Complainant

Respondent

Anonymised Parties

A Senior   Investigator

A Fire Investigation Firm

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 6 of    the Payment of Wages Act, 1991

CA-00004967-001

27/05/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00004967-002

27/05/2016

Complaint    seeking adjudication by the Workplace Relations Commission under Regulation    15 of the European Communities    (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations    2006 - S.I. No. 507 of 2012

CA-00004967-003

27/05/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 27    of the Organisation of Working Time Act, 1997

CA-00004967-004

27/05/2016

Complaint    seeking adjudication by the Workplace Relations Commission under Section 14    of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00004967-005

27/05/2016

The complainant is a Senior Investigator and the respondent is an   independent fire specialist providing advice and expertise to clients. The   complainant was employed by the respondent from the 1^st April 2012   to the 31^st December 2015. His gross monthly pay was €6,500. The   complainant asserts that he is owed monies at the end of his employment. The   respondent denies the claims.

In   December 2010, the complainant began working with the respondent as a   consultant. He became a full-time employee in April 2012. On the 21^st   June 2013, he and the respondent reached an agreement that the complainant   would have a 10-hour billable day, allowing him a €230 allowance when he   achieved this. He outlined that on the 29^th April 2015, there had   been a fire in a storage unit and it had destroyed everything. The   complainant said that he had been under pressure between April to October   2015 when an allegation of fraud had been made against him. This was the   subject of a grievance hearing on the 6^th November 2015, which   found that nothing wrong had happened.

The complainant resigned from his employment on the 30^th   September 2015 and gave three months’ notice. On the 2^nd October   2015, he emailed the respondent to agree a shorter notice period. The   respondent declined this and wanted the complainant to work until the 31^st   December 2015. The complainant had ten days of outstanding annual leave and   the respondent agreed that this would be paid. The complainant’s letter of   the 5^th October 2015 gave the reasons for his resignation. After   this, the complainant’s working environment changed. The respondent claimed   title to both his phone and his phone number. He was told that he could not   contact any of his clients and had to obtain the permission of the respondent   before doing so. The complainant said this was stressful as the respondent   had been very successful and he had good personal relationships with clients.  

At this time, the complainant was assigned to work on a project at a   named location in the United Kingdom and he spent one to two weeks at this   location. This was the first time he had supervised a whole job for an   extended period in the UK. He seemed to be the busiest person in the company   and was bringing in €2,500 per day in billable hours.

The complainant outlined that he had taken sick leave because of   work-related stress. His periods of sick leave were the 16^th   October to the 2^nd November 2015 and the 9^th to the 13^th   December 2015. He had been asked to return to the UK location while on sick   leave, but he could not go.

On the 17^th December 2015, the complainant met with a   representative of the respondent to return the various items listed in the   inventory. There were a couple of items he did not return because he never   had possession of them, or because they belonged to him. He never had a   fleece or jacket belonging to the respondent, and the printer and most of the   hand tools were his. On the 18^th March 2016, the complainant was   told that he needed to return additional items, for example a monitor and a   harness. He did not have these items and they may have been destroyed in the   fire. He said that he had completed a post-fire inventory and sent this to   the respondent offices in the UK.

In respect of his pay, the complainant said that his gross pay was €6,500   per month. He was also entitled to mileage and expenses for purchases. The   agreement was that if he accrued billable hours of more than 10 hours in a   day, he would receive an allowance of €230. Billable hours were inputted into   an IT system and this would include travel time to and from a site. The   complainant said that he had worked up six days while on the UK site where he   was entitled to the €230 allowance for each day. He also accrued expenses of   around €117.

The complainant outlined that he was entitled to compensation of   €4,124.14 for days owed for sick pay, annual leave and time off in lieu of   work.

The complainant said that he should have received an overnight   allowance for the work at the UK location, and referred to a June 2013 email   to this effect. He had not been told that the overnight allowance was not   paid for overnight trips within the UK and Ireland and the first he knew of   this was after he left the respondent.

In respect of the complaints made pursuant to the European Communities   (Organisation of Working Time)(Mobile Staff in Civil Aviation) Regulations   and the Protection of Employees (Fixed-Term Work) Act, the complainant said   that he had incorrectly filled in the WRC complaint form and these claims   were selected in error.

