Complainant

Respondent

Parties

Alexandru  Sirbu

Derby Transport Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Seamus Collins BL instructed by Melissa Wynne of Sean Ormonde & Co. Solicitors

 Ian Derby

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-00051667-001

12/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act 1998

CA-00051667-002

12/07/2022

The Complainant’s employment commenced on the 6th July 2020 and ceased on the 15th February 2023. The Complainant submitted his complaint to the WRC on the 12th July 2022. At the hearing on the 9th May 2023 the Complainant withdrew his complaint under the Employment Equality Acts 1998 (as amended).  The Complainant claimed that he earned €17.50 net per hour and that there was an unlawful deduction of his wages when the Respondent moved him from an hourly rate of pay to shift pay without his prior knowledge or consent. The Respondent disputed the complaints and claimed that at all material times the Complainant was paid on the basis of shift pay and that he was paid all wages due and owing to him.

CA-00051667-001

The Complainant initially commenced his employment with Mourne Freight Services Limited on the 6th July 2020. The Complainant’s employment was transferred without his consent to the Respondent with whom he commenced employment on the 8th February 2021. When the Complainant commenced his employment in 2020 with Mourne Freight Services Limited it was agreed between himself and his employer Mr. Ian Derby, the Respondent’s Representative, that he would be paid an hourly rate of pay. The Complainant shook hands with the Respondent’s Representative and the Transport Manager at the Respondent’s Dublin Depot and agreed to same.

The Complainant never signed a contract of employment and was never provided with one. The Respondent initially provided the Complainant with pay slips but subsequently ceased providing same after a short period of employment. When the Complainant requested his pay slips for a personal loan application he was advised by the Respondent’s Representative to contact the Revenue Commissioners. The Complainant was subsequently transferred to the Respondent company without his knowledge or consent in 2021. His role was the same as was the employer. The Complainant’s employment was now simply under a different company name.

Up until June 2022 the Complainant wages were calculated on the basis of an hourly net rate of pay of  €17.50 per hour. In or around the 24th June 2022 the Respondent moved the Complainant from an hourly rate of pay to shift pay without the Complainant’s knowledge or consent. Prior to the 24th June 2022 the equivalent of 8 hours would constitute one shift, 12 hours would constitute 1.5 shifts and 14 hours constitute 1.75 shifts. From the 24th June 2022 the number of actual hours worked by the Complainant was no longer relevant in relation to the pay received by him as anywhere between 8 and 14 hours work only amounted to one shift. As a result the Complainant suffered a financial loss in his wages compared to what he had previously earned on the hourly rate of pay.

The Complainant brought this issue to the attention of the Respondent’s Representative but when he did the Respondent’s Representative repeatedly told the Complainant to “leave the company”.

Under cross-examination the Complainant denied that when he was hired in July 2020 he was informed by the Respondent’s Representative that he would be paid shift pay. He further denied that he was engaged exclusively as a HGV Driver. The Complainant stated that he was not in a similar position to the HGV Drivers who exclusively did deliveries. The Complainant stated that he was employed to carry out various functions which included working in the yard loading and unloading trailers, shunting the trailers, doing deliveries, looking after the pallet trucks, keeping the yard clean and looking after the trailers.

Counsel for the Complainant submitted that there was an unlawful deduction from the Complainant’s wages on the 24th June 2022, the 1st July 2022 and the 8th July 2022 in contravention of section 5 of the Payment of Wages Act 1991. In support of the Complainant’s case Counsel for the Complainant referred to the cases of Histon v. Shannon Foynes Port Co. [2007] 1 I.R. 781, Earagail Eisc Teoranta v. Ann Marie Doherty and Other [2015] 10 ICLMD 33 and Bruce v. Wiggins Teape [1994] IRLR 536.

CA-00051667-002 – this complaint was withdrawn at the hearing on the 9th  May 2023.

CA-00051667-001

The Respondent disputed the Complainant’s claim stating that the Complainant was never paid an hourly rate of pay and that at all material times he was paid on the basis of shift pay.

The Respondent’s Representative stated that the Respondent is a transport and logistics company with two depots, one in Newry and one in Dublin where the Complainant was employed. In light of the nature of its business there were no set hours and the Respondent had never employed a HGV Driver on an hourly contract. The Respondent’s Representative gave evidence that the Complainant was employed as a HGV Driver with the Respondent and not a yard worker as claimed by the Complainant, that he was a shift worker and that his runs varied from day to day and therefore his hours of work varied from day to day. The Respondent’s Representative stated that the Complainant was aware that he was not on an hourly rate of pay as this was explained to him at the interview. The Complainant was initially paid shift pay of €140.00 net per day and this was increased to €150.00 net per day. In addition, the Complainant could be paid overtime of €30, €40 or €50 net per day if, for example, he was required to travel a longer distance or pull additional trailers.

It was submitted on behalf of the Respondent that all wages due and owing to the Complainant were paid to him and that the Respondent was not in breach of the Payment of Wages Act 1991.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

CA-00051667-001

Relevant Law:

Payment of Wages Act 1991

In considering whether the Complainant’s wages were the subject of an unlawful deduction as alleged, it is necessary to examine the relevant provisions of the Payment of Wages Act 1991 as amended (hereinafter referred to as “the 1991 Act”).

