Complainant

Respondent

Anonymised Parties

A Technician

A Third Level College

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-00015931-001

21/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015931-002

21/11/2017

The complainant detailed that he is owed monies by way of compensation from the respondent in relation to cessation of overtime and that he was never advised that he would not be paid and was never advised as to why his employer would not pay him.

The complainant detailed that he was paid regular overtime from January 2012 until May 2016. This overtime was requested by the manager and therefore was mandatory. His pay thus formed part of his regular wages.

He was advised that this overtime was due to come to an end and applied for compensation for loss of overtime in line with LCR19995 which outlined how compensation would arise for actual loss of earnings arising from arrangements such as his.  

It was detailed that the complainant’s earnings from May 2015-May 2016 was €5,959.58 and his overtime between May 2016 and May 2017 was €758.16. The difference between the two was €5,201.42 and applying the compensation formula of 1.5, from LCR19995, the annual loss, compensation would be €7,802.13.

This compensation had been approved by the HR Manager Mr A who advised that the respondent would honour the payment. However, the Financial Controller Mr B would not honour this agreement but had yet to advise the complainant as to the reason why.

The respondent detailed that overtime is not an entitlement and the respondent reserves the right to withdraw overtime.

Mr A the HR Manager was not in attendance and Mr B, the financial controller, who had refused to authorise the payment of the monies, did not know why Mr A had authorised the payment in the first place but detailed that when he, as Financial Controller, was asked to sign off on it he did not as he did not believe that the overtime was mandatory.   He was unable to advise whether anybody had communicated with the complainant that the payment would not be paid after it had been promised and did not know if anybody had communicated with the complainant the reason why it would not be paid.

Section 1(1) of the Act defines wages as meaning “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,

Section 5(1) of the Act provides:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—  (a) the deduction (or payment) is required or authorised to be made by virtue   of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of   employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has   given his prior consent in writing to it.”

Section 5(6) details

( 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.

I note that the overtime was requested by the complainant’ manager and it was agreed by the HR Manager, Mr A to pay the compensation who issued an instruction to payroll to pay it, yet the payment was never processed and no reason given to the complainant. The respondent details that the complaint does not come under the terms of LCR LCR19995. Having reviewed the terms of LCR19995, I am satisfied that the complaint comes under the terms of the agreement namely “Where overtime is mandatory or contractual it becomes, in effect, part of a workers normal working hours and should be compensated for if discontinued”.

In Sullivan v Department of Education [1998] 9 ELR 217, it was determined that “if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”.

In the circumstances, I find that withholding payment of this bonus amounted to a deduction from the Complainant’s pay that was not authorised and accordingly, the payment of €7,802.13 is properly due and I hereby direct that the respondent pay to the complainant the payment of €7,802.13.

The worker detailed that he was paid regular overtime from January 2012 until May 2016. His pay thus formed part of his regular wages.

He was advised that this overtime was due to come to an end and applied for compensation for loss of overtime in line with LCR19995 which outlined how compensation would arise for actual loss of earnings arising from new arrangements.

This compensation had been approved by the HR Manager Mr A who advised that the respondent would honour the payment. However, it would appear that the Financial Controller Mr B would not honour this agreement but has yet to advise the worker that it would not be paid and also has never given any reasons why it would not be paid. Such explanation would be expected in line with the laws of natural justice and the failure of the employer to do so had caused the worker much stress.

The employer refuted the claim and detailed that overtime is not an entitlement and the employer reserves the right to withdraw overtime. It was disputed that an allowance should be paid where overtime ceases.

Mr A the HR Manager was not in attendance. Mr B, the financial controller, who had refused to authorise the payment of the monies did not know why Mr A had authorised the payment but detailed that when he, as Financial Controller, was asked to sign off on it he did not as he did not see the overtime as compulsory.   He was unable to advise whether anybody had communicated with the worker that the payment would not be paid or why it would not be paid and said he had communicated to Mr A that he would not sign off on it.

I find it extraordinary that nobody advised the worker, that despite the repeated promise of payment that the payment would not now be processed and also nobody advised him as to the reason why the payment would not be paid.

Due to the unique circumstances of this case I award the worker compensation of €350 to be paid for the failure of the employer to deal with the dispute in a timely manner and the stress which this caused.

CA-00015931-001

I hereby direct that the respondent pay to the complainant the payment of €7,802.13.

CA-00015931-002

Due to the unique circumstances of this case I award the worker compensation of €350 be paid to the worker for the failure of the employer to deal with the dispute in a timely manner.

Payment of wages, industrial relations act, overtime