In reply to the respondent, the complainant said that a significant   portion of the work was not billable. One would do well in billing 25 hours   in a week. At this time, he had restricted access to an IT system, so that   when he logged on he could only see the cases selected by the respondent.   While the complainant had some 300 cases, most had been concluded and some   were still open. In respect of the 27 non-billable hours in the week of the 5^th   October 2015, the complainant said that one could work up such a number of   non-billable hours in a week. He had not been able to use his phone and could   not contact clients in this week. He did not receive administrative support   in this week and had to do more administration than normal, reducing the   number of billable hours. He commented that there were weeks where he worked   50 hours but could only bill for 15 hours. He had also been the highest   earner in the company for a time. The complainant said that he refused to   hand over his number to the respondent and he still missed calls for him. In   respect of annual leave, the complainant said that he no longer had access to   his annual leave records, but that on the 23^rd February 2015, he   had 24 days of annual leave and on the 26^th May 2015, he had 19.5   days annual leave. In respect of his entitlement to TOIL, he said that as of   the 22^nd September 2015, he had 10 days remaining. He emailed the   respondent about this entitlement in October or November 2015 and this figure   was not challenged. The complainant said that he was entitled to 18 days of   sick leave, calculated pro rata on   his time in employment with the respondent, i.e. above three years but less   than four years. He had only been paid for 12 days of sick pay. He had met   staff of the respondent on the 15^th and 17^th December and   this represented work. He had not been paid for the December 2015 public   holidays. In concluding comments, the complainant said that he had not been   treated fairly.

The respondent outlined that the complainant’s contract of employment   provided for a three-month notice period and company policy was that the   respondent could direct employees not to contact clients. It was also   entitled to collect items it owned from the complainant. The respondent   stated that the overnight allowance was not available for work undertaken   within the United Kingdom and Ireland, and referred to earlier periods where   the complainant had not been paid this allowance. They were periods of work   on the 10^th October 2013, the 13^th February 2014, the   30^th July 2014 and the 15^th October 2014. It also   referred to the jobs in the UK of the 9^th and 18^th   November 2015. It submitted that the complainant had received his entitlement   to 15 days of paid sick leave.

The complainant’s last recorded day of work for the respondent was the   24^th November 2015. He obtained three days of sick leave in   December and was also paid for the public holidays in this month.

In respect of the work at the UK location, the respondent said that   the complainant had a monitoring role, as opposed to a supervisory one. They   agreed with the complainant that this would end in mid-December but that he   would be paid until the end of the month. His last, official day of work was   to be the 31^st December 2015.

The respondent outlined that a schedule of work had been devised to   ensure that the complainant completed outstanding reports before the end of   his employment. All this work was billable. It commented that the complainant   had accrued 27 hours of non-billable work in the week of the 5^th   October 2015 and this should not have occurred. The complainant then went on   sick leave and others had to do this work. These 27 hours were deducted from   the complainant’s pay in December 2015, an amount of €719.44. It was entitled   to make this deduction as the complainant had not followed an instruction   regarding completing billable work.

The respondent said that the complainant had a contractual entitlement   to 25 days of annual leave. He had carried over two days into 2015 and accrued   two TOIL days. The respondent said that the complainant had taken annual   leave over the following periods: 16 – 20 February, one day in April, 18 – 22   May, 2 – 6 June, 31 July – 4 August and 14 – 24 August 2015. A further period   of the 25 – 30 November was set off against the four days built up or carried   over by the complainant. The public holidays were the 25^th and 28^th   December 2015. The complainant was paid the amount he was due of €967.99,   remitted to him by electronic transfer.

In reply to the complainant, the respondent submitted that the   complainant was only entitled to 15 days of sick pay, and he had been paid   for this amount. The respondent did not accept that the complainant had   worked on the 15^th and 17^th December and that it   recorded that he was on sick leave on these dates. It said that the   complainant was never the highest earner in the company.

