ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003510

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 06/10/2016

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). 

Background

The Complainant, an electrical technician, commenced employment with the respondent on 1 July 2015. The employment ended on 1 April 2016. A complaint was received by the WRC on 8^th June 2016 under section 6 of the Payment of Wages Act, 1991.

Complainant’s Submission and Presentation:

In evidence the Complainant submitted that he was employed on a six month contract as a technician with a salary of €46,000 per annum along with an additional €4,000 lunch allowance supplement, depending on work sheets. A Contract of Employment was subsequently emailed to him with an annual salary of €46,000 included. However, when he checked his first month's pay it only annualised to a salary of €42,000. The Complainant raised this matter with one of the Company Directors and was told that the company was "not in a position to pay you".

On the day his employment ended (the six month contract was extended by a further three months) the Complainant stated that he raised the matter again with a Director and was told that no one would be getting the money.

The Complainant provided a Contract of Employment which detailed Remuneration as a salary of €46,000 per annum payable monthly in arrears. This contract was signed by the Complainant but was not countersigned.

The Complainant submitted that the loss of salary over the period amounted to €3,000.

Respondent’s Submission and Presentation:

In evidence the Respondent submitted that a Director of the company had met with the Complainant at the outset of his employment (at interview) and they had agreed an hourly rate of €22.80, equating to an annual salary of €42,000.

The Respondent provided a Contract of Employment for the Complainant dated 10^th June 2015 which detailed Remuneration as a salary of €42,000 per annum paid monthly in arrears. The Respondent submitted that this contract had been signed by the Complainant, there was no countersignature.

The Respondent stated that the contract provided by the Complainant had been sent in error; in any case it was a contract for an electrician, and the Complainant is not an electrician.

It was the Respondent's contention that the Complainant had continued to work through his time with the company without complaining about his salary. With regard to the lunch allowance it was the Respondent's position that due to the nature of his work the Complainant was not entitled to make a claim under the scheme.

The Respondent provided a sheet showing rates of pay for electricians which it was submitted showed that a salary of €46,000 is well above the going rate for a technician such as the Complainant. The Respondent put forward that it did not make sense that the company would pay someone well above the going rate.

The Respondent also suggested that as neither contract had been countersigned by the employer they were both null and void.

Questioning

In questioning the Complainant was adamant that he had not signed the contract provided by the Respondent dated 10^th June 2015 and the signature on the document was not his. The Complainant showed an email on his phone from a Director of the company dated 18^th June 2015 which had the contract dated 18^th June 2015 attached to it. The Complainant also questioned why, if he had signed a contract on 10^th June would he have been asked to sign another one eight days later. The Complainant also provided a printed copy of a text he had received from another company Director on the 18^th June in which the Complainant stated that he had just received the contract; the response from the Director was, "Hold onto it…"

The Respondent stated that a meeting had taken place between the Complainant and a Director sometime after 18^th June to discuss the Complainant's contract. It was the Respondent's contention that at this meeting the Complainant conceded he was on a salary of €42,000. The Complainant stated that no such meeting had ever taken place. The Complainant stated that he had raised the matter again in August or September and was told that the company could not afford to pay him the higher rate.

When asked why he continued to work for a company that was, according to him, paying him less than what had been agreed, the Complainant said that he continued to work because he needed the money, he was getting married shortly and also he had hoped he might get a promotion.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

The issue for decision in this case is whether the Complainant was paid the salary that was agreed between him and the company. According to the Complainant he had a contract which stipulated that his salary was €46,000 per annum. According to the Respondent he had a contract which stipulated that the contract was for a salary of €42,000 per annum. In essence the case boils down to which contract is the real contract.

Legislation involved and requirements of legislation:

Section 5 of the Payment of Wages Act deals with the regulation of certain deductions made and payments received by employers. Section 5 (6) considers the situation when an employee has been underpaid or not paid at all:

(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.

Section 6 of the payment of Wages Act deals with a Complaint made to an Adjudication Officer.

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 5 as respects a deduction made by an employer from the wages 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 (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.

(2) (a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.

(b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment.]

Findings and conclusions

I have carefully considered all the evidence in this case. There is a conflict of evidence in relation to which contract of employment was the real contract. It seems strange to me that the contract mooted by the Respondent as the genuine contract pre-dates the contract which the Complainant put forward as the genuine contract; why send a second contract eight days after sending what the Respondent now puts forward as the real contract?

The Complainant also had supporting evidence by way of an email and a text, for his case that his was the real contract. He was adamant that he had not signed the contract put forward by the Respondent.

The Complainant did attempt to discuss the matter of salary shortfall with his employer but was given less than satisfactory answers. At no time did the employer negotiate or attempt to negotiate any changes to the contract.

In relation to signatures, neither contract allowed for the employer's signature and neither was signed by the employer, however there is no doubt a contract of employment did exist.

The going rate for a technician or the fact that the employee remained in situ are irrelevant to the claim. The question to be answered is was the Complainant paid what had been agreed between him and his employer.

Decision:

On the evidence produced at the hearing I am satisfied that the Complainant's contract is the real contract of employment. The evidence of the Complainant was strong in regard to the veracity of the contract he proposed as the genuine article. This contract stipulates a salary of €46,000 per annum yet he was paid at a rate of €42,000 per annum for a period of nine months; thus a deduction of €3,000 was made without agreement.

I the complaint is well founded and I award the Complainant €3,000.

Dated:   6^th December 2016