Section 1 of the 1991 provides the following definition of wages:

"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:

…

The above definition includes pay. 

Section 5 of the 1991 Act serves to regulate certain deductions made and payments received by employers.

Section 5(1) of the 1991 Act provides as follows:

5(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.

Section 5(6) of the 1991 Act addresses the circumstances in which wages which are properly payable are not paid:

5(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.

The non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer. 

In the case of Marek Balans v. Tesco Ireland Limited [2020] IEHC 55 the High Court made it clear that the WRC, when considering a complaint under the 1991 Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made. If it is established that a deduction within the meaning of the 1991 Act had been made, the WRC would then consider whether that deduction was lawful.

Therefore, the question to be decided is whether the wages claimed by the Complainant were properly payable.

The Complainant submitted his complaints to the WRC on the 12th July 2022 and was seeking loss of earnings for the weeks ending on the 23rd June 2022, 30th June 2022 and the 7th July 2022 on the basis that he was not paid the wages properly payable to him.

The Complainant stated in evidence that he never signed a contract of employment nor was he provided with one and that whilst he was provided with pay slips at the commencement of his employment the Respondent subsequently ceased providing pay slips after a short period of employment. The Complainant stated in evidence that up until June 2022 his hourly net rate of pay was €17.50 and that he was paid for the total hours worked by him. Every Thursday the Complainant submitted his weekly report, which included the hours worked by him, to the Transport Manager and the following day he would receive his wages.

The Complainant gave evidence that on the 24th June 2022 he noticed a significant drop in his wages and that from that date onwards the Respondent moved him from an hourly rate of pay to a shift pay without his knowledge or consent. The Complainant stated in evidence that when he learned of the change in his wages he went to the Transport Manager and asked him why he did not receive his full wages and the Transport Manager advised the Complainant that he needed to raise the issue with the Respondent’s Representative. The Complainant gave evidence that the Respondent’s Representative informed him that from the beginning of his employment he was paid by shift not by the hour which the Complainant disputed. In particular the Complainant denied that he received shift pay of €150.00 per shift. It was the Complainant’s case that from the 24th June 2022 the number of actual hours worked by him were no longer relevant in relation to the pay received by him as anywhere between 8 and 14 hours work only amounted to one shift, i.e. €150.00. As a result the Complainant suffered a loss in his wages compared to what he had previously earned on the hourly rate of pay.

I note however the Respondent’s evidence that during the relevant period the Complainant was paid on the basis of shift pay of €150.00 net per shift plus additional monies for overtime and not on an hourly basis as contended for by the Complainant. The Respondent’s Representative disputed that the Complainant was a yard man and gave evidence that he was employed by the Respondent solely as a HGV Driver. The Respondent’s Representative stated that on the 12th June 2022 the Respondent lost the contract for Dealz as a result of which there were layoffs however the Complainant was kept on. The Complainant was put on to Screwfix contract which was a daily net rate of pay of €150.00 and a minimum net weekly rate of pay  of €750.00 for 5 days with the possibility to earn extra money for additional work or overtime.

The Respondent has provided no working time records or payslips or any other documentation to back up its claim that there was no unlawful deduction of the Complainant’s wages. I can find no evidence of agreement between the parties or any other reason to consider the deductions as lawful.

The Complainant’s oral evidence was corroborated by documentary evidence submitted to the WRC in advance of the hearing. In particular, the Complainant referred to documentation submitted to the WRC evidencing the hours worked by him and the wages paid into his bank account for the relevant period. The Complainant’s wages fluctuated from week to week however from a consideration of the documentation submitted to the WRC I find that on average the wages properly payable to the Complainant were €1,123.00 net per week.

The week ending on the 23rd June 2022 the Complainant was paid €845.00 on the 24th June 2022, the week ending the 30th June 2022 the Complainant was paid €830.00 on the 1st July 2022 and the week ending the 7th July 2022 the Complainant was paid €860.00 on the 8th July 2022.

Taking account of the evidence of the Complainant and the witness on behalf of the Respondent and the oral submissions and documentation presented on behalf of the parties and the legal authorities cited above by the Complainant I find that the reduction in the Complainant’s wages was made unilaterally and the total amount of wages paid to the Complainant was less than was due and owing to him. I find that for the relevant period the total amount unlawfully deducted was the net sum of €834.00.

The Complainant’s written submission dated the 9th May 2023 refer at paragraph 29 to the non-payment of wages for bank holidays worked. This allegation does not appear on the complaint form submitted to the WRC on the 12th July 2022 and was not raised at the first hearing on the 14th February 2023. This complaint was not pursued by the Complainant at the hearing on the 9th May 2023 and therefore I make no findings in respect of the alleged non-payment of wages for bank holidays worked by the Complainant.

CA-00051667-002 - This Complainant was withdrawn at the hearing.

CA-00051667-001

I decided that the complaint is well founded, for the reasons set out above, and I direct the Respondent to pay the net sum of €834.00 for the unlawful deduction of wages properly payable to the Complainant.

CA-00051667-002 - This Complainant was withdrawn at the hearing.