PWD2217

FULL RECOMMENDATION

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

PARTIES :

ACCENT SOLUTIONS

- AND -

MR ALAN O'CONNOR
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:

1.Appeal Of Adjudication Officer Decision No. ADJ-00028530 CA-00036644-001

BACKGROUND:

2.This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 25 February 2022 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Mr Alan O’Connor (the Complainant) against a Decision of an Adjudication Officer 9ADJ-00028530 CA-00036644-001) under the Payment of Wages Act 1991 (the 1991 Act), dated 26 July 2021, against his former employer Accent Solutions. It is linked with determinations PWD2218, PWD2219 and TU221.

The Adjudication Officer found that Mr O’Connor’s complaint was not well founded. Mr O’Connor lodged an appeal to the Labour Court on 02 September 2021 and a hearing of the Labour Court was held on 25 February 2022.

In this Determination the parties are referred to as they were at first instance. Hence, Mr Alan O’Connor is referred to as the Complainant and Accent Solutions is referred to as the Respondent.

Background

The Complainant commenced work as a plumber/handyman in October 2006 with Dalkia. In 2009 the facilities management unit of Dalkia transferred to another company Mitie, and in line with the Transfer of Undertakings Regulations, the Complainant’s terms and conditions of employment transferred to Mitie with the sale. In 2015, the Complainants terms and conditions of employment transferred to Aramark, and subsequently to the Respondent in February 2019. His employment was terminated by reason of redundancy on 31 March 2020.

Complainant’s Submission

SIPTU, on behalf of the Complainant, submits that the Respondent is in breach of the Act by not paying the Complainant one month’s back pay (€2677.08) when his employment terminated on 31 March 2020. It contends that his contract specifies that he shall be ‘paid monthly in arrears’and that, as a result, he should have received one month’s pay upon his termination, in line with his original terms and conditions of employment.

The Complainant gave evidence that he commenced employment with Dalkia on 2 October 2006 and received his first payment at the end of the following month on the 25 November 2006. The job was the first role he held where he was paid on a monthly basis. He recalled that he had money set aside to cover the period between when he started work and his first pay day. The Complainant told the Court that he did not have any documentation in the form of payslips or back account statements to support his claim, as he had changed banks and had moved house several times in the intervening period.

Respondent’s case

The respondent refutes that the Complainant is due payment for a back month or that any breach of the Act occurred. It submitted that the practice in the company is to pay salaried employees a month in arrears on the 25^thof each month.

The Respondent told the Court that it contacted the Complainant’s former employers, Mitie and Aramark, to investigate the Complainant’s complaint. Both organisations confirmed that the data transferred to them in relation to the Complainant did not include an entitlement to a month’s back pay. He was entitled to be paid a month in arrears on the 25^thof that particular month. No other employees who had transferred from Dalkia were entitled to be paid a back month.

The Respondent submits that no actual evidence has been provided by the Complainant in the form of payslips or bank statements to support his statement that he is entitled to be paid a back month.

The applicable law

Section 5 (6) of the Payment of Wage 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 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”.

Determination

To ground a claim under the Act of 1991, the wages concerned must be properly payable. The matter for the Court to decide is whether a month’s back pay was properly payable to the Complainant on the termination of his employment in March 2020.

The Complainant’s initial contract of employments in 2006 states as follows:“Your initial rate of pay will be €24,0000 gross per annum subject to statutory and other agreed deductions. You will be paid monthly in arrears. You will be paid by credit transfer and should inform the company of your relevant bank details on commencement”.

The Respondent submits that employees are paid monthly in arrears on the 25^thday of each month, by credit transfer to a bank account. It also submits that this was standard practice that applied in the Complainant’s previous employments, although no direct evidence was submitted to the Court in relation to this matter.

However, it is for the Complainant to make out that the wages payable to him during the period encompassed by the claim are properly payable to him under the Act. In this case, the Complainant presented no documentary evidence in the form of payslips or a bank statement to support his contention that he was not paid a salary in October 2006, and that as a result a month’s pay was withheld to be paid to him on termination of his employment.

On balance and in the absence of any persuasive documents to support his claim, the Court is not satisfied that the wages that the Complainant says were properly payable to him during the cognisable period for the within complaint were not paid. The Court must therefore conclude that the wages paid to him during the cognisable period were the wages properly payable to him for that period.

For the reasons set out above, the Court determines that the within complaint is not well founded.

The Decision of the Adjudication Officer is upheld.

The Court so determines.

NOTE

Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary.