum was never reimbursed to her. She stated that the Respondent assured her that the amount would be repaid in a future payroll but this did not occur. There was no evidence before me to demonstrate that the Respondent was entitled to retain this sum or that it was properly remitted. As such I am satisfied that it was properly payable to the Complainant on cessation and the non-payment constitutes an unlawful deduction.

The Complainant gave evidence that she worked a total of 205 hours during her employment and did not take any annual leave. She calculated that she accrued 16.4 hours’ annual leave, valued at €208, which was not paid to her on cessation of employment. I accept this evidence. Payment in lieu of accrued but untaken annual leave constitutes wages properly payable and the failure to discharge this entitlement amounts to an unlawful deduction.

Having regard to the above, I am satisfied that the Complainant has established that wages properly payable were not paid and that the Respondent has not demonstrated any lawful basis for the deductions identified. I therefore find the complaint to be well founded.

I find that the complaint is well founded and I direct the Respondent to pay the Complainant €1208.