PWD2432

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00047889 (CA-00056005-001)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court on May 24th 2024, in accordance with Section 44 of the Workplace Relations Act, 2015. 

DECISION:

This matter comes before the Cort as an appeal by Clarity Engagement Solutions (the Respondent) against a decision of an Adjudication Officer given under the Payment of Wages Act, 1991 (the Act) in a complaint made by John Bird (the Complainant).

The Adjudication Officer decided that the complaint was well founded and awarded the Complainant the sum of €5,772.75 in compensation.

The case

The Complainant submitted that the wages properly payable to him in February and March 2023 amounted to €6,833.34 (gross) / €5,370 (net). He submitted that the wages actually paid to him on the occasion was nil. He submitted that he had not agreed that a deduction could be made from the wages properly payable to him and no statutory or other reason for a deduction from the wages properly payable to him existed.

The Respondent accepted that the wages properly payable to the Complainant in February and March 2023 amounted to €6,833.34 (gross) / €5,370 (net) and that the wages actually paid to him on the occasion was nil. The Respondent accepted that the Complainant had not agreed that a deduction could be made from the wages properly payable to him and that no statutory or other reason for a deduction from the wages properly payable to him existed.

The Complainant submitted that his contract of employment identified the Respondent as his employer and that no notification had ever been given to him of the termination of that contract of employment or its transfer to another entity.

The Respondent submitted that the Respondent entity had entered liquidation at or about the end of 2022 and that thereafter the Complainant was employed by another entity. He accepted that the Complainant was not notified of any transfer of the business or of his employment at the end of 2022 or at all.

Relevant law

The Act at Section 1 in relevant part makes provision as follows:

"employee" means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purpose of this definition, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or the Government, as the case may be, and an officer or servant of a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014), a harbour authority, a health board or F3[a member of staff of an education and training board] shall be deemed to be an employee employed by the authority or board, as the case may be;

"employer", in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers as follows:

Section 5(1) provides as follows:

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.

At Section 5(6) provision is made as follows:

5(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.

Discussion and conclusions

It is common case that the wages properly payable to the Complainant on the occasion was €6,833.34 (gross) / €5,370 (net). It is also common case that the wages actually paid to the Complainant on the occasion was nil. The Court concludes that a deduction of  €6,833.34 (gross) / €5,370 (net) was made from the wages properly payable to the Complainant on the occasion.

No submission has been made to the effect that any deduction made from the wages of the complainant on the occasion was lawful.

The Court notes that, despite the brief oral and written submissions of the Respondent, no evidence or corroborating material was submitted to suggest that the employment of the Complainant had transferred to any other entity at the material time. It was accepted by the Respondent that the Complainant had never been notified of any transfer of his contract of employment or his employment to any entity other than the Respondent. It was accepted that the only contract of employment in being at the material time for the within complaint was a contract between the Complainant and the Respondent.

The Respondent submitted that the Respond entity has been in liquidation since late December 2022 and it appeared from the submissions that the liquidation is ongoing. It is the understanding of the Court therefore that the Respondent remains a legal entity, albeit in liquidation.

In all of the circumstances, the Court concludes that the deduction from the wages properly payable to the complainant on the occasion was unlawful.

Decision

The Court decides that the complaint is well founded. The Court decides that the Respondent shall pay to the Complainant compensation in the amount of €5,370, being a sum equal to the net amount of wages payable to him on the occasion, and being the amount which the Court considers reasonable in the circumstances.

The decision of the Adjudication Officer is varied.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
FC	______________________
29 May 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.