ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00010088

 Complaint:

ActComplaint Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00013205-001 20/08/2017   Date of Adjudication Hearing: 22/11/2017 Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 20th August 2017, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Payment of Wages Act. The complaint was scheduled for adjudication on the 22nd November 2017. The complainant attended the adjudication. The Principal attended for the respondent limited company.   In accordance with Section 41 of the Workplace Relations Act following the referral of the complaint 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 complaint.  

Background:

The complainant seeks the recovery of €1,137.08 he says is owed to him. The respondent denies the claim.

Summary of Complainant’s Case:

The complainant worked for the respondent between January and May 2017. Some monies were owed to him for January, April and May and they have not been paid to him. The complainant is owed €278 for January, €449.39 for April and €410.69 for May. These are net figures as his contract of employment provided that he would be paid partly via pay slips and the rest being paid as expenses. The agreement provides that his salary would amount to €45,000. The amounts the complainant is owed are expenses incurred on visiting construction sites. They agreed that these visits would be paid. They are calculated according to mileage.   In reply to the respondent, the complainant said that he worked for another company in December 2016 when the Principal of the respondent approached him to work for the respondent. The complainant was still contracted with the other company, but he also began working for the respondent. The contract kicked off at the end of January 2017 and the respondent was to pay the complainant salary and the expenses. A set fee that was paid in February and March, but not in April or May. In respect of the end of his employment, the respondent Principal said to the complainant that he did not want him to be there. He gave the complainant to the end of May and then told the complainant to go home. The complainant had to drag his salary out of the respondent and this was later paid. They also spoke about the January payment and the other monies, and the Principal asked to be given time. This was a strategy as he was not willing to pay. The complainant gave him signed expenses sheets for every month from February to the end, of which the respondent paid some. The complainant concluded by saying that he was asking for what had been agreed, including the January payment.  

Summary of Respondent’s Case:

The Principal attended for the respondent company and confirmed that it was a limited company. The complainant’s employment did not start until the 30th January 2017 and he received an ex gratia payment for work in the office. The Principal could not understand where the €278 figure sought by the complainant came from. In respect of the two mileage claims, the respondent had no record of the mileage taking place. There was an expectation that the complainant would spend a great deal of time on site, but this did not happen. The respondent had paid everything owing salary-wise and the complainant left the end of May.   The Principal stated that the contract start date was the 30th January 2017. He expected there to be €400 in expenses per month. The complainant resigned by letter. He did not have the experience to visit sites. The respondent could not pay unvouched mileage or for something prior to the start of the contract.  

Findings and Conclusions:

The complainant seeks payment of €1,137.08, made up of amounts of €278, €448.39 and €410.69, incurred in January, April and May 2017. The employment offer states that the complainant’s salary was €45,000 per annum and that he would be paid mileage for visiting construction sites.   This is a complaint made pursuant to the Payment of Wages Act and redress may only be awarded within the scope of the Act. The complainant confirmed at the adjudication that the amounts claimed were for mileage incurred in visiting construction sites. Section 1 of the Payment of Wages Act defines “wages” as: “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: (i) any payment in respect of expenses incurred by the employee in carrying out his employment, (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii) any payment referable to the employee's redundancy, (iv) any payment to the employee otherwise than in his capacity as an employee, (v) any payment in kind or benefit in kind.”   Section 6 provides for redress where there has been a deduction in the wages due to the employee. Recovery under the Payment of Wages Act may only be awarded for wages that fall within the definition of the Act. Given that expenses are expressly excluded from the definition of the “wages”, I cannot make the award sought by the complainant. It is, therefore, unnecessary for me to determine the conflict between the parties as to whether the monies were owed by the respondent to the complainant.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.   CA-00013205-001 I find that the complaint made pursuant to the Payment of Wages Act is not well-founded as the complainant seeks the recovery of amounts due as expenses, which do not fall within the scope of the Payment of Wages Act.  

Dated:   17/01/2018

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words: Section 1 / definition of wages Exclusion of expenses