PWD236

1.Appeal Of Adjudication Officer Decision No(s)ADJ-00033161 CA-00043905-001

BACKGROUND:

2.The Employer and the Worker both appealed the Adjudication Officer’s Decision to the Labour Court under Section 7(1) of the Payment of Wages Act, 1991 . The appeal was heard by the Labour Court on 6 April 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DETERMINATION:

This is a double appeal against an Adjudication Officer’s Decision ADJ-00033161 given under the Payment of Wages Act 1991(the Act) in a claim by Michael Forde (Complainant) that he suffered an unlawful deduction from his wages when Panscape Partitions Systems Ltd (Respondent) did not pay him the correct amount in respect of his travel time.

The Adjudication Officer found the complaint to be well founded and ordered the Respondent to pay the Complainant compensation of €292.60.

The cognisable period for the purpose of the Act is the 6th November 2020 to the 5^thMay 2021 the date the complaint was lodged with the WRC.

Background

The Complainant worked for the Respondent and was assigned to a site operated by a third party which paid the Respondent for the Complainant’s service. This dispute relates to the Complainant’s entitlement to two hours travel time money per day including days of leave. The Complainant was left short during the cognisable period and claims €292.60.

Summary of Complainant’s submission

Mr O’ Connor on behalf of the complainant submitted that the Complainant commenced employment on the 7^thApril 2000. For several years he had been assigned to a site operated by a third party. Although the Complainant did not receive a contract of employment, he had a contractual entitlement to the payment of two hours travel time money a day totalling 10 hours a week. This payment was recorded on all his payslips. The Respondent unilaterally ceased paying the travel money on the 23^rdApril 2021 stating he could not afford to pay it. This was despite the fact there was no change to the payment he received from the third party for the Complainant’s services. The Respondent then started paying 5 hours a week travel time instead of 10 hours a week. At the time the Complainant lodged his complaint his accrued loss was €292.60.

Mr O’ Connor on behalf of the Complainant submitted that the Court should take into consideration prospective losses. The Court invited Mr O’ Connor to make a further written submission on this point but no such submission was received within the time frame allotted or at all.

Summary of Respondent’s submission

Mr O’ Sullivan on behalf of the Respondent submitted that the Complainant was in receipt of travelling expenses which are not covered by the Act. He submitted there was no contractual entitlement to that payment, and therefore, there was no deduction as required by the Act.

The Respondent stated that it does not accept the Complainant’s submission that the Court has jurisdiction to deal with prospective losses.

In respect of their submission that the two hours travel time payment was in effect a travel expense the Respondent was invited to make a further written submission. The Respondent informed the Court that they would not be making a further submission on the issue.

The applicable law

Section 1 of the Act states:

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:

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6)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”.
  
  

The Respondent accepted that since the Complainant had commenced work for him, he had received an additional payment at his normal hourly rate of 10 hours a week and that this payment was referred to as travel time. He also accepted that this payment was recorded on the Complainant’s payslip as a taxable payment and was not in respect of any expenses incurred by the Complainant. The Court having considered the submissions of the parties finds that the Complainant had a contractual entitlement to two hours of travel money per day and that during the cognisable period there was a short fall in the payment of same to the value of €292.60.

Determination

The Court finds that the travel time payment in this case was a contractual entitlement and not an expense and that the complaint is well founded. The Court determines that the Respondent shall pay to the Complainant compensation of €292.60.

Both appeals fail the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
26 June 2023	Deputy Chairman