ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00010382

Complaints:

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00013818-001 07/09/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00013818-002 07/09/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00013818-003 07/09/2017   Date of Adjudication Hearing: 23/10/2017 Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaints to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.  

Background:

The Complainant was employed as Sales Manager from 3rd January to 23rd April 2017. He was paid €48,000 per annum. He has claimed that he is owed holidays, wages and a bonus.

1)Organisation of Working Time Act CA 13818-001

Summary of Complainant’s Case:

He stated that he was not compensated for holidays for the five months of this employment and he is claiming 8.5 days’ pay.

Summary of Respondent’s Case:

They stated that he had a total holiday entitlement of 6.4 days (1.6 X 4 months). He took 3 days’ absence which he was paid in respect of March 23rd and 24th and April 25th. He finished work on 26th April and was paid for 27th and 28th April. He started on 3rd January 2017 and was paid for the whole month including January 1st and 2nd. He was also paid an ex gratia payment of €1,600. He is not owed anything. This complaint is rejected.

Findings and Conclusions:

I note the conflicting evidence before this hearing. I find that the Complainant had a holiday entitlement based on 4 months’ actual service, amounting to 4 X 1.6 days per calendar month = 6.4 days. I note the that the 3 days of alleged absence is disputed in respect of March 23rd and 24th and April 25th. I find that these days were not disputed by the Respondent at that time. I find that these days may not be treated as holidays in the absence of any hard evidence otherwise. I find that the Complainant was dismissed on 26th April and was paid for the month of April which includes 27th and 28th. I find that he was paid in respect of January 2nd 2017. Therefore, I find that he was overpaid by 3 days and so is due 3.4 days’ holidays.        

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that the Complainant is owed 3.4 days’ holidays amounting to €627.69. I require the Respondent to pay the Complainant €627.69 for the economic loss, within six weeks of the date below.  

2)Payment of Wages Act CA 13818-002

Summary of Complainant’s Case:

The Complainant has claimed that his salary as reduced from €4,000 to €3,600 per month. This is an illegal deduction from his wages. He has claimed 4 X €400 = €1,600. The €1,600 paid was for lunch allowances.

Summary of Respondent’s Case:

The Respondent stated that there was no illegal deduction from his wages. The salary was made up of €3,600 basic and €400 expenses per month amounting to €48,000 per annum. The €1,600 was an ex-gratia payment, a form of severance payment.

Findings and Conclusions:

I find that Sec 1 (1) (b) of the Act states that expenses are not part of wages “ the following payments shall not be regarded as wages for the purpose of this definition (1) any payment in respect of expenses incurred by the employee in carrying out this employment.” Therefore, I find that expenses cannot be used to make up a wage and so must be discounted. I find that the contract of employment provides for €48,000 per annum, which is €4,000 per month. He was paid a salary of €3,600 per month. I find that this alleged expense was not paid on a monthly basis and the Respondent referred to the €1,600 payment at the cessation of employment as a payment for him “to go”. I find that these explanations by the Respondent are contradictory. I find that the Respondent stated that the Complainant was entitled to €400 per month expenses and there was no evidence of that being paid. Also I cannot adjudicate upon an expenses claim as it is not defined as wages. If on the other hand the Respondent is stating that the €1,600 was a severance payment, not a lunch allowance, then it cannot be treated as wages and so either way the Complainant was owed €400 per month as he only received €3,600 per month, not €4,000 as per his contract. Therefore, I find that the Respondent has breached Sec 5 of this Act and the Complainant is owed €1,600.

I note that Sec 6(2) of this Act states, “the commissioner shall order the employer to pay to the employee compensation of such an amount … not exceeding (a) the net amount of wages”

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that the Respondent has breached Sec 5 of this Act. I require the Respondent to pay the Complainant €1,600 less statutory deductions within six weeks of the date below.

3)Payment of Wages Act CA 13818-003

Summary of Complainant’s Case:

1)Bonus The Complainant has claimed a performance bonus of 30 % of salary. 2) Overpayment The Complainant is claiming an illegal deduction of €455.

Summary of Respondent’s Case:

1)Bonus The Respondent stated that the bonus was subject to the achievement of key performance indicators (KPIs). He did not achieve his targets and so no bonus was payable. His employment was terminated because he did not perform. 2) Overpayment The €455.04 was a tax refund overpayment and the Complainant signed his consent to have it deducted and repaid over 12 months.

Findings and Conclusions:

1)Bonus I find that the Complainant had no evidence of achieving the targets. I find no basis for this complaint. I find that this part of the claim fails. 2) Overpayment of tax I accept the Respondent’s position that this was a tax refund overpayment and that the Complainant gave written consent to have it deducted over 12 months. Sec 5 (1) of this Act states,“An employer shall not make a deduction from wages of an employee (or receive any payment from an employee“ and Sec 5 (1) (c) “in the case of a deduction, the employee has given his prior consent in writing to it.” I find that the Complainant has given his written consent to this deduction. I find that no breach of the Act has taken place. I find that this part of the complaint has failed.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that these claims fail. Dated:   18.12.2017 Workplace Relations Commission Adjudication Officer: Eugene Hanly Key Words: Holiday pay, wages and bonus