When are Wages Properly Payable

Background

The case of Maureen Power v Garryowen Community Development Project (ADJ00045719) examines the circumstances under which wages will be properly payable by an employer to an employee. 

Ms Power (the Complainant) brought a complaint under Section 6 of the Payment of Wages Act, 1991 against Garryowen Community Development Project (the Respondent) to the Workplace Relations Commission (WRC), alleging that she was not provided with sufficient work during the period of her employment with the Respondent but, nonetheless, should have been paid for that work, given her availability.

Legislation and Case Law

The complaint was primarily grounded in Section 5(6) of the Payment of Wages Act addresses the circumstances in which wages ‘properly payable’ wages are not paid:

(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.

Decision

Ultimately, the Adjudication Officer decided that as the Complainant had not worked the requisite hours in contention, the employer was under no obligation to make any payment to her. 

The Adjudication Officer determined that “i is apparent therefore that, if I find that wages that were “properly payable” to the complainant were not paid, I must conclude that there has been a deduction from her wages. Section 5(1) of the Act provides that, apart from tax, PRSI and USC, unless there is a provision in an employee’s contract of employment to deduct wages, without the employee’s written consent, a deduction may not be made. 

Every contract of employment is based on an agreement by an employee to attend work and to carry out work, in return for an agreed sum in wages. While she was not at work, the complainant’s wages were not properly payable, meaning that she had no legal or contractual entitlement to wages. As this condition of being “properly payable” has not been met, it follows that there was no deduction from wages which were not due.”

Takeaway

The takeaway for employees considering bringing a complaint under the Payment of Wages Act, 1991 is to determine how they can demonstrate that an amount owed to them was properly payable to them by virtue of the contract of employment, a relative legislative provision and / or works carried out.

For employers, it will be necessary to demonstrate that any payment in contention was either properly paid or no debt legally arose.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.