ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00015247

Parties:

Complaint(s):

Date of Adjudication Hearing:  14/12/2018

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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:

The Complaint was employed as a Driver where he submitted that he had been subject to illegal deductions from his wages from January 2018.

Summary of Complainant’s Case:

The Complainant submitted that the Respondent had not paid him correctly between January and June2018. He argued that he was entitled to travel expenses as part of his wages and that the Respondent had not properly paid him for his expenses from January 2018.

The Complainant submitted that he was paid €675 per week as stated in his contract which was to be inclusive of travel expenses which were €47 per day (€235 per week).  The Complainant submitted that this amounts to €1,222.

Summary of Respondent’s Case:

The Respondent submitted that the Complainant was employed as a heavy goods driver since 31^st January 2013. His contract of employment dated 19^th March 2014 identifies that the Complainant was then paid the gross weekly salary of €689.19. This gross pay was inclusive of subsistence payments as was stated in his contract of employment.  His pay slips indicate his wages amounted to €479.89 per week, plus expenses. The Respondent submitted the Complainant was paid subsistence as set out in the Irish Road Haulage Association guidelines for January to December 2018. The rate applicable for the Complainant was either €33.61 if he travelled more than 5 miles in less than 10 hours, or €47.03 if he travelled more than 50 miles with 24 hours absence.

The Respondent maintained the Complainant had raised a grievance in 2017 when he was seeking to get paid his subsistence allowance when he was on annual leave. The Respondent maintained the Complainant was not entitled to payment for expenses when on annual leave. However, in order to resolve the matter an arrangement was made as a goodwill gesture to compensate the Complainant, but the Complainant was not happy with this. He then sought to have his subsistence payments excluded and his salary raised to overcome his dips in income during the annual leave a public holiday periods. 

The Respondent advised it then reviewed matters and realised an anomaly in how it had been paying drivers’ subsistence rates. The Complainant amongst other drivers had been overpaid expenses, which were agreed rates with the Irish Road Haulage Association .   It therefore had to adjust the subsistence payments/expenses for all drivers. This adjustment resulted in reduction in subsistence payments to all drivers working on the site where the Complainant was employed. On that basis the Respondent maintained it had not made any unlawful deduction from the Complainant’s wages, and the adjustments were required due to an anomaly where he had been overpaid prior to the adjustment.

Findings and Conclusions:

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 requires that I make a decision under the relevant sections of that Act.

Section 5 (1) (a) of the Payment of Wags Act 1991 (the Act)  states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless 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.

Having reviewed the evidence I find that that Complainant’s contract of employment states his gross salary which includes his travel expenses.  I further note that the travel expenses paid to the Complainant should have been in accordance with the Irish Road Haulage Association guidelines.  I am satisfied that an adjustment had to be made to his expenses due to an anomaly that was discovered by the Respondent.

Furthermore, the payslip slips submitted by the Complainant demonstrates that his weekly pay is made up of basic pay of circa €479.89 per week plus expenses which could vary slightly on a week to week basis. Accordingly, it was obvious that the Complainant’s wages were made up of a set rate of pay, and varying expenses.

In light of the Complainant being overpaid for his expenses I find the Respondent was entitled to adjust the wages paid to the Complainant. Therefore, in accordance with Section 6 of the Act I do not find the complaint is well founded or that any unlawful deductions have been made to the Complainant wages.

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 requires that I make a decision in relation to a contravention under Section 5 of that Act.

As I do not find the Complainant has contravened Section 5 of the Payment of Wages Act, 1991 Act the complaint is not upheld.

Dated:   1^st August 2019

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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