Complainant

Respondent

Parties

Complainant

Respondent

Anonymised Parties

Early Years Practitioner

Childcare Facility

Representatives

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-00022836-001

24/10/2018

The Complainant is an early years practitioner.  The Respondent is a childcare facility.

The Complainant lodged a case on the 24^th of October 2018.  Her employment ceased with the Respondent on the 24^th of August 2018.

Her case was that upon receiving her contract in October 2017 she noticed the wages that was stated as her hourly rate was incorrect.  The hourly rate as per the contract was €11.25 per hour.  The Complainant was aware that her hourly rate was €10.20 per hour.  She approached management about this. She did not get any satisfactory resolution.  She approached the owner of the business and the explanation given was that the figure in the contract was the amount of money it was costing the Respondent in terms of taxes etc.

The Complainant confirmed that she was not proceeding with any queries with regard to holiday pay. 

The Complainant calculated that on the basis that she was entitled to be paid a gross figure of €11.25 the sum of €1,562.40 was deducted from her wages between the period of the 20^th of October 2017 and the end of her employment on the 24^th of August 2018. 

The Respondent’s case is that the Complainant was aware that her initial hourly rate on commencement of employment was €9.75 per hour and this increased to €10.20 on the 8^th of September 2017.  The Respondent inadvertently inserted a figure of €11.25 as the hourly rate into the contract.  This is the figure that the Respondent had calculated that it was costing her to employ the Complainant on an hourly basis.  This included employer’s PRSI. 

The Respondent advised the Complainant of this.  Subsequently the Respondent was advised by her accountant that the figure she should have inserted into the contract was the exact hourly rate the Complainant was earning and not the overall hourly rate it was costing the Respondent.

The Complainant received a weekly payslip which set out the hours worked gross amount all deductions.  These payslips were issued by the Respondent’s accountant.

I was provided with a copy of the contract of employment.  It stated the hourly rate of pay as €11.25 per hour.  It was signed by both the Complainant and Respondent on the 23^rd of November 2017.

The Complainant furnished to me her payslips dating back to the 13^th of January 2017 to the date of the ending of the employment.  The payslip is a computerised payslip setting out the hours worked and the gross pay, deductions for PAYE, employee’s PRSI, social insurance charge.  It also gives an indication of the employer’s PRSI.  There’s a summary of payments, summary of deductions and calculation of net pay. 

I was also furnished a series of text messages between the parties dating back to September 2017.  The Complainant had raised a query with the Respondent as to how much she was being paid for a week and that she was going to contact the tax office.  The Respondent gave her the mobile telephone number for her accountant to contact.  The Respondent advised that the Complainant contact the accountant for an explanation of the payments being made.

I accept that the Respondent miscalculated the Complainant’s hourly rate of pay in her terms and conditions of employment.  Clearly, the Respondent needs to be far more careful in her calculations. 

From the commencement of her employment, the Complainant was never in receipt an hourly payment of €11.25 nor was she never intended to be paid an hourly rate of €11.25.  Therefore, what was set out in the terms and conditions on the 17^th October 2017 was an error.

The enforcement of contracts under common law is not within my remit. To ground a claim under the Payment of Wages Act, 1991, the wages concerned must be properly payable. The Labour Court has found previously in Department of Public Expenditure v. Brian Collins, PW/18/14 and in Aer Lingus v. Matchett, PW/18/18, that an error in a contract does not mean that the rate of pay set out in the contract is properly payable. In Aer Lingus v Matchett, PW/18/18, the Labour Court stated that ‘..the salary set out in the letter of appointment…was not the appropriate salary…and consequently must have been an error…therefore, it was not unlawful for the Respondent to deduct the monies..’

s.4(3) of the Payment of Wages Act provides that a statement containing an error or omission shall be regarded as compliant with the section of the Act where such error or omission is ’made accidentally and in good faith’. Furthermore, s. 5(6) of the Act makes allowance for ‘an error of computation’ by providing that deficiencies or non-payments that arise therefrom are not treated as unlawful deductions.

In this case the higher contract rate was never actually paid.  The Complainant received the hourly rate of pay that was properly payable to her.

I find the complaint is not well founded.

Error in Terms of Employment.  Unlawful deduction.