There are   five complaints to be adjudicated upon. Two were withdrawn by the complainant   at the adjudication as they were selected in error. They are the complaints   made pursuant to the European Communities (Organisation of Working Time)   (Mobile Staff in Civil Aviation) Regulations 2006 and the Protection of   Employees (Fixed-Term Work) Act. For the sake of completeness, it is readily   apparent from the evidence that the complainant was neither employed as   mobile staff in civil aviation, nor was he employed under a fixed-term   contract.

Also, for   the sake of completeness, I note that this was an employment that did not end   on harmonious terms. Prior to the end of his employment, the complainant   raised a grievance regarding an allegation made against him. In the complaint   form, the complainant asserts that he was placed in a position where the only   solution was to leave the company. The circumstances around the ending of the   complainant’s employment were not before this adjudication. There is no claim   of constructive dismissal. What is at issue are the three remaining claims   regarding monies the complainant asserts are owed to him. The respondent   denies these claims.

CA-00004967-001

The first   complaint is made pursuant to the Payment of Wages Act. In the complaint   form, the complainant states that the respondent did not pay him wages due of   €5,504.41 and expenses of €117.69. The amount of €5,504.41 is made up of   monies owed for expenses and an overnight allowance, pay due for days the   complainant says he worked as well as pay for annual leave (including days   carried over or accrued through TOIL) and sick pay. The respondent denies   that it is liable for these amounts.

Taking the   issues in turn, the respondent denies that the complainant can claim expenses   via a complaint made pursuant to the Payments of Wages Act. It states that   the complainant cannot recover the €117.69 claimed, but also that the   overnight allowance represents an expense.

The   relevant part of section 1 of the Payment Wages Act defines “wages” as   follows:

“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)   any sum payable to the employee upon the termination by the employer of his   contract of employment without his having given to the employee the   appropriate prior notice of the termination, being a sum paid in lieu of the   giving of such notice:

Provided however that the following payments   shall not be regarded as wages for the purposes of this definition:

any payment in respect of expenses incurred by   the employee in carrying out his employment…”

From the   evidence, the complainant claimed €117.69 in expenses, made up of mileage for   travel on the 15^th and 17^th December 2015, as well as   expenditure for phone credit and broadband. He also claims an allowance of   €230 for six days he worked in the UK, where he accrued over 10 billable   hours on each day. The terms of the allowance were set out in the   respondent’s email of the 27^th June 2013. Applying the High Court   decision of Cleary & Others v   B&QIreland Ltd [2016] IEHC   119 and the UK decision of London Borough of Southwark v O’Brien [1996] I.R.L.R. 420, it is clear   that expenses means “relating to” expenditure incurred by the employee. Applying   these authorities to the facts of this case, the expenditure associated with   mileage, roads toll, phone credit and broadband fall outside the statutory   definition of wages. The overnight allowance, however, is not related to   expenditure incurred by the employee and the respondent becomes liable for it   according to the nature and extent of work carried out by an employee. It is   not an expense and, therefore, the allowance falls within the scope of wages   as defined by the Payment of Wages Act.

Addressing   the substance of the complainant’s claim for the overnight allowance of €230   for six days worked while on site in the UK, I find that this claim is   well-founded. I do so for the following reasons. The terms of when this   allowance were payable are set out in the email of the 27^th June   2013. Those terms apply to six days claimed by the complainant. There is no   reference in the email to this work having to take place outside of Ireland   or the UK. The respondent referred to custom and practice, but it offered   insufficient evidence to displace the entitlement arising from the clear   terms of the email of the 27^th June 2013. The complainant is,   therefore, entitled to recover the amount of €1,380.

The second   issue to address is the claim made that the respondent made unlawful   deductions of pay for days the complainant says he worked. The complainant   says that an unlawful deduction of €719.44 in the   December 2015 pay cheque. The complainant states that he was entitled to   remuneration for the 15^th and 17^th December 2015, when   he met with employees of the respondent. The respondent states that the   deduction of €719.44 was made because of excessive non-billable hours worked   in the week of the 5^th October 2015 and that the complainant is   not entitled to count the 15^th and 17^th December 2015   as days of work.

