Complainant

Respondent

Anonymised Parties

An Employee

A Parcel Delivery Service

Representatives

Edward Fitzgerald & Son Solicitors

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-00027334-002

26/03/2019

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

CA-00027334-003

26/03/2019

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

CA-00027334-004

26/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00027334-006

26/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00027334-007

26/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00027334-008

26/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00027334-009

26/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00027334-010

26/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00027334-011

26/03/2019

The complainant submitted claims on the 26th of March 2019.     I proceeded to a hearing of these matters on the 18th of October 2019. Both parties were present at the hearing.

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

CA-00027334-002

26/03/2019

The complainant submits s that his employer made an unlawful deduction from his wages on 7th of January 2019, the amount of the deduction was €322.00

The respondent submits that there was no unlawful deduction from the complainants wages.   The only deduction was due to tax changes which were explained to the complainant.

Section 5 provides that. — (1) 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 virtue of 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 the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee),

The complainant has submitted that his employer made an unlawful deduction from his wages on 7th of January 2019 to the amount of €322.00. The respondent advised the hearing that there was no unlawful deduction from the complainants wages and that the only deduction made was due to tax changes due to PAYE modernisation which were introduced by Revenue as of the 1st of January 2019.

The respondent advised the hearing that the tax changes were explained to the complainant and he was advised by the respondent to register with myAccount as instructed by revenue in order to claim his tax credits.  The respondent stated that the complainant failed to register his tax credits and so was placed on emergency tax which affected his wages.   The respondent advised the hearing that it had in fact overpaid the complainant at this time in order that he would get some take home pay as otherwise he would have had no wages due to the emergency tax situation and the lack of tax credits. The respondent stated that it had intended to balance out the overpayment in wages once the complainant had sorted out his tax credits but that the complainant left the employment in January 2019 before they had a change to recoup the overpayment.   The respondent added that this was all explained to the complainant by Mr. P owner of the business. The respondent provided the complainants payslip which showed that the deduction of €322 was made up of PAYE, PRSI and USC.

The complainant at the hearing argued that the amount shown on his pay slip was more than he was being paid and that the amount of tax showing was excessive. This is in line with the respondents explanation of the reason for the deduction.   The complainant, therefore, was not paid less than that owed to him as it was not properly payable to him. I declare that the complaint is not well founded.

I am satisfied that the amount of €322.00 does not amount to an unlawful deduction for the purpose of Section 5 and accordingly I declare this complaint to be not well founded.

I declare this complaint to be not well founded.

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

CA-00027334-003

26/03/2019

The complainant submits that

his employer has not paid him has paid him less than the amount due on the 30/01/2019.

The amount of wages/pay not received is €312.50 and the amount of holiday pay not received amounts to €250 giving a total of €562.50 outstanding and owing to the complainant

The respondent submits that

The complainant Is not owed any money as he was in fact overpaid.

Section 5 provides that. — (1) 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 virtue of 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 the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee),

The complainant has lodged a claim for both Holiday pay and payment in respect of his notice period under this claim reference. He submits that he is owed to €250 in respect of holiday pay and is €312.50 in respect of notice pay.   He has also submitted a separate claim for payment in lieu of notice under CA-00027334-004.

The respondent advised the hearing that the complainant is not owed any money either for holiday pay or for notice and stated that the complainant was in fact overpaid during January 2019 and left at the end of January 2019 before this overpayment could be balanced out and recouped by the respondent.  

The respondent advised the hearing that at the start of 2019, due to the introduction of PAYE modernisation by the Revenue Commissioners employees were required to register with Revenue to manage their own tax credits.   The respondent stated that a letter, (copy submitted), was issued to each employee advising them what was required.    The respondent stated that the complainant did not engage with this new system and as a result had greatly reduced tax credits which lead to his net pay being greatly reduced. The respondent told the hearing that it had in the circumstances generously increased the complainants gross pay so as to ensure he had net earnings which he could live off, but with a view to rebalancing the wages once the proper tax credits were in place.     The respondent stated that this was explained to the complainant at the time, but he did not engage or accept the explanation.   The respondent produced the complainants payslips for January 2019 and went through the amounts paid and the tax deducted.   The respondent also advised the complainant that the amounts deducted for tax which were unusually high due to his failure to register his tax credits were not deducted by the respondent.   The respondent told the hearing that the complainant was issued with payslips which showed a much higher wage in order that he would have a decent take home pay at this time.   The complainant acknowledged that he had been paid in accordance with the amounts shown on the payslips.

The complainant stated that he resigned on the 24th of January and that he was at the time owed 3 days holidays which he was not paid for.       The complainant submits that he was owed €250 in outstanding holiday pay and €312.50 pay in notice pay.

