Complainant

Respondent

Parties

Jelyn  Mitchell

Atalian Servest Ireland Ltd

Representatives

Justin Mitchell

Bernadette Daly CC Solicitors

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-00056811-001

23/05/2023

The complainant is employed as a Cleaning Operative since 2nd July 2018. In July 2022 the complainant became an employee of the respondent by virtue of a TUPE transfer at that time. The complainant’s established rate of pay prior to the transfer was €11.55 per hour. The respondent inadvertently paid the complainant €15 per hour from July 2022 until April 2023. When the error was noticed, the complainant was paid €12 per hour thereafter.

The complainant stated that since her employment transferred to the respondent in July 2022, she was paid €15 per hour. This hourly rate continued for approximately 42 weeks and was reduced to €12 per hour from on or about 27th April 2023. The complainant’s stated that she formed the view her hourly rate of pay was increased to €15 per hour on the basis of her service with the previous employer as well as the additional work she carried out such as her role as a fire warden and first aid responder.

The complainant stated that her employer requested that she sign a new contract giving effect to an hourly rate of pay of €12 but she did not sign that as she did not accept the change to her established rate of pay of €15 per hour.

As the complainant works 20 hours per week, she has quantified the deduction from her salary to be €60 per week which commenced on or about the 27th April 2023.

The respondent contends that the higher rate of pay of €15 per hour was not properly payable to the complainant. The respondent’s position is that the correct hourly rate of pay post transfer was €11.55 per hour. The respondent fully acknowledged its error and confirmed that it did not intend to seek the repayment of the €2,388.00 which the complainant had been overpaid. In relation to the issue of applying the correct hourly rate of pay, the respondent is applying an hourly rate of €12 to the complainant going forward and is seeking that the complainant sign a revised contract to confirm her acceptance of same.

The complainant contends that the respondent made an illegal deduction from her salary by not paying her the appropriate hourly rate of pay with effect from 27th April 2023. The deduction is quantified at €60 per week. (€3 x 20 hours).

The respondent contends that the complainant was inadvertently paid at a higher rate of pay from the time of the TUPE transfer in July 2022 until April 2023 and that the higher rate of pay was not properly payable to her.

The Applicable Law

Section 5(6) of the Payment of Wages Act, 1991 provides as follows:

(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.

Conclusions

In the circumstances of the within complaint, the respondent overpaid the complainant in error but was not seeking any reimbursement. The complainant assumed her pay had been increased at the time of the transfer from €11.55 per hour to €15 per hour for the reasons stated. The complainant did not seek to clarify with the respondent the reasons for the increase from July 2022 and when the respondent became aware of the overpayment, it rectified the situation by applying a new rate of pay of €12 per hour. The respondent then sought to have the complainant sign a new contract giving effect to an hourly rate of pay of €12, which the complainant did not do.

Having considered the matter, I find that the higher rate of pay was not properly payable to the complainant and therefore the deduction of €60 per week was not an illegal deduction within the meaning of the legislation. Accordingly, the complaint fails.

For the reasons stated above, I find that the complaint is not well founded.

Wages properly payable