ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00010233

Complaint(s):

Act Complaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00013327-001 27/08/2017

Date of Adjudication Hearing: 07/11/2017 Workplace Relations Commission Adjudication Officer: Maire Mulcahy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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:

Preliminary Point The respondent raised a preliminary point stating that section 42 (6) of the Workplace Relations Act 2015 prevents the adjudicator from entertaining a complaint “after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. They argued that his complaint was statute barred and that only weeks 44-47 (26/2/17-19/3/17) are within the reach of the Act. The trading account name was amended.

Background The complainant commenced employment with the respondent as a sales assistant/advisor on the 13/10/16. His agreed rate of pay was €9.20 an hour increasing to €9.35 in 2017. His contract specified a requirement to work 8 hours a week but it is accepted that his hours well exceeded same. His contract specified that he would be paid at the end of every 4 weeks. During the course of his employment he was paid on two occasions only; he received one cash payment of approx. €1000 in Mid- November and a further processed payment was made to him in December 2017 of €2130. Having failed to secure the respondent’s agreement to pay him his due salary he resigned his employment on 23/3/17. He states he was not paid his correct amount. He filed a complaint with the WRC on 27/8/17.

Summary of Complainant’s Case:

Prior to taking up his position with the respondent, the complainant had worked as a supervisor with another company for 3 years. He commenced employment on the 13/10 /16. The agreed rate of pay was €9.20 an hour working an average of 40 hours per week increasing to €9.35 in 2017. Sometimes he worked in excess of 40 hours. He never received a wage slip. The complainant’s representative stated that the complainant could not identify the exact deficit in his salary owing to the failure of the respondent to supply him with copies of his rosters and his contract. Copies of correspondence demonstrated that requests for same were made on the 4/4/17, 21st and 28th July, 5th and 9th of August and 31st October. While the requests were acknowledged, apologies tendered and undertakings given to source the documents the complainant only received them a few days before the hearing on the 7/11/2017.The complainant estimates that he is owed approx. €3000 in outstanding wages. The complainant repeatedly asked the respondent to get a copy of his contract. He states that they failed to provide him with same. No salary was paid to him on the due date in November, December 2016, January 2017, February 2017 or in March 2017. Around the 13/11/16 the complainant asked the HR administrator plus another staff member why he had not received his salary for November. He went again to the respondent’s HR administrator on 20/11/16. She organised an emergency payment of circa €1000.The complainant advised that the HR administrator signed a receipt for this emergency payment of €1000 and placed it in the till. He was unable to retrieve it from the respondent, nor did he have a copy himself. His December salary was due around 20th December 2016. No salary was paid to him. He went back to the HR administrator and the line manager who stated that they could not understand why he had not been paid and would contact payroll on his behalf. Payroll organised a second emergency payment of €2130 which was transferred into his bank account on 28th December. He received no salary in January, February or March 2017. He was advised by the salary department that his account had been de-activated. He resigned on March 25th 2017. The complainant’s rep did address the issue of the late submission and asked that he be allowed extend time. He became unwell due to the non-payment of his wages resulting in an inability to pay his rent and he fell into arrears with his rent. The representative stated that the complainant ended up homeless due to the failure of the respondent to pay him his salary.

Complaint of Constructive Dismissal. The complainant’s representative made the case that the complainant had been constructively dismissed when the respondent failed to pay him his salary in November, December 2016 and in January and February and March 2017. The complaint form submitted to the WRC on the 27/8/17 did contain a statement that the complainant had been constructively dismissed due to the repeated non-payment/ withholding of wages.

Complaint of Breach of Terms of Employment (Information) Acts 1994-2014. The complaint form of 27/8/17 did state that the complainant had suffered a breach of this Act by the respondent’s failure to provide him with a contract and copies of rosters worked by the complainant in the period October 2016-March 2017. The complainant’s representative also referred to the letters sent to the WRC requesting that these matters be addressed.

Summary of Respondent’s Case:

The respondent again referred to the preliminary point stating that section 42 of the Workplace Relations Act, 2015 prevents the adjudicator from entertaining a complaint “after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. They argued that his complaint was statute barred and that only weeks 44-47 (26/2/17-19/3/17) are within the reach of the Act. During this period, they state that the complainant worked a total of 64 hours which amounts to €584 .38 gross. The respondent contends that the claimant was paid for this period. Without prejudice to their position on section 41 of The Workplace Relations Act 2015, the respondent set out the hours worked by the complainant and the corresponding wages payable for the period 10/10/16-25/3/17:

Hours worked and salary payable for period 10/10/16- 25/3/17.

Basic hours             192           €1780.80

Overtime standard  378           €3486.90

Overtime at 1.5       1               €14.03

Sunday 0.5              28            €128

Total due Gross €5,410.5

Net due after tax € 3242.31.

The respondent stated that he received the following payments:

1/11/16 Cash advance €1000

28/12/16 Bank transfer of €2130.

The respondent advised that after the complainant submitted his complaint they processed a further payment of €3393 gross, broken down into the following net payments when emergency tax and overpayments were deducted.

30/8/17 Bank transfer €882.84.

7/9/17 Bank transfer €66.97.

Hence the net pay paid to the complainant for the period 10/10/16-25/3/17 was €4079.The respondent contends that the wages due to him after lawful deductions are €3241 net and that as he was paid €4017 net, he has been overpaid and is due no salary.

The respondent did accept that the way in which the complainant was paid was very irregular. They stated that this resulted from his delay in returning the signed contract and other relevant documentation until the 19/12/16.

Findings and Conclusions:

1.Extension of Time. I am obliged to address the respondent’s contention that other than for the period 26/1/17-19/3/17, which comes within the reach of the Act, the complaint is statute barred. Section 41(8) of the Workplace Relations Act, 2015 does allow for an extension of time – an additional six months- where the Adjudicator “is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. As to what constitutes reasonable cause, the Labour Court in Cementation Skanska Ltd. V Tom Carroll, DWT 0388 stated “It is for the claimant to show that there are reasons which both explain the delay and afford an excuse from the delay. The explanation must be reasonable, that it is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and the circumstances known to the complainant at the material time. The claimant’s failure to present the claim within the six-month time limit must be due to the reasonable cause relied upon.”. In extending the time the adjudicator” should consider if the respondent has prejudice by the delay” While the complainant’s late submission of a signed contract and bank details did not assist the prompt payment of wages, the respondent, nonetheless, treated the complainant in a shabby and careless manner. They failed to pay him his wages on the due dates, failed to give him reasons for non-payment one week in advance as required by section 5 (ii)(iv), chose not to supply him with details of when he had been overpaid and by how much or how they planned to recoup same. The complainant became unwell due to the failure of the respondent to pay him his wages, was unable to pay his rent, fell into arrears and lost his home. He was offered temporary accommodation by a friend. To be thrown into this situation because of the failure of the respondent to pay him his wages is, I consider, a disorientating experience. I accept that the combination of circumstances both explain and justify the delay in submitting the complaint outside of the statutory time limit. I am prepared to extend the time and admit the complaint from the 10/11/16.

2.It is common case that he received two payments: €1000 in November and €2130 in December, that he was to be paid at the end of every 4-week period, that he received no wages in January, February, March or April 2017 and that he worked between 406 hours (claimant’s calculation) and 412 (the respondent’s calculation) from 10/10/16- 25/12/16. What is in dispute is the number of hours worked by the complainant from 25/12/16- 25/3/17 and the amount of salary payable. What was not explained was the basis for overpayment, or indeed if it had occurred, and the method of recoupment. The respondent referred to an emergency tax rate of 40% but that does not explain a deduction of 100% for the January – March salary payments.

3.Wages due to the complainant. In examining the alleged failure of the respondent to pay wages properly due to the complainant I will look at the entirety of his employment. The following calculations are based on the documents and oral evidence submitted by the respondent and the screen shot of rosters submitted by the complainant and his oral evidence.

Respondent’s calculation of hours worked              Claimant’s calculation of hours worked

and salary due                                                           and salary due

10/10-25/12/17 412x €9.20 = €3790                         406x €9.20 = € 3735

+ Sunday payments = € 128.80                            + Sunday payments = € 128

                                                                               ( the Complainant had by now received €3130 gross).

26/12/15-25/3/17 158x €9.35 =€1477.30                  295x €9.35 = €2758

+Sunday payments =€ 14.03                                  + Sunday payment € 14.03

                                                                                + Leavers holiday €144 (deducted in a pay slip dated 20/4/17)

---------------------------------------------------------€5403                          --------------------------------------------€6779

a) Wages due for the period 10/10/16-25/12/16.