The respondent advised the hearing that there was no holiday pay or notice pay owing to the complainant as the complainant was overpaid due to the respondent front loading his wages at a time when he had failed to register for his tax credits. The respondent stated that this was explained to the complainant at the time and it was the respondent’s intention to recoup/rebalance the overpayment in later payments, but the complainant resigned his employment before the respondent had a chance to do this. The respondent provided oral and written evidence in support of these assertions.  

The complainant stated that he was told by payroll that he was owed 3 days holidays which amounts to €250. The respondent disputed this but did not have any records or documentary evidence to support this apart from an assertion that the complainant had already been compensated for these holidays due to the overpayment in his wages.  

While I note the respondents position that it had already overpaid the there was no evidence adduced to suggest that the complainant had been a party to any agreement which would suggest that he had agreed to forego his outstanding holiday pay to offset the previous overpayment made to him by the respondent.    

Accordingly, I am satisfied that the at the complainant had an entitlement to receive his outstanding annual leave payment which he submits amounts to €250 and I declare that this complaint is well founded.  

The complainant has also submitted that he was entitled to one weeks’ notice pay which he did not receive at the end of his employment.   The complainant stated that he handed in his resignation on a Saturday and agreed to work until the end of the week which he did but he advised the hearing that he was not paid for the hours worked during his notice period.   The respondent did not dispute that the complainant did not receive his notice pay but submitted that this amount was covered by the overpayment of his wages during January 2019.   The complainant has submitted that the amount of notice pay due to him is €312.50.  

While again I note the respondents position that it had already overpaid the complainant, there was no evidence adduced to suggest that the complainant had been a party to any agreement which would suggest that he had agreed to forego his final week’s pay during his notice period to offset the previous overpayment made to him by the respondent.  

Accordingly, I am satisfied that the at the complainant had an entitlement to receive his notice pay for the final week of his employment which he submits amounts to €312.50 and I declare that the complaint is well founded.

I declare that the claims in respect of notice pay and holiday pay are well founded.

I declare that the claims in respect of notice pay and holiday pay are well founded, and I order the respondent to pay the complainant €562.50 in respect of these matters.

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

CA-00027334-004

26/03/2019

The complainant submits that he did not receive his payment in respect of his notice period.

The respondent submits that the complainant was overpaid during January 2019 and thus no payment is outstanding.

The matter of notice pay was also claimed under CA-00027334-003 and so this is a duplicate complaint.     I declare that the complaint is not well founded

I declare that the complaint is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00027334-006

26/03/2019

The complainant submits that he

Was not provided with a written contract or terms of employment.

The respondent submits that

The complainant was aware of his terms and conditions of employment.

The complainant advised the hearing that he had worked for the respondent for over four months but did not receive a contract or statement of his terms and conditions during this time. The respondent advised the haring that it was at the time starting out a new business having taken over the franchise from another company.

The respondent advised that the business grew from a small operation, involving seven vans, operating from the respondent home, to a larger business, where over forty vans and a distribution centre are involved, in a short space of time.   It added that the working hours varied throughout the year, depending on demand and stated that it could not specify the hours to be worked in advance as it did not know.

The respondent stated that the complainant was aware of his terms and conditions of employment but acknowledged that he had not been provided with a contract or document setting out his terms and conditions of employment.   The respondent added that it has since drawn up and provided contracts to all of its employees.

I note that the respondent acknowledged that he did not furnish the complainant with the complete terms and conditions of his employment as required under the Terms of Employment (Information) Act, 1994 and therefore this complaint is well founded.

I find this complaint in relation to a breach of the Terms of Employment (Information) Act, 1994 to be well founded and I order the respondent to pay the complainant €300 in compensation.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00027334-007

26/03/2019

The complainant submits that he was not notified in writing of a change to his terms of employment

There was no change to the complainants terms of employment

The complainant submits that he was not notified in writing of a change to his terms of employment. The complainant told the hearing that that the respondent had tampered with his payslips in January 2019 and stated that the amounts of Gross Pay which he was allegedly being paid did not correspond to his actual Gross Pay. He stated that the amounts cited as Net Pay were correct and corresponded to the wages received by him.   The respondent advised the hearing that this matter is already dealt with under the payment of wages claim CA-00027334-002. The respondent advised the hearing that the change to the payslip does not amount to a change in the complainants terms and conditions and was merely a change in the amount of tax paid by him due to PAYE modernisation which was introduced by revenue as of the 1st of January 2019.  