Having   considered the evidence, I find that the claims made by the complainant   regarding the deduction of €719.44 and his entitlement to be paid for the 15^th   and 17^th December are both well-founded. While the respondent may be dissatisfied   with the complainant’s work over one particular week, the complainant   explained the work he completed in that week, in particular in the context of   closing files and the restrictions placed on him by the respondent in   contacting clients, i.e. billable work. There is no basis for the deduction   and the complainant is awarded €719.44. The complainant gave evidence of   carrying out employment-related tasks on the 15^th and 17^th   December 2015 and he is therefore entitled to recover remuneration for these   days. I note that he had sought to terminate his employment at an earlier   date, but the respondent insisted that he work his three months’ notice. Pay   for these two days amounts to €395.

The next   issue to address is the complainant’s entitlement to sick pay. Having   considered the evidence, I find that the complainant received the sick pay   entitlement he was entitled to according to his contract of employment. He   had completed three years of service and was therefore entitled to 15 days of   sick leave. The respondent provided details of the days he was paid sick pay   and they number 15. I find that the complainant is not entitled a higher   number of days pro rata, i.e. to   take account of months of service prior to the fourth anniversary of the   start of his employment.

CA-00004967-002

This   complaint is made pursuant to the Organisation of Working Time Act and   relates to hours of work, specifically receiving paid holiday/annual leave   entitlement. In respect of this complaint, it is fair to say that the   evidence presented an unclear picture. There were some 527 pages in the case   file, consisting of records, time sheets and correspondence. It is clear that   the complainant had a contractual entitlement of 25 days, on top of which he   carried over days and also augmented through TOIL. The respondent gave a   detailed account of the annual leave taken preceding the 1^st   December 2015 and by my calculation, this leaves the complainant with five   remaining days. This corresponds with the position as stated in respondent’s   letter issued at the start of this month. The respondent later sought to   include payment for this at the end of the complainant’s employment, and this   was returned by the complainant. I, therefore, find that the complainant is   entitled to cesser pay equivalent to five days’ pay for annual leave not   taken, including the TOIL accrued by the complainant.

CA-00004967-003

This is   the complaint made pursuant to the European Communities (Organisation of   Working Time) (Mobile Staff in Civil Aviation) Regulations 2006, which was   withdrawn by the complainant in the course of the adjudication. For   completeness, the complainant does not fall within the scope of the   Regulations.

CA-00004967-004

This is a   complaint made pursuant to the Organisation of Working Time Act and relates   to hours of work, specifically public holiday entitlements. It is clear that   the complainant was entitled to payment for the two public holidays in   December 2015, i.e. the 25^th and 28^th December. The   respondent remitted these monies to complainant and on the 19^th   January 2016, the complainant states he returned the cheque. I find that the   complainant is entitled to payment for these two public holidays.

CA-00004967-005

This is a   complaint of penalisation made pursuant to the Protection of Employees   (Fixed-Term Work) Act. The complainant accepted that he was not a fixed-term   worker and withdrew the complaint at the adjudication.

Section 41   of the Workplace Relations Act 2015 requires that I make decisions in   relation to the complaints in accordance with the relevant redress provisions   under Schedule 6 of that Act.

CA-00004967-001

For the   reasons outlined above, the complainant is entitled to recover the following   amounts pursuant to the Payment of Wages Act: €1,380 for six overnight   allowance payments; €719.44 unlawfully deducted from his pay and wages of €427   for work undertaken on the 15^th and 17^th December 2015.   The sum of these amounts is €2,526.44.

CA-00004967-002

For the reason   outlined above, I find that the complaint made pursuant to the Organisation   of Working Time Act relating to annual leave is well-founded and the   respondent shall pay to the complainant five days of annual leave.

CA-00004967-003

I find   that the complaint made pursuant to the European Communities (Organisation of   Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 is not   well-founded as the complainant does not fall within the scope of the   Regulations.

CA-00004967-004

For the   reason outlined above, I find that the complaint made pursuant to the   Organisation of Working Time Act regarding public holiday pay for the 25^th   and 26^th December 2015 is well-founded and I award the complainant   two days’ pay.

CA-00004967-005

For the   reasons outlined above, I find that the complaint of penalisation made   pursuant to the Protection of Employees (Fixed-Term Work) Act is not   well-founded.

Payment of Wages Act, section 1

Cleary & Others v B&QIreland   Ltd [2016] IEHC 119

Organisation of Working Time   Act