Based on the data above, the complainant was overpaid x8 hours which is equal to €73.60.

Taking the lower sum, that calculated by the complainant, there were unpaid wages of €3863 less the €3130 paid = €733 which is the gross amount owing to the complainant for the period 10/10/16-25/12/16.

b) Wages due for the period 25/1/216-25/3/17

The respondent states that the complainant worked 158 hours plus a Sunday, the complainant gave evidence that he worked 295 hours plus a Sunday.

4.Reasons for accepting the complainant’s evidence on the hours worked. The payment system was chaotic and devoid of the consistency and detail to which the complainant was entitled. Contrary to the complainant’s evidence that he did not receive pay slips, the respondent submitted salary slips sent to him at his address on 26/1/17,23/2/17,23/3/17,20/4/17, and 7/9/17. The pay slips were unintelligible. The respondent did not explain how the rosters submitted by the complainant were incorrect. The respondent did not submit any signed records of hours worked by the complainant from October 2016. The respondent did not explain how the alleged overpayment arose- the alleged trigger for the subsequent recoupment and non-payment- for which weeks, or by what amount. Hence, they had no accurate tally of actual hours worked and for which payment was due.

5.Was the Deduction fair and reasonable as required by section 5,(2),(ii) of the Act? Section 5.5 of the Act does permit deductions and states “nothing in this section applies to (a) A deduction made by an employer from the wages of an employee or any payment received from an employee by an employer where (i) The purpose of the deduction or payment is the re-imbursement of the employer in respect of any overpayment of wages” The contract states that in in cases of overpayment he will “agree to sign any repayment schedule determined by the company”. No evidence of any such agreement was produced. The contract of employment makes no reference to the fact that payment of salary is conditional on receipt of a signed contract where he has worked the hours. The contract signed by the complainant does state that salary will be paid into a nominated bank account. The complainant was not advised in advance of the due pay dates of 13/11/16, 18/12/16, 26/1/17,23/2/17, 23/3/17 or 20/4/17 as required by section 5 of the Act that his total salary would be withheld from him. His contract states that he was to be paid at the end of every 4-week period. The respondent furnished copies of 4 pay slips. The January ‘17pay slip identified an overpayment to the complainant of €2130 (same amount as that given to the claimant in December 2016 and which the respondent’s own records suggest was short €733 for the salary owing for the previous 12 weeks). Due to what was termed recovery payments he received 0.00 net on each of these 4 pay slips. It must be remembered that his salary was not dealt with until August 2017, five months after he had left the employment of the respondent. Balancing all these omissions against section 5.5. of the Act, I find that the deduction in all of the circumstances was not fair and reasonable as required by section 5, (2), (ii).

6.The amount of the deduction. The complainant when asked what he was owed for the period October -0 March identified the sum of €6450(gross) as an estimate. The complainant accepted that payments of €4079 had been made to him. Using the complainant’s documents and oral evidence I find that he was owed €2916 + €733(unpaid in 2016) = €3649 from which the net sum of €949 paid in September 2017 must be deducted. I excluded March 2017 from the complainant’s calculation as he was uncertain about this period. Hence, I find the total amount of wages payable to the complainant is €2700 subject to all lawful deductions.

7.Complaint of constructive dismissal It was identified as a complaint in the body of text contained in the complainant’s form submitted to the WRC. The complainant does not have the requisite 12 months’ service required by section 2. (1) (a) of the Unfair Dismissals Act, 1977 and therefore I do not have jurisdiction to hear this complaint.

8.Terms of Employment (Information) Acts 1994-2014, The Complainant signed a copy of his contract on line on 10/11/16. The respondent states that he submitted a hard copy of his contract on 19/12/6. It sets out the terms and conditions of employment as required by the Act and I find no breach of this Act on the respondent’s part.

Decision:

Section 41 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. I find the respondent to be in breach of section 5,(2),(ii) of The Payment of Wages Act, 1991. I decide that the respondent should pay the complainant €2700 subject to all lawful deductions.

Dated: 31st January 2018

Workplace Relations Commission Adjudication Officer: Maire Mulcahy

Key Words: Non -payment of wages; payment without wage slips; overpayment of wages; recoupment of overpaid wages.