PWD182

The cognisable period for the purpose of the Act is 29^thApril 2016 to the 28^thOctober 2016.

In this Determination, the parties are referred to as they were at first instance. Hence M& J Gleeson & Co t/a C&C Gleeson is referred to as the ‘Respondent’ and Robert Nagle as ‘the Complainant’.

Background

The Complainant came to work for the Respondent following a transfer of undertakings in March 2016. At the time the transfer occurred the Complainant was in receipt of a gross monthly salary of €3,440.67 which he had been placed on in January 2016 for taking on additional duties plus fixed weekly expenses. He also had an entitlement to paid overtime when it was required.

Following the transfer, he received the same gross monthly payment for the months of March and April 2016. His salary was unilaterally reduced by the Respondent in May 2016 to the salary he was on prior to January 2016 which was €2616.29. He was also informed that going forward his weekly fixed expenses would cease and that all expenses would have to be vouched.

Complainant’s case

It is the Complainant’s case that his previous employer had reconfigured his salary in January 2016 to reflect a reduction in his fixed weekly expenses and additional work that he had taken on. This was the salary he was on at the point of transfer and the Respondent was aware of that prior to the transfer taking place. In his submission, he referenced a letter dated 24^thFebruary 2016 that he had sent to the Respondent in relation to his terms and conditions of employment and this set out the higher rate of pay that he was receiving at that point in time. As this was his salary at the time of transfer it was properly due to him and the decision by the company to reduce same was a breach of the Act. In relation to expenses and overtime his entitlement to these were set out in his contract and have been unilaterally changed by the employer. He had been paid for some but not all the overtime he had carried out. In his written submission to the Court he set out the overtime that he had not been paid for.

Respondent’s case

The Respondent does not dispute that the Complainant was receiving the higher salary at the point of transfer. However, when the Respondent carried out due diligence in relation to the transfer in December 2015 the Complainant was on a lower salary and they believe that was the correct salary. While there was nothing in the transfer agreement that restricted his salary from being raised it is their position that any increase could only have been temporary in nature as they are not aware of any extra duties that he is currently carrying outs. Alternatively, they argue that it was an overpayment and therefore they were entitled to stop paying the higher amount. They conceded that they probably should have engaged with the Complainant prior to stopping the money rather than waiting until he raised the issue with them after the money had been stopped

The Respondent does not dispute that they got the letter of 24^thFebruary 2016 but it was a very busy time and they did not realise there was an issue with the salary set out in the letter. In relation to the fixed expenses it is their position that they are obliged by the Revenue Commissioners to ensure that all expenses are vouched and that the Complainant has been advised of that. They were unaware of overtime that had not been paid. It is their position that where overtime is sanctioned and claimed in the proper manner it is paid. They citied, the fact that the Complainant confirmed that some of his overtime was actually paid. Following the Court hearing the Respondent reverted to the Court in relation to the specific overtime that was identified by the Complainant as not paid. It is their position having looked into the matter that the claim was not accepted for a number of reasons. 1) The claims were not made at the time they arose rather they were submitted in bulk at a later stage. 2)He had been requested on a number of occasions to submit his overtime claims and had failed to do so. 3) It was not recorded as to why the overtime was required and no explanation has been given in relation to same.

The applicable law

Section 1 of the Act states:

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:

(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 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6)states;

• “Where—
  • (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

    (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

  then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

It is clear from the definition of wages set out in the Act in s1 that expenses are not covered by the definition. The Court therefore has no jurisdiction to issue a determination on that matter.

In relation to the reduction in his monthly pay it does not appear to be disputed that he was on that rate of pay from January 2016 and that there was no engagement with the Complainant in relation to altering the rate. The Respondent it would appear is asking the Court to look behind the reason the pay increase was awarded by the then employer and to find that it was not appropriate for them to make that award at that time. It is not within the ambit of the Court under this Act to do so. The alternative proposition by the Respondent is that it was an overpayment but no evidence was adduced to support that contention. In all of the circumstances it appears to the Court that the higher rate of pay was properly payable to the Complainant.

Only a small element of the overtime submitted by the Complainant falls within the cognisable period. This relates to the period immediately after the transfer when there may have been some confusion over the rates and processes for claiming overtime. The Court is therefore prepared to uphold this element of the Complainants claim. However, it should be noted there is an onus on the Complainant to ensure compliance with any processes or procedure in place for the sanctioning/ paying of overtime.

Conclusion

The Court finds that the salary of €3,440.67 gross was properly payable to the Complainant and the shortfall that arose on foot of the Respondent’s decision to alter his pay falls to be back paid to May 2016. The Court upholds the Adjudication Officer’s decision in that regard.

In relation to the Complainant’s overtime claim the Court awards €1832.40 being the figure identified in the course of the hearing as arising during the cognisable period. This element of the award is in full and final settlement of the Complainant’s overtime claim.

The Court so decides.

Signed on behalf of the Labour Court



Louise O'Donnell
29th January 2018______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.