ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005677

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00007885-001	28/10/2016
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00007885-002	28/10/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00007885-003	28/10/2016

Date of Adjudication Hearing: 31/03/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Location of Hearing: Room 4.05 Lansdowne House

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 together with Section 6 Payment of Wages Act, 1991 and Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints

Summary of Complainant’s Case:

The complainant commenced work with a third party refrigeration company in 1990. The third party refrigeration company were subcontracted by the respondent to install and maintain their beer systems. He worked continuously with them until the company was transferred over to the respondent via a transfer of undertakings agreement. The transfer occurred on the 01.03.2016. Prior to the transfer the complainant had taken on additional responsibilities within the company which attracted a higher wage. He took on those responsibilities due to the fact that his father was ill. His father owned and managed the third party company. At the time of the transfer the complainant was earning € 3,440.67 gross per month. Following the transfer he continued with most of the additional duties as his father is only working one day a week due to ill health. On the 31.05 2016 when the complainant received his payslip, he noticed that his salary had been reduced to that prior to him taking on his additional duties. He also noticed that his fixed expenses had been removed altogether. The respondent informed him that due to revenue rules he was not entitled to claim expenses unless they were vouched. Furthermore, he was informed that he was only entitled to his salary amount prior to taking on the additional duties, as his father was now back at work.

Summary of Respondent’s Case:

It is accepted that the third party refrigeration company was transferred to the respondent via a transfer of undertakings agreement on the 01.03.2016. The respondent carried out extensive due diligence prior to the transfer. Part of that due diligence was to establish each employees terms and condition of employment including their annual salary. The information gathered by the respondent in relation to his salary satisfied them that his salary was that prior to taking on the additional duties. They stated that he only took on those duties on a temporary basis while his father was absent from work. His father was now back at work and therefore he was no longer required to cover his duties.

In relation to the fixed expenses, the revenue commissioners have clearly stated in their rules that employees are not entitled to be paid fixed weekly amounts. All expenses must be vouched. On that basis the respondent is not entitled to pay the complainant the fixed weekly expenses he was being paid heretofore.

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.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Section 6 Payment of Wages Act, 1991 and Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) require that I make a decision in relation to the claim.

I am satisfied that the third party refrigeration company was transfered to the respondent on the 01.03.2016 pursuant to a Transfer of Undertaking Agreement in accordance with S.I 131 2003.

I am satisfied, based on the evidence, that at the time of the transfer to the respondent the complainant’s terms and conditions of employment in relation to his salary stated that he was to be paid a salary of € 3, 440.67 gross, €3,248.48 net per month. I am also satisfied that he continues to carry out the majority of his father duties due to his father’s ill health. On that basis, I find that the complainant is entitled to be paid € 3440.67 gross per month. The shortfall from 31.05.2016 amounts to € 824.38 per month for 10 months amounting to € 8240.38 gross. ( 31.05.2016 to 31.03 2017)

I fine that the respondent was merely acting on the information it received during its due diligence and that no finding of intentional wrongdoing could or should be made.

Should the complainant’s father return to full duties thus reducing the complainant’s responsibilities, it is open to the parties to negotiate the complainant’s remuneration at that juncture.

I am satisfied based on the evidence that the respondent would be in breach of the revenue commissioner’s rules should it continue to pay the complainant a fixed weekly rate for expenses. The complainant is entitled to vouched expenses only.

As there is an overlap in the claims submitted. On that basis I will make an award pursuant to Section 6 Payment of Wages Act only in relation to CA 7885- 003. I find that the claims CA 7885-001 and CA 7885-002 must fail.

I find that the complainant’s claim pursuant to Section 6 Payment of Wages Act in relation to this basic salary succeeds. I award the complainant to sum of € 824.38 per month from the 31.05.2016 to date.

I find that the complainant’s claim in relation to his fixed expenses fails.

Decision: 03/05/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly