PWD167

FULL RECOMMENDATION

PW/16/3

DETERMINATIONNO.PWD167

r-157418-pw-15/SR

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 7(1), PAYMENT OF WAGES ACT, 1991

PARTIES :

BRID JACKSON T/A THE MULBERRY TREE LEARNING CENTRE
(REPRESENTED BY PURDY FITZGERALD)

- AND -

SANDRA GILGER

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Adjudication Officer's Decision No r-157418-pw-15/SR

BACKGROUND:

2. This is an appeal of an Adjudication Officer's Decision No: r-157418-pw-15/SR made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 7 April 2016 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DETERMINATION:

This matter came before the Court by way of an appeal lodged by Brid Jackson t/a The Mulberry Tree Learning Centre against an Adjudication Officer’s decision – r-157418-pw-15/SR. The Adjudication Officer upheld a claim made by Ms Sandra Gilger pursuant to Section 6 of the Payment of Wages Act 1991 and awarded her the sum of €1,032.00.

For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Sandra Gilger will be referred to as “the Complainant” and Brid Jackson t/a The Mulberry Tree Learning Centre will be referred to as “the Respondent”.

The Complainant was employed on a number of fixed-term contracts from 17^thOctober 2009 until 15^thJune 2015. She alleged that the Respondent had made an unlawful deduction of €43.00 per week from her wages since 2^ndSeptember 2013.

The Complainant referred her complaint to the Workplace Relations Commission under the Act on 25^thJune 2015 and sought an extension of time in accordance with Section 6(4) of the Act. The reasons cited for the extension related to her fear of the consequences of raising a complaint while still employed by the Respondent. The Adjudication Officer rejected the Complainant’s application for an extension of time under Section 6(4) of the Act as he was not satisfied that there were exceptional circumstances preventing the presentation of a complaint in respect of an earlier period. Accordingly, he awarded sums relating to the period from 25^thDecember 2014 to 15^thJune 2015, a period of 24 weeks.

Summary of the Complainant’s Case

The Complainant stated that the contract of employment furnished to her to cover the period from 2^ndSeptember 2013 until 23^rdJune 2014 and the contact to cover the period from 1^stSeptember 2014 until 31^stAugust 2015, (the employment ended on 15^thJune 2015) both stated that her remuneration was €443.00 gross per week, however, her payslips indicated that her weekly wages were €400.00 per week and she was actually paid €400.00 per week. Therefore she submitted that her employer deducted €43.00 per week from her wages.

Summary of the Respondent’s Position

The Respondent disputed the Complainant’s claim that it made an unlawful deduction from her wages and stated that an error had been made on the Complainant’s contracts of employment. The Respondent explained that the contracts accidentally included the sum of €43.00 which related to Class A Employers PRSI of 10.75% in addition to the Complainant’s gross salary of €400.00 per week.

The Respondent stated that this error was explained to the Complainant on 9^thDecember 2014 and it was pointed out that payslips furnished to her stated that she was paid €400.00 per week as was stated on her P60’s.

The Law Applicable

Section 1 defines “wages”:-

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment including-
- (a)any fee, bonus or commission or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and
- (b)[Not applicable]

Findings of the Court

The Court concurs with the Decision of the Adjudication Officer not to allow the application for an extension of time, therefore the relevant period covered by the claim is 26^thDecember 2014 to 15^thJune 2015.

In this case the Complainant was paid the sum of €400.00 per week despite the reference in her contract of employment stating that she would be paid €443.00 per week. The error made in the first of these contracts was compounded in the second contract. The Court notes that the Respondent stated that at a meeting with the Complainant on 9^thDecember 2014, the error was explained to her. Yet the Court notes that the second contract referred to which commenced on 1^stSeptember 2014 was signed by both the Respondent and the Complainant on 9^thDecember 2014. No effort having being made to rectify the mistake which was explained to the Complainant on that same day.

In such circumstances the Court concurs with the findings of the Adjudication Officer which held that the monies claimed by the Complainant were sums“payable under her contract of employment”in the relevant period.

Determination

The Court determines that the Respondent must pay the Complainant the sum of €1032.00 as compensation in respect of the breach of the Act. This payment should be made within six weeks of the date of this determination. Accordingly, the Court upholds the Adjudication Officer’s Decision and rejects the Respondent’s appeal.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
19 April 2016______________________
MNDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.