The respondent advised the hearing that the changes were explained to the complainant and he was advised by the respondent to register with myAccount as instructed by revenue in order to claim his tax credits. The respondent stated that the complainant failed to register his tax credits and so was placed on emergency tax which effected his wages.   The respondent advised the hearing that it had in fact overpaid the complainant at this time in order that he would get some take home pay as otherwise he would have had no wages due to the emergency tax situation and the lack of tax credits. The respondent stated that it had intended to balance this out once the complainant had sorted out his tax credits but that the complainant left the employment in January 2019 before the y had a chance to recoup the overpayment. The respondent added that this was all explained to the complainant by Mr. P owner of the business.

I am satisfied from the totality of the evidence adduced that there was no change to the complainants terms of employment and accordingly I declare this claim to be not well founded.

I declare this claim to be not well founded

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00027334-008

26/03/2019

He did not receive his terms and conditions of employment as set out in an ERO.

ERO s do not apply to his industry.

The complainant has submitted a claim that he did not receive his terms and conditions of employment as set out in an ERO. The complainant did not particularise this claim and did not provide any details of which ERO he was referring to.   The respondent advised the hearing that ERO s do not apply to the respondent business which provides a parcel delivery service.   The complainant at the hearing did not dispute this. Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00027334-009

26/03/2019

He did not receive his terms and conditions of employment as set out in an SEO.

SEO s do not apply to his industry.

The complainant has submitted a claim that he did not receive his terms and conditions of employment as set out in an SEO. The complainant did not particularise this claim and did not provide any details of which SEO he was referring to.   The respondent advised the hearing that SEO s do not apply to the respondent business which provides a parcel delivery service.   The complainant at the hearing did not dispute this. Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00027334-010

26/03/2019

The complainant submits that he was unfairly dismissed but did not have the required 12 months service.

The complainant was not dismissed, and resigned without warning, leaving the respondent in difficulty.

The respondent advised the hearing that the complainant was not dismissed but resigned his employment. The complainant at the hearing agreed that he had resigned his employment. The complainant has submitted a separate claim in respect of his resignation which he submits amounted to a constructive dismissal. This is dealt with separately in complaint reference CA-00027334-011.   Accordingly, I do not recommend find in favour of the complainant in respect of this claim.  

I do not recommend find in favour of the complainant in respect of this claim.  

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00027334-011

26/03/2019

The complainant submits that he had to leave his job on the 24th of January 2019 due to the conduct of his employer or others at work (Constructive Dismissal).

The respondent disputes this and submits that the complaint resigned his employment but was not was subject to a constructive unfair dismissal.

This is not a claim of constructive dismissal under the Unfair Dismissals Act but an Industrial Relations claim of constructive dismissal.

The Unfair Dismissals Act does however provide the definition of constructive dismissal which is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

What is at issue here is whether or not it was reasonable for the complainant to resign his employment and whether the respondent has behaved so unreasonably as to leave him with no choice but to resign.

The respondent advised the hearing that the complainant resigned without warning,

The complainant advised the hearing that he was forced to resign from his job due to the fact that his wages were not right for weeks and were decreasing every week even though his hours did not change, and he also submits that no tax was being paid and he was provided with false payslips. The complainant submits that he had meetings about this with Mr. K and with payroll but to no avail.

The respondent advised the hearing that at the start of 2019, due to the introduction of PAYE modernisation by the Revenue Commissioners employees were required to register with Revenue to manage their own tax credits.   The respondent stated that a letter, (copy submitted), was issued to each employee advising them what was required.     The respondent stated that the complainant did not engage with this new system and as a result had greatly reduced tax credits which lead to his net pay being greatly reduced. The respondent told the hearing that it had in the circumstances generously increased the complainants gross pay so as to ensure he had net earnings he could live off, but with a view to rebalancing the wages once the proper tax credits were in place.     The respondent stated that this was explained to the complainant at the time, but he did not engage or accept the explanation.   The respondent produced the complainants payslips for January 2019 and went through the amounts paid and the tax deducted.   The respondent also advised the complainant that the amounts deducted for tax which were unusually high due to his failure to register his tax credits were not deducted by the respondent.   The respondent told the hearing that the complainant was issued with payslips which showed a much higher wage in order that he would have a decent take home pay at this time.   The complainant acknowledged that he had been paid in accordance with the amounts shown on the payslips.

Having considered all of the circumstances and the evidence adduced in this case I cannot find that the Respondent’s conduct was so unreasonable or could justify the Complainant’s terminating his employment by way of constructive dismissal.   I also find that it was not reasonable for the complainant to resign his employment in the circumstances. Accordingly, I do not recommend in favour of the complainant in respect of this claim.    

I do not recommend in favour of the complainant in respect of this claim .