Complainant

Respondent

Parties

Mihaela Cristina Branescu

Mervue Laboratories Limited

Representatives

  Self-Represented

David Gaffney -Gaffney 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-00041825-001

06/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041825-002

06/01/2021

The Complainant commenced employment with the Respondent as an Export Compliance/Regulatory Manager from 16 October 2017 to the date of termination of her employment by resignation. Her last day of work was 10 July 2020. The Complainant submits that she was not paid wages which were properly payable and that she was also denied her bonus, which included airline tickets. She claims that such breaches were contrary to the Payment of Wages Act 1991 (the 1991 Act)

The Complainant also submits that she was denied six  days annual leave upon cessation of her employment.

CA-00041825-001 Payment of Wages Complaint:

The Complainant gave evidence under affirmation. The Complainant submits that she was paid for ten days in July 2020 from the first day of the month but that the Respondent had agreed to pay her for thirteen days. She therefore submits that she is owed three days pay. The Complainant relies on an email from Ms Marion Fitzpatrick,  the person responsible for computing pay, which she received on 17 July 2020, which stated:

“re the salary paid yesterday, thus was payment for 3 days in July 1-3rd plus 10 days holidays due to you for 2020.

Holidays are 20 days for a full year, 10 days up to June 30th,

You were paid for a total of 13 days…

The Complainant further submits that she was denied a €2000 summer bonus. She also claims that that the Respondent was in breach of an element of the  bonus scheme, which was exhibited, where she and her family were entitled to return tickets to Bucharest in 2020, which were  to be paid for by the Respondent. She claims that these flights were cancelled, and that the Respondent was reimbursed by the Airline. She is claiming the cost of these flights under the 1991 Act.

CA-00041825- Organisation of Working Time Act 1997 complaint:

The Complainant submits that she was not paid for six days annual leave upon termination of employment. When pressed on this point she accepted that she had no record of how much annual leave she had taken in the previous year nor specifically how many days of statutory entitlement she believed she was due other than she believed she did not get her full entitlement.

CA-00041825-001 Payment of Wages complaint:

The Respondent submits that the Complainant was paid the wages that were properly payable to her under the 1991 Act in that she worked three days from 1 July to 3 July and then was paid 7 days holidays at the Complainant’s request. The Respondent in evidence exhibited an email from the Complainant dated 8 June 2020, which was further to her resignation letter where the Complainant requested that the week from 3 July to 10 July “can be used from my holiday”.

On the issue of bonus,  the Respondent exhibited the bonus agreement with the Complainant where it stated that the bonuses are payable at the sole discretion of the company. This agreement  was signed by the Complainant. Mr Keith Birdthistle, General Manager, gave evidence under affirmation that the bonus was also stopped for the other employees in the Complainant’s section due to the severe impact of the Covid-19 restrictions on the Respondent.

The Respondent stated that return  airline tickets to Bucharest  had been purchased by the company for the Complainant and her family in 2020 but that these had to be cancelled because of the Covid-19 restrictions on international travel. The Respondent submits that the Complainant was not out of pocket because it was the Respondent who was refunded the fare. The Respondent exhibited the agreement on airline fares where it stated that: “This arrangement is strictly subject to review annually and may be withdrawn at any time by the Company with or without notice.”

CA-00041825- Organisation of Working Time Act 1997 complaint:

Ms Marion Fitzpatrick gave evidence on affirmation  that she arranged the wage  payments at the Respondent firm and that her email of 17 July 2020 referring to an entitlement of ten days holidays for the Complainant. According to her calculations the Complainant was entitled to one outstanding days leave calculated at €293.31.

The Respondent did not produce a record of leave taken in 2019 or 2020, nor did it give any indication that such a record existed.

CA-00041825-001 Payment of Wages complaint:

The Complainant submitted that she understood from an email that she was entitled to be paid for 13 days whilst finishing up at her employment but that she was only paid 10 days.

