Complainant

Respondent

Parties

David  Kenny

APCOA Parking (IRL) Ltd

Representatives

  In person.

Gavin Cumiskey, Peninsula

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-00040450-001

16/10/2020

The Complainant is employed by the Respondent as a Traffic Warden. He commenced employment in January 2013 and remains in employment.

The complaint was submitted under s.6 of the Payment of Wages Act, 1991.

This complaint was received by the Workplace Relations Commission on 16th October 2020.

The Complainant contends the following:

1.      The Respondent company, the employer applied for the TWSS (Temporary Wage Subsidy Scheme) in April 2021, this being the result if the Covid pandemic.

2.      The Complainant was on the TWSS for the months of April, May and June 2021. This meant that the Complainant was paid his average earnings for January and February as net pay. In the Complainants case this meant a payment of €1,843 for both May and June.

3.      The payment for the month of April was slightly different due to the Respondent’s late application for this subsidy. In April the Complainant was paid €1949 as a gross payment but the Complainant states that this was his net pay.

4.      At no point did the organisation cease to work, they have worked throughout the Covid pandemic.

5.      The Respondent Managing Director wrote to all employees on 29th May 2020 expressing the company’s gratitude and admiration to all staff members currently performing their duties in the County Kildare on street contract during the most difficult of circumstances.

6.      The Managing Director then went on to say that the company qualify for the Government’s Temporary Wage Subsidy Scheme (TWSS). He went onto say that no additional payments can be added to the payroll and this would unfortunately mean that no overtime payments could be made during this period.

7.      The letter went onto say “A full reconciliation by employee would be completed once the scheme ends. This will include comparing what has been paid to each employee against the hours worked during the period and calculating the difference outstanding. Any underpayment will be reimbursed promptly thereafter as soon as is practicable”.

8.      Due to only being paid an average wage the employees were not being paid their full wage.

9.      The Complainant now feels that he is due the difference between what he was paid and what he should have been paid.

10.   The Complainant produced the following figures:

Introduction:

1. The Respondent, APCOA Parking Ireland Limited, is a parking solutions provider

operating throughout Ireland. It employs circa 200 employees.

2. The Claimant is employed by the Respondent in the role of Traffic Warden

from 28th January 2013 and this role is ongoing.

3. The Respondent understands that the Claimant seeks adjudication by the

Workplace Relations Commission under section 6 of the Payment of Wages Act,

1991 in respect of wages pertaining to the months April, May and June 2020.

4. The Respondent submits that the Claimant has been paid all monies owing to

him and denies this claim.

Background:

5. The Claimant is employed by the Respondent and was employed at the relevant

period of time as a Traffic Warden.

6. On the 24th March 2020 the Government announced the Temporary Wage

Subsidy Scheme (TWSS) to assist businesses to maintain staff during the early

days of the pandemic. The Scheme was set up to subsidize employees’ wages

to allow the business to remain open. The Respondent availed of this scheme.

7. Various different levels of subsidy were implemented with the Claimant falling

within the bracket of having previous average take home pay between €500

and €586 per week. The level of subsidy in this case was 70% of what the

previous weekly average take home for the employee pay in January and

February 2020. The employer could then top this up by another 30%.

8. In January 2020 the Claimant’ take home pay as per his payslip was €1,902.31.

in February his take home pay was €1,785. The average over these 2 months

was €1,843.

9. In April the Claimant was paid as per his hours worked. Please see attached

the relevant payslip.

10. As per the claimant’s claim form, he worked 176.5 hours in May. His

hourly rate as per his claim papers is €11.48. This amounts to €2,026.22 gross.

The Claimant was paid through the TWSS and received €1,843 being the

average of the net wages for January and February as per the Government

Guidelines. This was broken down as follows: -

• €1,516.67 – GovC19 wage sub

• €326.99 – Misc Allowance.

This was essentially the 70% as wage subsidy and the employer topped that up for the further 30% as a miscellaneous allowance.

11. As this was calculated through the TWSS the Respondent did not carry

out any tax calculations on the whole amount and simply paid what was

calculated, using the Guidance of the Revenue, as the average for January and

February. Had the Claimant’s hours been paid as per the normal process this

would have meant that he would have received less than he was actually paid.

He would have received €1,747.95.

12. As per the claimant’s claim form, he worked 174 hours in June. His

hourly rate as per his claim papers is €11.48. This amounts to €1,997.52

gross. The Claimant was paid through the TWSS and received €1,644.48 being

the average of the net wages for January and February as per the Government

Guidelines. This was broken down as follows: -

• €1,516.67 – GovC19wagesub

• €155.29 – Misc Allowance.

There was a clerical error in this payment and the Claimant was under paid.

this was rectified through adjustments in September and October. The

Claimant was paid €81.60 in September and €171.70 in October.

13. As this was calculated through the TWSS the Respondent did not carry

out any tax calculations and simply paid what was calculated, using the

Guidance of the Revenue, as the average for January and February. Had the

Claimant’s hours been paid as per the normal process this would have meant

that he would have received less than he was actually paid. He would have

received €1,726.51.

14. The Respondent would categorically state that the claimant is not owed

any money. The Respondent would state that the Claimant has actually

benefitted from the payment through the TWSS and has been paid €238.65

more than he would have been paid had his wage payment been

calculated under the normal fashion.

15. The Respondent would state that the Claimant’s case is unfounded and

should not succeed.

16. The Respondent reserves the right to raise further evidence at hearing.

Respondent Post Hearing Submission.

·        On reviewing the Claimant’s tax Balancing statement there is an underpayment of tax due in the amount of €569.33 to be collected over a period of 4 years through an adjustment in tax credits.

·        There is a tax adjustment at Panel 7B which increases his tax due by €1,477.88 which is detailed as U/P Collected and Refunds Received.

·        This is broken down as follows, €312.80 U/P Collected and €1,165.08 Refunds received.

·        Neither of these refer to the Temporary Wage Subsidy Scheme and one certainly refers to refunds previously received.

·        Had these refunds that were previously received not been included there would have been a refund due on the tax account for the year. Any underpayment of tax for the year ending 31st December 2020 has nothing to do with the Temporary Wage Subsidy Scheme.

·        The Respondent would submit that neither of these amounts relate to the Temporary Wage Subsidy Scheme and the Claimant has had no monetary loss whatsoever as a consequence of the Wage Subsidy Scheme.

No PAYE employee has the good fortune of taking home their gross pay.

From figures supplied by the Respondent I believe the following table shows the calculations that should have been done by the Complainant:

I have considered this complaint and considered the arguments presented by both parties.

There was no deduction made by the Respondent.

The complaint as submitted under s.6 of the Payment of Wages Act, 1991 is not well founded.

The complaint as submitted under s.6 of the Payment of Wages Act, 1991 is not well founded.

Payment of Wages Act, 1991. TWSS.