Complainant

Respondent

Anonymised Parties

A Carpenter

A Building Company

Representatives

Tom Fitzgerald, Unite the Union

Conor O'Connell. Construction Industry Federation, Cork Branch South Region

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-00019513-001

31/05/2018

This is a claim for travel time during 2018 , disputed by the Respondent.

The Complainant had worked as a Carpenter with the Respondent since June 1, 1994. He worked a 40-hour week in return for €750.00 gross per week. He is one of 5 employees.

On May 31, 2018, the Union claimed that the complainant had always been in receipt of travel payments in line with his contract of employment. The Union submitted that the complainant had been deducted €1,500 on January 2018 and this constituted an ongoing unlawful deduction in wages as the action was not accompanied by consent.

On the day of hearing, The Union approached the claim in a different manner by way of written submission. The Union claimed that travel payments between 9 February 2018 and 3 July 2018 were outstanding and this properly payable under the Act. The deficit referred to work completed on a project in Blarney.

The Union outlined the background to the claim. Between 1995 and 2017, the complainant had received travel time payments outside the REA Agreement. These arose beyond an 18-mile radius from home and an extra €.50 per extra mile over 18 miles. The Complainant did not receive these payments when based at the company workshop on the South Side of the city. He had previously received payment by means of a verbal agreement when based further south in the county.

The Complainant had not been given a contract of employment and the Union requested that the complainant be allowed some lea way on travel time as while not specifically mentioned in the Sectoral Employment Order (Construction) 2017 SI 455/2017(SEO) the Labour Court had acknowledged the presence of some legacy arrangements.

The Union referred to the precedential cases of Sullivan V Dept. of Education PW2/97 and Dunnes Stores (Cornels court) ltd V Lacey [2005] IEHC 417 and submitted Section 5(6) of the Act had been breached continuously.

The Union contended that they had advanced the case for payment with the Respondent and had not received a response. The Claim was calculated and revised as €105.00 during the hearing. The Union submitted details of payslips which incorporated the payment of travel time 2016 to July 2017.

The Respondent disputed the claim and explained that they had attended the hearing to address the written complaint and not the revised claim raised during the hearing. The Respondent Representative confirmed that the complainant had not been subjected to an illegal deduction of either €1500 or €105 in his wages.

The Respondent representative accepted that travel time had been paid to the complainant in the past but his present base did not come within the parameters for payment and the REA was not relevant to the facts of the case. There was no formal Agreement in existence between the parties on travel time and past payments had been discretionary.

The Respondent took issue that the claim had not been advanced through the grievance procedure and confirmed that none of the letters referred to in the complainant’s submission had been received by the Respondent.

The Respondent pointed to Statutory Time limits applicable to the case and denied any ongoing deduction.

I have considered both parties stated positions and the complainants written submission. Given the disparity in the outline of the claim at the commencement of the hearing, I afforded both parties some time to explore a clarification and potential resolution of the claim. While undertaken, it proved unsuccessful.

The claim was lodged on 31 May 2018.My jurisdiction in the claim is outlined in Section 41(6) of the Workplace Relations Act 2015 as 6 months beginning on the date of contravention. I find that I must confine my consideration of the case to the terms of the written text of the complaint. However, I accept the clarification offered by the Union that the amount of the alleged deduction stood at €105 and not €1500.However, during the hearing, the cognisable period of the claim was revised and outlined as February 2018 to July 2018. I cannot considerable the prospective element of the claim. The Union confirmed that the date of January 1, 2018 was not relevant in the case.

I considered the definition of wages outlined in Section 1 of the Act and I considered the associated exceptions to that definition.

On my perusal of the documents attributed as pay slips covering 2016/2017, I am satisfied that the manner in which travel was recorded placed the claim firmly in to a category of an “expense incurred in carrying out employment” and thus firmly outside the parameters of my jurisdiction on wages in accordance with Section 1(1)(a)(i) and SS. 5 and 6 of the Act. I have no jurisdiction to process this claim.

I have some concern that this claim appears to have circumvented local discussions. Given the extensive tenure of the complainant’s employment, I would urge the parties to exhaust these discussions prior to referral to a third party.

I have found the claim to be not well founded.

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.

Section 6 of the Payment of Wages Act, 1991 Acts 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the claim to be not well founded.

Travel Time