Complainant

Respondent

Parties

Raymond  Murray

Adrian O Brien Tractors

Representatives

Noreen Kelly (Payroll)

Joe Kelly, Accountants

Adrian O’Brien

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-00046461-001

30/09/2021

The claim herein was heard remotely in circumstances where a general restriction, on face-to-face hearings arising out of the Covid pandemic, was in place therefore I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

I also explained the changes arising from the judgment of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021 and the parties agreed to proceed in the knowledge that decisions issuing from the WRC would disclose their identities as the parties would be named.

I gave the parties an opportunity to be heard and to present evidence relevant to the complaint. 

Oral evidence was presented by both the complainant and the respondent and all evidence was given under Oath or Affirmation. The parties were offered the opportunity to cross examine on the evidence submitted also.

The Complainant, Raymond Murray was employed as Administration and Parts Manager with the Respondent, Adrian O’Brien Tractors since 15 July 2019.  His employment ended on 22 September 2021.

The Complainant under sworn oath gave the following evidence and confirmed he started work in July 2019 with agreed salary of €600 gross per week.  No Contract of Employment was given and was advised of this.  He stated he had no problem with this.  Mr Murray confirmed he received a few pay slips in the beginning but none since then unless he requested them from the external accountant. Again, he stated this was not an issue as wages were being paid in.  Following a discussion with his employer, Adrian O’Brien Tractors towards the end of 2019 it was agreed to reduce his salary and day of work.  In January 2020 the Complainant confirmed he had a discussion with the Respondent about his pay and it was agreed that his salary would be €550 gross per week plus €50 lunch allowance per week.  Throughout 2020 he confirmed this was paid as agreed. 

The Complainant stated in 2021 his take home pay was the same as in 2020 and therefore he had no reason to think that anything had changed regarding his salary as the Respondent did not discuss any changes with him.  Mr Murray stated he was still not getting any payslips at the time.

The Complainant stated at the beginning of September when he went to do his tax return, he noticed, through the Revenue website, that his salary had been reduced to €458.04 gross plus €50 lunch allowance per week.  He contacted the accountant who informed him that the Respondent had instructed them to keep his net pay the same and that was why his gross figure was different.  The Complainant stated when he asked Adrian O’Brien, he denied this.

The Complainant confirmed he quit his job because of this matter.  He requested that all outstanding payment was made for the money which was unlawfully deducted from his agreed gross salary throughout 2021.

The Complainant is seeking payment of this money which he believes he is entitled to and hence the reason for his complaint.

The Respondent’s Accountant representative, who gave sworn oral evidence under oath was Noreen Kenny who worked in Payroll she stated that the Complainant’s salary and days of work were reduced towards the end of 2019.  They confirmed she understood that a weekly take home pay of €454 was agreed with the Complainant in January 2020 with Adrian O’Brien Tractors.  This included the €50 lunch expense.  She stated this had been the Complainant’s net pay for well over a year and a half with no issue.

The Respondent’s Accountant representative stated that if the Complainant had no reason to check the figures as he had no reason anything had change and that he believed he was on a gross basis rather than an agreed net figure, then why did he query his unchanged net pay when Revenue issued him a tax credit certificate each year showing the changes to his tax credits?

The Respondent’s Accountant representative stated that Mr Murray had stated in his letter he had recently checked his revenue account and noticed he was not on the gross pay he expected to be on and if he had concerns about his pay why did he not check this all year. The accountant representative stated that this can be accessed anytime and his pay details for every week are there since the payroll went live in 2019.  The accountant representative stated they also obliged the Complainant anytime he personally asked for a copy of his payslips in bulk and that they also advised him that all payslips are emailed weekly to the business every Friday to save such requests from them. The accountant representative stated Mr Murray never had an issue with this.

The Respondent’s Accountant representative stated that the Complainant first emailed them about this on the 6 September and they reminded him that this was the agreed net pay figure since January 2020.  The accountant representative stated that it did not make sense to them that he waited until the 22 September to offer his termination letter while accepting two more weeks of that net pay figure if he didn’t agree with it.

The Respondent’s Accountant representative stated that Adrian O’Brien Tractors always paid the Complainant the agreed figures on time every week.  He stated that neither he or Mr Adrian O’Brien understood why Mr Murray is deviating from the agreed figures 21 months later.

The Respondent’s Accountant representative stated when the Complainant suddenly terminated his employment midweek, Mr Adrian O’Brien paid him to that date and included the holiday pay due on his final payslip.

The Respondent’s Accountant representative stated that as far as they were concerned, the Complainant is not due any further payments.

In considering my findings and conclusions I have considered the definition of Wages in Payment of Wages Act 1991

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

 (a)    any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b)    any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i)     any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii)     any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii)     any payment referable to the employee's redundancy,

(iv)      any payment to the employee otherwise than in his capacity as an employee,

(v)      any payment in kind or benefit in kind.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which if there is a deficiency in respect of those such payments”.

The Complainant Mr Murray was to be given gross of €110 per day for 2 days when on reduced hours.  He got alternative part time employment as a result of the reduced hours. The Respondent confirmed he would take him back full time and from 19 January 2020 the Complainant understood he was on €550 gross plus €50 lunch allowance. 

The Complainant was working other jobs so his tax needed to be calculated.  He then only found out he was on wage subsidy scheme and he thought his gross wages was correct until he did his tax return.  The Complainant only then found out his pay was being calculated to be a set net amount without his agreement.   The Complainant did not receive payslips from 2020; if he had he would have known of the issue and raised them sooner.

On 8 January 2021 the Respondent changed his net versus gross pay and Mr Murray left on 22 September 2021.

The Respondent, Mr O’Brien stated that the Complainant was carrying out office work and he had access to emails to get payslips.

The accounts representative who was the payroll person calculated the payroll for the company. Ms Kenny confirmed that the Complainant started on €600 gross and would contact her constantly to check what his net pay would be in any given week each Friday when she did payroll.

The Complainants salary then went to €550 gross.  Ms Kenny stated she understood a conversation occurred between the Respondent and Complainant and they agreed a min net pay of €454.00.  Mr Adrian O’Brien the Respondent confirmed this to Ms Kenny on the phone from 17 January 2021, then she did the payroll to this amount and net calculation.

Ms Kenny stated that the Complainant contacted the Respondent reference the wage subsidy scheme and this was resolved via the revenue side.

Ms Kenny confirmed she emailed the payslips to the company and understood the Complainant was getting them.  She also spoke to the Complainant frequently.

Ms Kenny stated there was no contract of employment in place for the Complainant.  She stated that if he believed his gross pay was determinant, he should have seen this in his tax credits.

The Complainant stated the payslips from January 2021 show the gross pay varied and this wasn’t the case before that.

The Complainant stated he didn’t agree to any net payment, he agreed to gross wage of €550 plus €50 lunch allowance.

I find the Complainant’s claim succeeds based on the evidence presented.   The claim is well founded based on the evidence provided.  The Accountants Representative who did the payroll carried out the instructions given to her by the employer however, there was no contract in place to ensure clarity of gross pay.  Nor is there any proof that Mr Murray got payslips and his claim resulted in being aware of the nett arrangement.  Therefore, I find this claim succeeds and accordingly I award compensation of €1,500 for breach of the legislation.