Complainant

Respondent

Anonymised Parties

A Telesales Executive

A Seafood Company

Representatives

Brian Dolan Peninsula Group Limited

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-00018182-001

27/03/2018

The complainant submits that the respondent failed to pay him mileage for travel expenses incurred by him for the period 1st of January 2017 to 2nd of January 2018.   The complainant submitted a claim under the Payment of Wages Act 1991 to the WRC on 27th of March 2018.

The Complainant submits that

he commenced employment with The Respondent on the 15th May 2016.

It was agreed that he would be paid mileage for travel expenses incurred by him in the course of his employment,

He submitted claims and was paid mileage expenses up to the end of 2016,

The respondent failed to pay him mileage for travel expenses incurred by him for the period 1st of January 2017 to 2nd of January 2018,

On the 2nd January 2018 he resigned his contract of employment,

On the 27th March 2018 the Claimant lodged a complaint under the Payment of Wages Act.

The respondent submits that

The Claimant” commenced employment with them on the 15th May 2016 and resigned on the 2nd January 2018,

The respondent provided a company vehicle and fuel card for the complainant’s use,

The complainant was not in possession of a full licence and so it was agreed as an interim measure that the complainant could use his own vehicle   and would receive payment in respect of mileage expenses incurred until he secured his full licence,

The complainant was advised in September 2016 that mileage payments would no longer be payable after the end of 2016 as there was a company vehicle and fuel card available for him to use once he secured his full licence,

The complainant had not secured his full licence by the end of 2016,

The complainant was paid mileage payments up to the end of 2016 but mileage was not paid after that date as per the agreement as the company vehicle and fuel card was available for him to use,

On the 2nd January 2018 the Claimant resigned his contract of employment,

On the 27th March 2018 the Claimant lodged a complaint under the Payment of Wages Act.

Preliminary Issue

The respondent submits that Section 1 of the Payment of Wages Act expressly excludes “any payment in respect of expenses incurred by the employee in carrying out his employment” from the definition of “wages” for the purposes of the Act. The respondent submits that the recovery of mileage expenses falls outside the remit of the Act.

The Claimant has alleged that he is due payment of approximately one year’s worth on mileage expenses. Section 5 (1) of the 1991 Act states

“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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction.”

In order to establish an entitlement under “wages”, Section 5 of the Act must be read in conjunction with Section 1 of the Payment of Wages Act which sets out the definition of “wages”.

Section 1 of the Act defines wages as

“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.

It is clear from these statutory provisions that the current claim in respect of mileage/travel expenses claimed does not fall within the definition of “wages” for the purposes of the act.     Accordingly, I am satisfied in the circumstances that the complainant’s within claim in respect of mileage which he alleges was due to him and was not paid, does not amount to an unlawful deduction from the complainant’s wages within the meaning of the Act.

I am thus satisfied that this claim cannot be upheld and accordingly the claim fails.

I find that this claim cannot be upheld and accordingly the claim fails.