Complainant

Respondent

Anonymised Parties

A Traffic Warden

A Parking Management Company

Representatives

none 

none 

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-00040671-001

29/10/2020

The complaint is made by a Traffic Warden against the Respondent, a Parking Management Company, and relates to an allegation of an unlawful deduction of wages as a consequence of Covid-19 Wage Subsidy Scheme. 

The Complainant was employed by the Respondent since 8th January 2018 on a gross salary of €1,928 per month, €11.48 per hour. She submitted that she was paid less that she was entitled to be paid in April 2020 by €340, and in June 2020 by €236.  The Complainant submitted that due to Covid-19 she was required to isolate for two weeks during May 2020, and she received a Covid-19 payment for this period. She worked 11 days during May and received €1,400 in pay.

The Complainant maintained that as a traffic warden the Respondent was paid by the local authority and there was no reduction in her hours of work over this period.  On that basis the Complainant maintained she should have been paid the correct of pay of €11.48 for the hours she worked, and that the Respondent unlawfully deducted her wages to the amount of €576.

The Complainant submitted that she had received a letter from the Respondent informing staff that the company could not pay overtime during the Covid-19 Subsidy Wage Subsidy Scheme but it would include all hours owed to staff in the immediate monthly payroll after the Covid-19 Wage Subsidy Scheme terminates. The letter advised staff that a full reconciliation by employee will be completed once the scheme ends and that any under payment will be reimbursed promptly thereafter as soon as is practicable. The letter also advised that the current scheme was due to expire on June 18th (2020) but the Respondent expected the scheme to be extended. A meeting had been scheduled by the Managing Director to meet with staff on 3rd June 2020 to discuss the situation.

When the Complainant raised her concerns with the Respondent, she was advised that she had been overpaid by 75.5 hours.

The Complainant submitted her pay slips for April, May and June 2020 which show gross payments of €1,889.06 for April (168 hours plus 3 hours over time); of €1,403.44 for May (where only the Covid-19 subsidy is shown); and of €1,629.68 for June, where no hours of work are shown.  Based on these pay slips the Complainant received a total of €4,922.18, which based on her hourly rate of pay amounts to the equivalent of 428.78 hours of work.

The Respondent submitted that due to a downturn in business as a consequence of Covid-19, the company was granted the Covid-19 wage subsidy scheme.  It maintained that without this payment it would have ceased trading. 

The manager representing the Respondent at the hearing advised they had joined the Company after the Covid-19 subsidy payment scheme had been introduced.  They were of the understanding that the Company would have qualified for the Covid-19 wage subsidy scheme and the Complainant was paid in accordance with that scheme.  The Respondent maintained that it paid the Complainant the Wage Subsidy relating to her net average pay for January and February, and the Company paid the maximum top up which it could provide under the scheme. The Respondent submitted that it paid the Complainant as follows:

• For April 2020 - 168 hours basic, plus 8 hours overtime amounting to €1889.06 net paid with subsidy and top up (tax credit not added)
• For May- 88 hours worked hourly rate €11.48 is €1010.24 gross, wage subsidy of €1403.48 net paid Covid payment also claimed by employee
• For June- 176 hours worked hourly rate €11.48 is €2,020.48 gross. In scheme €1692.68 net paid with subsidy and top up based on average hours worked from Jan to Feb which was 169.8 hours. The Complainant was paid 5 hours less than she worked for this month, but this was a net payment not the gross amount figure above for hours worked.

Section 5 (1) of the Payment of Wags Act 1991 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 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.

The Complainant worked in total 440 hours (April 176 hours, May 88 hours, and June 176 hours). At €11.48 per hour this amounts to €5,051.20, (plus any holiday/public holiday entitlements not included in these figures).

Based on the pay slips provided it appears the Complainant received €4,922.18.  This amounts to a short fall of €129.02 for the actual hours she worked. However, it is not clear from these payments whether the Respondent has included the Covid-19 subsidy payments correctly, or that it has offset the Covid-19 subsidy for the Complainant who was actually working her full hours over the period, other than when she was absent from work due to a period of self-isolation.  The information provided by the Respondent is confusing. 

In effect, as the Complainant’s hours of work did not cease during the period, except for when she was absent due to having to self-isolate. I therefore find the Respondent should not have reduced the Complainant’s wages, or averaged her wages based on the wage subsidy scheme.

The Complainant was entitled to be fully paid at €11.48 per hour for each hour she worked irrespective of the Covid-19 subsidy. The Complainant never consented to a reduction of her hourly rate of pay, and on that basis the Respondent should not have adjusted the rate of pay. I therefore uphold the complaint that Respondent made deductions from the Complainant’s wages without her consent.

I do not conclude the Respondent intended to pay the Complainant incorrectly.

As I have found the complaint is well founded as respects deductions being made from the Complainant’s wages without her consent, I direct the Respondent to redress that matter and pay the Complainant her proper rate of pay for the 440 hours she worked over the period, at €11.48 per hour.

Payment of Wages Act, Covid-19 Subsidy