FULL RECOMMENDATION
PARTIES : APCOA PARKING (IRL) LTD DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00030979. In April 2020, the Complainant worked 220 hours and should have been paid €2296 as a gross payment. Instead he was paid €1949 as a gross payment resulting in a shortfall of €347. In May 2020, the Complainant worked 176 hours and should have been paid €2026. Instead, he was paid €1843 resulting in a shortfall of €183. In June 2020, the Complainant worked 174 hours and should have been paid €1997. Instead, he was paid €1843 resulting in a shortfall of €154. The Complainant submits that he suffered a total deduction of €684 as a result of his employer’s failure to correctly pay him the gross amount of pay that he was entitled to be paid. In May 2020, the Managing Director outlined the rationale for availing of the Government’s Temporary Wage Subsidy Scheme (TWSS) and the payments that applied. The Managing Director gave an undertaking to staff that any shortfalls in pay would be reconciled once the scheme ended and any underpayments reimbursed. This did not happen. The Complainant says that his gross payments should be based on the actual hours that he worked in April, May, and June 2020. His employer’s failure to pay him his gross wages during these months is a deduction from his wages. POSITION OF THE RESPONDENT: The Respondent availed of the Temporary Wage Subsidy Scheme (TWSS) in April 2020. The level of subsidy available was based on a worker’s wages at 70% of weekly average net pay for January and February 2020. In January 2020 the Complainant’s net pay was €1,902.31. In February 2020 his net pay was €1,785. The Complainant’s average net pay over these two months was €1,843. Under the scheme the employer could top up the 70% subsidy to a worker’s average net pay for January and February 2020 (i.e. €1,843). No tax deductions applied to the 70% wage subsidy. The Respondent furnished the Court with copies of payslips provided to Complainant for the months of April, May, and June 2020. In April 2020, the Complainant was partially paid through the TWSS and received €1949.32 gross (€1919.70 net). The Respondent submits that had the Complainant’s wages been processed in the normal way he would have received €2,296 gross (or €1919.70 net) based on 182 hours worked. In May 2020, the Complainant was paid through the TWSS and received €1,843.66 gross (1815.33 net). The Respondent submits that had the Complainant’s wages been processed in the normal way he would have received €2,026.22 gross (or €1,747.95 net), based on 176.5 hours worked. In June 2020, the Complainant was paid through the TWSS and received €1671.96 gross (€1,644.48 net). This amount was an underpayment made through clerical error which was remedied through adjustments in September and October 2020. The Claimant was paid €81.60 in September and €171.70 in October. The Respondent submits that had the Complainant’s wages been processed in the normal way for June he would have received €1,997.52 gross (or €1,726.51 net), based on 174 hours worked. The Respondent submits that the Complainant benefitted from higher net payments through the TWSS in May and June 2020. In total he was paid €238.65 net more than he would have been paid had his wages been calculated under the normal fashion for April, May, and June 2020. No shortfall in wages arose. The Respondent submits that the Complainant has suffered no monetary loss whatsoever as a consequence of the Wage Subsidy Scheme. It submits that the appeal is unfounded and should not succeed. APPLICABLE LAW: The Act at Section 5(6) provides as follows: 5(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. Subsection (6)(a) of section 5 of the Act provides that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction. Section 6 of the Act sets out redress provisions for contraventions of the Act as follows: 6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding — (a) the net amount of the wages (after the making of any lawful deduction therefrom) that (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount. FINAL DETERMINATION: The High Court inBalans v Tesco Ireland Ltd [2020] ELR12set out that any consideration of a complaint under the Payment of Wages Act must first consider what wages were properly payable to an individual. In order to consider if a breach of the Act occurred in relation to the Complainant, the Court must first determine the amount that was properly payable to him in April, May, and June 2020, when his employer availed of the Temporary Wages Subsidy Scheme (TWSS). The starting point for assessing what is properly payable to an individual is the contract of employment. It is accepted that the Complainant had a contractual entitlement to an hourly rate of pay of €11.48 per hour during the period under consideration by the Court. His hours of work varied each month. In April 2020 the Complainant worked 182 hours. In May 2020 the Complainant worked 176.5 hours. In June 2020 the Complainant worked 174 hours worked. Having regard to the Complainant’s contract of employment it is clear to the Court that the amount properly payable to the Complainant was his hourly rate of pay based on the hours that he physically worked in April, May, and June 2020. The Complainant’s appeal rests on his assertion that the amounts properly payable to him during this period are gross payments. The Complainant submits that he suffered a total deduction of €684 (gross) as a result of his employer’s failure to correctly pay him the gross amount of pay that he was entitled to be paid for the hours that he worked. The Respondent submits that the Complainant suffered no loss and in fact benefitted from higher net payments during this period. It submits that because of the way that the TWSS subsidy was processed through payroll no tax liability arose for the Complainant. In total the Complainant was paid €238.65 (net) more than he would have been paid had his wages been calculated under the normal fashion for April, May, and June 2020. It submits that no deduction under the Act occurred. In response to questions from the Court, the Complainant accepted the notional gross and net figures provided by the Respondent to demonstrate what payments would have been made had the Complainant’s wages been processed in the normal way in April, May, and June 2020. The notional figures provided by the Respondent demonstrate that the net figures that would have been paid to the Complainant had his pay been processed in the normal way were in fact lower than the net figures actually paid to the Complainant during the relevant period. The redress provisions under the Payment of Wages Act provide that where a complaint in relation to an unlawful deduction is well founded that an employer can be directed to pay compensation of any amount not exceeding thenetamount of the wages that would have been paid to an employee if an unlawful deduction had not been made. It follows that any unlawful deductions under the Act relate to net payments. In this case, the Court finds that the Complainant suffered no loss of net pay for the months of April, May, or June 2020. Therefore, no unlawful deduction under the Act arose.
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