Section 2 of the Payment of Wages Act 1991 (the Act) defines wages as:

“… 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.

Section 5 of the 1991 Act in its relevant part,  states:

(1) 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….

… (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”.

I must firstly determine the wages that were ‘properly payable’ to the Complainant at the relevant time. There was uncontested evidence that the Complainant worked ten days, and at her own request seven of those days were paid leave. The Complainant contends that a subsequent email from the Respondent stated that there was payment for three days, with ten days holidays. Ms. Fitzpatrick, The Respondent’s witness, gave convincing evidence that this was a mistaken calculation for the purposes of the payment due. Such a mistake does not confer a contractual right on the Complainant.  Therefore, I am satisfied that the Complainant received her full wages for the seven days that she worked. I conclude that no complaint can be upheld regarding a right to three extras day pay under the 1991 Act.

The Complainant stated that she was due a €2,000 bonus for 2020. However, I note that the Complainant signed an agreement where it stated that the bonuses are payable at the sole discretion of the company. The question therefore to be determined is whether the discretion was reasonably exercised by the Respondent in 2020 when not paying a bonus. The Respondent’s general manager gave evidence that the Company was seriously challenged by the Covid-19 Pandemic restrictions to the extent that all workers in the section where the Complainant worked were not paid the bonus. I therefore find that the non-payment of the bonus was not contrary to section 5 of the 1991 Act.

I am satisfied that there was a signed agreement, but at the sole discretion of the Respondent, whereby the Respondent agreed to purchase annual return airline tickets to Romania for the Complainant and her family. As it transpired the tickets were purchased by the Respondent but could not be used because of the Covid-a9 restrictions and subsequently refunded to the Respondent. The Complainant was seeking the cash value of the tickets.   The tickets were for non-business travel purposes that cannot be converted into cash, or have any residual right to a cash benefit in lieu for the Complainant but have in themselves a cash value. Therefore, I find that they fall into the category of benefit in-kind which do not fall within the category of wages as defined under section 2 of the 1991 Act.

For the reasons outlined above, I find that the complaint under the 1991 Act was not well founded.

CA-00041825- Organisation of Working Time Act 1997 complaint:

The Complainant submitted that she was not paid for six days annual leave but had no record of the leave which  she had already taken. The Respondent claimed that she was due only one day annual leave. In evidence, the Respondent accepted that it had no record of the leave taken for   presentation at the hearing nor did it give evidence that such a record exists.

Section 25 of the Organisation Act 1997 (the 1997 Act) gives guidance as to the obligation of an employer to keep proper  records under the Act where it states:

(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act [and, where applicable, the Activities of Doctors in Training Regulations] are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

Subsection 4  shifts the evidential burden of proof to the employer in cases where records in the statutory form are not maintained. However, there is an obligation on the Complainant to support a stateable case in the first instance as per the decision of the Labour Court in  Antanas v Nolan Transport DWT 17/2011 (reported at [2012] E.L.R. 311. The Complainant made assertions, without any real evidence, that she was due six days holiday; the Respondent stated that she was due one day only, again  without  evidence. I note that the Respondent had originally stated in  the above associated 1991 Act  complaint that for the purposes for days worked, they miscalculated  ten days annual leave in the final salary calculation instead of seven days. Having heard all the evidence in this case, I am satisfied that the Complainant was denied annual leave days and that it is just and equitable for me to determine that this  compensation can be calculated as the equivalent of three days’ pay  i.e., €880.

CA-00041825-001 Payment of Wages complaint:

For the reasons outlined above, I find that the complaint was not well founded.

CA-00041825- Organisation of Working Time Act 1997 complaint:

I find that the complaint was well founded, and I direct the Respondent to pay the Complainant compensation of  €880.

Payment of Wages Act 1991, Bonus, Benefit-in-Kind, Organisation of Working Time Act 1997, Annual Leave.