ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029971
Parties:
| Complainant | Respondent |
Parties | Dana Ziuzina | Tu Dublin |
Representatives | Oleg Jacubet | Niamh Ní Cheallaigh |
Complaint:
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-00040257-001 | 05/10/2020 |
Date of Adjudication Hearing: 03/06/2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties confirmed that they understood this and were agreeable that the hearing would proceed on that basis. It was also explained to the parties that where there is a serious conflict of evidence in the complaint before an Adjudication Officer that will require an adjournment of the hearing to await the amendment to the Workplace Relations Act, 2015 to grant Adjudication Officers the power to administer the oath and to provide a punishment for the giving of false evidence. Both parties confirmed their understanding of this point.
Background:
The complainant was employed as a Postdoctoral Researcher with the respondent from 21/12/2015 until 13/06/2020. She was paid €45,041 per annum. When she resigned from her position she was paid for outstanding annual leave and paid up to 13/06/2020. The complainant disputes the method of calculation used by the respondent in calculating her daily rate of pay for the purposes of annual leave and days worked up to date of resignation. |
Summary of Complainant’s Case:
The complainant commenced employment with the respondent on 21/12/2015 as a Postdoctoral Researcher. This was a fixed term contract which was subsequently extended by one year. The complainant submitted her resignation letter on 07/05/2020 and indicated that the date of resignation would be 13/06/2020. When she received her final pay slip she was paid €1,260.48 as salary and €1,000.91 as holiday pay. The complainant contacted the respondent in July 2020 and queried the method of calculation. She provided a copy of a payroll manual which outlined the method to be used. This was that her working days per annum should be used in the calculation. The result of this calculation was that if 262 days was used then her daily rate would be €172. Based on this method the complainant submits that she is due €376 in holiday pay and €106 in salary. The respondent’s payroll department responded and outlined the method that they used. This was that the complainant’s annual salary was divided by twelve months and divide that figure by the number of days in the month that the complainant leaves. This is then used to calculate the amount due for any annual leave not taken. The complainant did not accept this and referred the matter to the WRC on 05/10/2020. |
Summary of Respondent’s Case:
The respondent confirms that the complainant resigned with effect from 13/06/2020. She received her final pay which included payment for 8 days annual leave. However, she should only have been paid for 5.5days but the respondent did not seek to recoup this. The respondent’s payroll team replied to the complainant on 03/07/2020 and outlined that their standard procedure for the calculation of annual leave due is to divide the salary by 12 months, divide that by the number of days in the month the employee leaves and multiply that by the number of annual leave days due. The respondent refutes that there is any claim under the Payment of Wages Act as there was no unlawful deduction of wages made. The complainant never received any payment below her contractual salary. The respondent submits that Section 5(6) of the Payment of Wages Act, 1991 states: “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 in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deduction as aforesaid) are paid to the employee, 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 the occasion.” As the complainant worked until 13/06/2020 she was only entitled to be paid up until that date. The respondent summitted in evidence that it is instructed by the Department of Education and Skills as to how to calculate such payments. A circular, known as Circular 10/52, clearly outlines that when “calculating salary payable in respect of periods of less than one calendar month … the amount of salary payable should be calculated as the proportion of the appropriate monthly salary based on the number of days in the month in question.” The respondent submits that the complainant has received all the wages which were properly payable to her and only deductions which were required by virtue of statute were made and therefore constitute lawful deductions. |
Findings and Conclusions:
The core issue in this case is the method of calculating the daily rate of pay. There are many methods for doing so and in each case the outcome may differ slightly. The reason for this calculation in this case is to determine what the daily rate is in order to pay the complainant for a specific number of days within the month in which she resigns. On the basis of the evidence adduced at the hearing and the submission received the complainant has failed to establish that there was an unlawful deduction from her salary. The respondent has adhered to the provisions of the relevant circular and applies this to all cases where an employee resigns before the end of a pay period. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons outlined above I find that this complaint is not well-founded. |
Dated: 12th July 2021
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Deduction. Final salary. Calculation of daily rate of pay. |