Complainant

Respondent

Anonymised Parties

Academic Administrator

Educational institution.

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-00029395-001

01/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00029396-001

01/07/2019

The complainant worked with the respondent as an academic administrator from the 19 February 2018 until 27th May 2019 when he resigned.

He claims that the respondent made unlawful deductions amounting to €624.16 on the 31 May 2019.

He has a monthly salary of €2500. He works 37.50 hours a week over 5 days.

He submitted his complaint to the WRC on 1 July 2019.

The complainant worked with the respondent from the 19 February 2018 until 27th May 2019.

He received his final pay cheque on the 31 May 2019. He claims that the respondent paid him an incorrect daily rate of €108 as opposed to a correct daily rate of €115.38 and that consequently he was wrongfully deducted €29.58 in respect of days worked from 20 to 27 May.

The incorrect daily rate of €108 was also applied to his holiday pay.

In addition, the complainant states that he was wrongfully deducted a payment of €594.58 on 31 May 2019 for 5 annual leave days. He states this is based on the fact that 2 days, the 12 and 13 December 2018 were wrongly classified as leave, but his calendar submitted in evidence shows that he worked on those two days. Furthermore, he has an additional one day to carry over from 2018, plus the college Registrar promised him an additional two days paid leave as time in lieu for assisting in the relocation of the college premises on Saturday 1 and Sunday 2 September 2018, days which he could carry over into 2019.

The respondent completely ignored his questions about salary payment, and he found it hard to trust her on her calculations.

The respondent director denied that he had made an unlawful deduction from the complainant’s salary.

Deduction from salary in respect of leave entitlements

All employees are entitled to 23 days annual leave per annum. The leave year runs from 1 Jan to 31 Dec. Employees are permitted to carry over leave.

The complainant commenced employment with the respondent on 19/02/18 entitling him to 19.90 days holidays in 2018. In 2018 the complainant took 15 days annual leave, leaving 4.9 days to carry forward to 2019. The complainant ceased employment on 27/05/19 entitling him to 9.58 days annual leave in 2019. In 2019 the complainant took 9 days annual leave, leaving 5.48 days due to him for payment on cessation.

He was paid in his final payslip

     a full month’s salary from 21/04-20/05/2019

     5 days payment from 21/05 to 27/05

     5.48 days holiday pay.

The respondent argues that the evidence contained in the final payslip shows that the respondent made no unlawful deduction.

Subsequent to the hearing the respondent emailed the WRC on 11 September to state that a review of their records indicated that the complainant did not take holidays on the 12 and 13 December and that they were happy to agree to the additional payment of 2 days to compensate for this.

Days in Lieu.

The respondent states that the 2 days which the complainant states are owed to him for assisting with a relocation to a new premise on 1 and 2 September 2018 is a new issue. The respondent stated that there would be a contractual entitlement to paid time in lieu. The respondent director stated that he doubted if there was 2 full day’s work involved in the move.

Calculation of daily rate.

The respondent states he used a formula which he found on Revenue’s website to identify the daily rate of €108.61. He believes it is a correct calculation.

CA -00029395-001 and CA 00029396-001 are identical in every respect.

The complainant submitted observations after the hearing in response to the respondent’s email of 11/9/19. These observations concerned alleged breaches of the Organisation of Working Time Act, 1997 and the Terms of Employment (Information) Act, 1994. I can only consider complaints comprehended by the Payment of Wages Act, 1991 and this I have done.

CA -00029295 -001.

The question for determination is whether the respondent’s

       Calculation of the daily rate at €108.61 as opposed to the complainant’s requested rate of €115  

         and

       failure to pay the complainant four days annual leave

contravened section 5(1)(2) of the Act of 1991 which prohibits a deduction unless the

“deduction is of an amount that is fair and reasonable having regard to all the circumstances”.

Section   5 (6) of the Act of 1991 goes on to identify a deduction as follows:

“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) [….]

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,

Was the daily rate of €115.38 properly payable?

To demonstrate that this is so, the complainant must point to a contractual entitlement or an entitlement on some other basis to this rate.

The respondent paid a daily rate of €108.61 in respect of the 5 days salary for the period 21- 27 May 2019.

It is agreed that the complainant’s monthly salary was €2500 paid for over 12 months of the year. It is accepted that the complainant worked 5 days a week. I note that his cumulative wages for the year commencing on the 1 January and ending on the 27 May 2019, submitted in evidence in a payslip, indicate that he was paid €2500 for each month of 2019 which annually works out at €30,000 per annum or €115.38 per day. In contrast and without any advance written notice of the change, the respondent paid him at the altered daily rate of €108 for the 5 days owing from May 21 – 27 which on an annual basis would deliver a lower salary of €28,080. While the respondent referred to a revenue site for his calculations to determine the daily rate for the period of 5 working days from 21-27 May, nothing was produced to show the source of the divisor used by the respondent. No contract or agreement was provided to suggest that his salary should be calculated on other than annual salary divided by 52, divided by 5 to reveal the daily rate as had been the case hitherto.

Section 5 (1) (c) of the Act of 1991 prohibits a deduction unless the employee gives written consent to same. That did not happen in this case.

He was paid €543. 48 for the 5 days from 21- 27 May 2019. I find that the sum of €576.92 is properly payable. I find that this element of his complaint is well founded. That being the case, I require the respondent to pay the deficit of €33, subject to all lawful deductions, to the complainant.

He was paid 5.49 days annual leave on the 30 May 2019 at the daily rate of €108. For the reasons previously stated, I require the respondent to pay him €38 which represents the difference between the lower and higher daily rate subject to all lawful deductions for these annual leave days.

Failure to pay the complainant 4 days’ annual leave.

The complainant was not clear on the total amount of leave owed. I accept the respondent’s evidence that they honoured his entitlement to the contracted leave days save for their mistake (acknowledged on 11 September and after the hearing) and the disputed time in lieu days itemised hereunder.

The respondent after the hearing accepted that 2 days paid annual leave are owed because of this error in respect of the `12 and 13 December 2018. In circumstances where the respondent has not confirmed payment or the rate at which the complainant is to be paid, I find that the complainant is owed €230.76. I require the respondent to pay the complainant €230.76 subject to all lawful deductions for these 2 days.

The complainant is also claiming 2 days as time in lieu which he submits was promised to him by the respondent’s Registrar when he helped with the relocation of the college premises on 1 and 2 September 2018. The Registrar informed the complainant that he could carry over the two days as leave into the 2019 leave year which runs from January to December of each year. The respondent referred to an undisclosed contract which states that paid time in lieu is given for such eventualities.

An email from the Registrar requested him to work on Saturday 1 September. There is no request to work on the Sunday 2 September. The respondent disputes that the complainant worked on the Sunday 2 September.

On the basis of the respondent’s evidence that there was a contractual entitlement to paid time in lieu- a requirement for a payment to be properly payable, I find that the complainant did work on 1 September 2018 and is owed one day’s pay in lieu of that day which was to have been added to his holiday entitlement. I find no basis for any claim that he should forfeit the day’s pay because he did not seek or take these days before his resignation.

Based on the evidence, I find this element of the complaint to be well founded. I require the respondent to pay the complainant the sum of €115.38 subject to all lawful deductions in respect the unpaid time in lieu day.

CA 00029396-001.

The details of this complaint are an exact match of the previous complaint CA 00029395-001.

My findings are the same in the two complaints.

I find the complaint to be well founded.

In accordance with the details in the findings, I require the respondent to pay the complainant the total sum of €417 subject to all lawful deductions.