Complainant

Respondent

Anonymised Parties

Warehouse General Assistant

Wholesale Food Distribution co..

Representatives

Conor O’Gorman, IBEC.

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-00030408-001

21/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030408-002

21/08/2019

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

CA-00030408-003

21/08/2019

The Complainant is presenting three complaints:

CA-00030408-001. In this the Complainant says that the Respondent made an unlawful deduction from his wages.

CA-00030408-002. In this the Complainant says that he did not receive his full holiday entitlement from the Respondent.

CA-00030408-003. In this the Complainant says he was not paid or was paid less than that due to him by the Respondent

The Complainant says that he worked for the Respondent from the 26th November 2018 until the 29th July 2019, when he resigned.

In CA- 00030408-001 the Complainant says that his final salary from the Respondent had €537.62 deducted from it by way of repayment for accommodation which he says he was advised the Respondent was paying for in the context of the fact that the Complainant was coming to work for the Respondent, from Croatia.

The Complainant wishes to have this deduction refunded to him.

In CA-00030408-002 the Complainant says that he did not receive his full annual allowance based on the time he worked for the Respondent. He says that he carried 2 days annual leave over into the 2019 holiday year from the 2018 holiday year and together with 13 days annual leave in 2019 he had 15 days vacation in June 2019.

He says that on leaving the Respondent company in July 2019 there was a deduction of 5.52 hours (€62.40) from his final pay cheque. He says that this was an illegal deduction even though the Respondent says that he had not worked enough time to accrue the holiday amount he is claiming.

He is seeking the restoration of an amount of €66.69 to his account. This amount includes a sum of €4.65 of shift holiday pay.

In CA-00030408-003 the Complainant says that his pay, while working for the Respondent, had 3 elements, Basis pay, Shift Premium and an incentive pay offering which issued extra pay based on outputs. He says that this introduced a variability into his pay that was not accounted for in his holiday pay. He says, for example, that his average gross weekly pay in the 13 weeks leading up to his holidays in 2019 was €731.61(gross) (basic, shift and incentive premia) but that his holiday pay amounted to €444.46(gross).

He says that he is due the difference between these figures under Section 6 of the Payment of Wages Act, 1991.

The Respondent says that the Complainant signed a Contract of employment with the Respondent on November 26th 2018. As part of this the Complainant accepted the Respondent’s offer on relocation funding. This set out the terms of the relocation funding arrangement of reimbursement for travel and accommodation expenses up to a maximum of €1000, vouched by receipts. They say the agreement went on to say:

                           “In the event that I voluntarily terminate my employment with (the Respondent) within 24 months of the effective date of my new position ….. I will repay (the Respondent) for all relocation benefits and training/induction costs provided by the Respondent in connection with the relocation and commencement of my employment to a maximum of €I,000.

Repayment will be according to the following schedule:

Termination:

Within first year 100%

Within 15 months 75%

Within 18 months 50%

Within 24 months 25%

After 2 years 0%

I authorise (the Respondent) to deduct the above amounts from my last pay cheque”.

They say that the Complainant resigned on the 29th July 2019 – within the first year of his employment- and that the signed contract entitled them to recover their expenditure on his accommodation. This amounted to €537.66 and they say they provided the Complainant with a breakdown of this cost at his request.

So in respect of this complaint they are saying that they had an agreement with the Complainant for the refund to them of all accommodation costs incurred in circumstances where he left their employment and that this included their right to deduct this cost from the Complainant’s final pay cheque.

In relation to complaint CA00030408-002, they say that at the time of his resignation the Complainant had accrued 14.25 annual leave days. He had taken 15 days. They said that they had a right, in accordance with their agreement, to deduct to excess of .75 days taken, from his final salary.

They rely on the Section 5 of the Payment of Wages Act, 1991 for this action, which says:

(1)    An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless:-

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

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

They say that in the Complainant’s contract of employment, under the heading “Remuneration” it states that:

“The Company reserves the right to deduct from your pay any sums you may owe to it including, without limitation, any overpayments or loan made to you by the company”

I find that Complaint CA-00030408 -001 fails as, clearly the Complainant had agreed in writing to the deductions made from his final salary, in relation to the accommodation payments, which were clearly laid out in that agreement.

The find that the complaint in CA-00030408-02 also fails as the contract of employment specifically says that;

“The company reserves the right to deduct from your pay any sums you may owe to it including, without limitation, any overpayments or loan made to you by the company”.

I accept that where an employee does not work for a full year their annual leave entitlement is prorated to the time worked. In this there was this overpayment made which the Responded was entitled to recover.

With regard to CA-00030408-003, The Responded has not responded to this Complaint and I accept the Complainant’s submission that it was in breach of the Payment of Wages Act, 1991 not to include the bonus payments in the calculation of salary for Annual Leave pay entitlement.

I note that the Complainant’s calculation of the difference is that between a gross figure (in final salary) of €703.61 gross (including the bonus amount) and €446.46, gross, that he says was actually paid on that occasion. This was the only time holidays were taken during the Complainant’s employment with the Respondent. I find that the exclusion of the bonus payments from the calculation of holiday pay was in breach of the definition of pay in the Act and that, assuming there is no contest of the Complainant’s calculations (as there has not been), then a payment to the Complainant of €259.15 is due from the Respondent.

I find that complaints CA-00030408-001 and CA 00030408-002 fail, given my Findings commentary.

That CA-00030408-00 succeeds in accordance with my Findings commentary and that the outstanding wages due under this complaint, to the Complainant, be paid by the respondent