Complainant

Respondent

Anonymised Parties

General Operative

County Council

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-00029173-001

19/06/2019

The Complaint is that the Respondent unilaterally deducted and reduced the wages of the Complainant so as to contravene the Payment of Wages Act 1991.

The Complainant was in receipt of a travel allowance of €70 per fortnight since 2002. This was for travel to and from his place of work.   The Employer ceased paying it in March 2019 without any consultation or negotiation. It is argued that as this allowance was aid for over 17 years it was part of the employee’s contract. It is submitted, therefore that the Employer has contravened Section 5 of the Act which states that “an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by 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, or

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

Case law is cited in support of the arguments (McKenzie & Anor. V The Minister for Finance & Anor [2010] IEHC 461).

It is argued that the allowance previously paid to the Complainant was based on a ‘personal to holder’ basis, there was no objective justification or objective grounds for the respondent to have deducted/reduced it and the Complainant seeks full restoration and retrospection.

The Council understands that this issue relates to a dispute in relation to travel payment whereby historically on occasions when the Complainant went directly to work sites from his home using his own vehicle and he was provided with a travel payment of €7.07 per day on those occasions. However, when the Complainant went to work sites from the main depot he did not enjoy the travel payment; additionally when using council vehicles the travel payment is not paid.                                     Up to 19th March 2019 it was normal practice for the Complainant to go directly from his home to work sites using his own vehicle. However, as of that that date he was required to report to the main depot each morning at 8am and report back in the evening finishing at 4.30pm.   As the Complainant was travelling to work sites from the main depot (and not his home) he was not entitled to receive the travel payment. It is also the case that he travels to and from sites in a council vehicle and not his own vehicle.                                                                                                           Section 5 (6) of the Act provides –

“5. – (6) Where –

(a) 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

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 from the wages of the employee on that occasion”.

The Council contends that the payment of the travel payment is not a payment in the nature of wages that is properly payable in all circumstances and therefore is not a deduction within the meaning of Section 5(6) of the Act.

I note that the Complainant was in receipt of the travel allowance for some 17 years and I have every sympathy for him in the circumstances where the Respondent withdrew it without consultation or negotiation. The normal best industrial relations practice in situations such as this one would be for the employer to negotiate a buy out with the employee and his Union.                       However, this complaint has been referred under the Payment of Wages Act 1991 and it is only in the confines of this piece of legislation can I consider this complaint.

Section 5 (1) provides the regulations for deductions from an employee’s wages and Section 5 (6) provides for the concept of “wages properly payable”. These Sections of the Act have been referred to in both parties’ submissions above. I note that the Complainant was in receipt of a payment when he travelled direct to his place of work and was using his own vehicle. Therefore the payments were in the form of expenses incurred.   In this instant case, having considered the definition of wages in Section (1) (1) (b) (i) as :

“wages” in relation to an employee means any sums payable to the employee… provided however, that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment”.

Travel payments, definition of wages, expenses excluded from definition.