Complainant

Respondent

Parties

Complainant

Respondent

Anonymised Parties

Toddler Room Leader

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-00022461-001

07/10/2018

The Complainant’s case is that she commenced employment with the Respondent in September 2016. She received a contract of Employment on the 17^th October 2017. It stated that she was to receive payment of €11.25 per hour.

The Complainant calculated from her pay slip that she was only being paid €10.26 per hour. In July and August 2018, the Complainant worked a three-day week, 24 hours per week.  Again, from her payslips she calculated that she was only being paid €9.75 per hour.

She queried this with the Respondent and was advised that the Respondent’s accountant was on holidays and she would check it with him when he got back.

The Complainant resigned from her employment on the 31^st July 2018 and gave 4 weeks’ notice to the Respondent.  The Respondent asked the Complainant to finish on the 24^th August 2018 as she had a new member of staff starting the following week.  The Complainant’s case is that while she did finish on the 24^th August 2018 she was available to work until the 31^st August 2018 and the Respondent made an unlawful deduction from her pay for that week.

The Complainant claimed that she was not paid for the August bank holiday.

The Complainant calculated she was due holiday pay also.  She had taken 13 days holidays, two weeks the crèche was closed, one day because the crèche was closed because of bad weather and one a Good Friday and one a sick day.

The Respondents case is that the Complainant requested to go on reduced hours to 38 hours per week and again volunteered to go for a three-day week for the summer months July and August.

The hourly rate that was properly payable to the Complainant was paid to her.  This was €9.75. 

The Respondent submitted that she had made an error in the calculation of the Complainants rate of pay when completing the contract of employment.  In error she added her employer’s PRSI to calculate the hourly cost of the Complainant’s employment.

The Respondent provided me a text dated February 2018 when the Complainant was going to be off work for a week and asked if the Respondent could pay holiday pay. The Respondent replied saying that she would transfer the usual weeks wages and to forget about holidays.

The Respondents accountant gave evidence. He confirmed that the Complainant always received payslips for the duration of her employment.

On the 20^th July 2018 which was week 29, the Complainant was paid a gross pay of €1,067.00 which equated to a nett pay of €1,024.56. The accountant gave evidence that this was holiday pay calculated on gross pay to the end of September 2018. He had calculated what the gross pay would have amounted to and worked out 8% of that. He deducted 3 days which the Complainant had taken on the 5^th of March 2018, the 19^th April 2018 and the 4^th May 2018. This equated to gross holiday pay of €833.04 and he added the weekly wage to same and came to a gross payment of €1,067.04.

S. 6(4) of the Payment of Wages Act provides for complaints to be lodged within 6 months. The reckonable period in this case is the period from 7 April to 7 October 2018 when the claim was lodged. The Complainant could have lodged her claim at an earlier date, so no ‘reasonable cause’ exists to justify a time extension.  Therefore, the assessible period for this claim is the 6 April 2018 to the 6 October 2018. 

I have reviewed the Contract of Employment dated the 17^th October 2017 and it does state that the Complainant’s hourly rate of pay is €11.25 per hour. 

Overall, I find that the Respondents payroll explanation to the Complainant were very poor.  It is in the Respondent’s best interest to understand payroll and give a more detailed explanation when paying holidays.  I have reviewed the payslip for week 29 and while the figures outlined by the Respondents accountant are set out, there is no explanation as to how the holiday pay was calculated.  The Respondent paid holiday pay in advance which is unusual.

I accept that the Respondent miscalculated the Complainant’s hourly rate of pay in her terms and conditions of employment.  Clearly, she 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.  Her hourly rate of pay was €9.75.  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.

As regards her holiday pay claim, I note that the Complainant states that she never asked to be paid in advance for holidays and she may never have been aware that she was paid in advance for holidays.  However, the facts remain that she was paid in advance for holidays and this was to her benefit. I don’t accept that there was an unlawful deduction by the Respondent in relation to her holiday pay.

I have not been furnished with any evidence to show that the Complainant was paid an addition sum for the August public holiday. I calculate this at €46.80 (one fifth of €234.00). The payslip for period 29 just stated “standard hours” €234, Holidays €833.04.  There is no reference in the holiday pay calculations to the August public holiday.

As regards week 35 which is the week ending 31^st August 2018.  The evidence submitted at the hearing indicated that the Complainant agreed to end her employment one week early on the 24^th August 2018.  No grievance was raised with the Respondent as to her request to leave on the 24^th August 2018.  The issue of an outstanding weeks pay was not raised while the Complainant in August 2018. 

I find the complaint in relation to the deduction for the August public holiday well founded and award the Complainant €46.80 gross payment.

I find the other complaints not well founded.

Error hourly rate of pay.  Unlawful deduction