Complainant

Respondent

Anonymised Parties

 A Driver

A Logistics Company

Representatives

Noel Murphy, IWU

 Proprietor

Act

Complaint Reference No.

Date of Receipt

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

CA-00039894-001

17/09/2020

This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

The claim was lodged on 17 September 2020 under the Payment of Wages Act, 1991. The Complainant, a Driver submitted that he had experienced a shortfall in his wages. This was disputed by the Respondent, who operated a logistics business.

The Complainant was represented by his Union and the Respondent was accompanied at hearing by his wife.

The Union outlined the claim on behalf of the Complainant. The Complainant was employed on a once off basis by the respondent on July 20, 2020 to go to England to collect a tank and return it to Ireland. He had agreed an hourly rate of €15.50. He received €635.00 in payment. However, he had recorded 61 hours of work and a shortfall remained of €310.00, the sum he was seeking at hearing.

He had already approached the respondent verbally and in writing for this sum. He had not received a response to his written request of 15 August 2020.

The Union contended that the Respondent had breached the Payment of Wages Act and the complainant sought payment of €310.00.

The Union did not accept that the respondent had not received the letter seeking resolution of the claim dated 15 August, as it had not been returned to the Union.

The Union considered the Respondent account of the variance in time sheets and confirmed that it was standing over the claim.

The Complainant addressed the hearing and indicated that he was unhappy in the employment as he had been asked to pay for Safe Pass Training which was not the norm in the Industry. He undertook to submit copies of the time sheets he submitted.

Post hearing, the Complainant submitted a series of text messages which incorporated 3 days work and inter party texts on training.

The Respondent disputed the claim. He told the hearing that the complainant was employed for long term work. He agreed that the rate of pay had been discussed on the phone and agreed at €15.50 nett. The Complainant was a first-time employee.

The Respondent outlined how pay was calculated for driving work in Ireland/UK and contrasted it with how he paid driving work in EU. A Tracker is placed in the Truck to record time.

He outlined that in the trip to UK, the complainant was not paid for sleeping, but was provided with subsidised expenses and a cabin on the ship. He was also paid for unloading. This contrasted with trips to Europe where the Driver stays in the truck and is paid per day.

On 31 July 2020, the complainant raised issues about his pay by text. The Respondent submitted that he had explained the wages paid thoroughly, but the complainant wasn’t happy. He wanted another €200.00 and threatened him with negative publicity. He then requested a further €250.00 for stress.

The Respondent outlined that the complainant had submitted a time sheet on July 23, where he recorded 45.5 hours and later added 7.5 hrs to that total. He was paid for 41 hours nett, which amounted to an enhanced sum as the complainant was unwilling to transfer his tax credits to the employment.

The Respondent confirmed that payment followed the moving truck and the complainant had recorded 940km. He did not cross examine the complainant.

He confirmed that the complainant had not been provided with a pay slip, but the pay slips were available at the business.

Post hearing, the respondent submitted a copy of the pay slip and text messages received from the complainant which incorporated 4 days’ work submitted over two intervals.

I have considered the submissions raised by both parties in this case. I have also reviewed the post hearing submissions from the parties which did not generate any further responses.

The claim is submitted under the Payment of Wages act, 1991 and the Union has claimed that the complainant was underpaid by €310.00. Considering neither party submitting any documentation linked to the employment prior to or during the hearing, it was necessary for me to probe the circumstances of the employment in the case.

Prior to hearing, the Respondent had inquired regarding the potential for facilitation of settlement in the case. I allowed the parties some time at the commencement of hearing to explore any potential for this. By then, the respondent had decided to press on with a defence of the claim.

The Complainant submitted that this was a once off job, which involved one return trip to the UK. He expanded on this at hearing when he confirmed that the Respondent had asked him to pay for his own training. He had not been asked to do this in 30 years. This does not fit with a once off employment. I must conclude that the parties had intended to enter a long-term working relationship when they agreed the pay prior to July 20.

It is regrettable that both parties did not demonstrate the application of the Employment Miscellaneous Provisions Act, 2018 which commenced on 4 March 2019 in this case. Since this date an employee is entitled to receive certain core terms of employment within the first 5 days of employment. This comprises name, address, duration of employment and rate of pay. Within 2 months, remaining terms of employment are to follow.

For information purposes, there is a 5-day sample statement on the WRC website.

My remarks on this consideration are of course peripheral to this case. However, applying some logic, the provisions of the Act overlap with the facts which unfolded in this case. I draw the party’s attention to this umbrella in a supportive way.

The Union has submitted that the complainant had a €310.00 deduction in pay on 23 July 2020. They went on to argue that this sum was properly payable in accordance with section 5(6) of the Act. The Respondent has stated that the Complainant was on the UK run where hours of work were linked to a moving vehicle /unloading time and not sleep time, which was covered by subsidised expenses.

I have not had the benefit of an Industry wide agreement on this or a contract of employment. I have had to rely on the evidence adduced by the parties.

It is important that I first state the law in terms of wage deductions contained in Section 5 of the Act.

Regulation of certain deductions made, and payments received by employers.

5.— (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 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), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

 (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), or

( b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions 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.

I have been asked to consider whether the sum of €310.00 was properly payable to the complainant?.

I accept that the parties engaged in a conversation prior to the complainant’s commencement in employment. I accept that €15.50 nett was the agreed wage.

I have established that the parties did not discuss the wage system as it applied in UK trips as opposed to EU trips in advance of that commencement. The Complainant sought” an hour for hour “pay mechanism at hearing, which the respondent contested.

A careful examination of the complainants owns submitted time sheet sent via text recorded 52.5 hours worked. This did not submit hours for the night of July 21. I appreciate that he sent in an extra 7.5 hrs on July 23.

I am also aware that he held a high level of grievance at being expected to cover costs for his training which he believed the respondent ought to cover and this prompted his cessation of employment. I have reviewed the text message where the complainant sought an additional payment for stress.

On examination of the pay slip, the respondent paid gross €1176.85 and nett €635.00.

To accept that the €310.00 was properly payable to the complainant, I would have to find that he was entitled to this sum from the outset of his employment, that is that the parties agreed on this pay mechanism and for some reason had departed from it.

I cannot establish that the complainant is entitled to receive €310.00 as properly payable wages. I have, of course found that there was a very ill-defined employment relationship which prompted a certain confusion. The Pay slip did not reflect hours worked. This is regrettable as pay ought to have been accompanied contemporaneously by a pay slip. I accept that the Respondent did explain the parameters of wages paid and the complainant did not accept that explanation.

It is also regrettable that the Union letter of 15 August 2020 did not prompt an engagement .

However, I have decided to accept the evidence of the respondent who explained the pay system operated in the complainant’s case. I have not identified a deduction in wages as a result.

I find the claim to be not well founded.  

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act, 1991, requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I find that the claim is not well founded .

Deduction in wages