Complainant

Respondent

Parties

Caroline  Harney

Athlone Education Support Centre Limited

Representatives

 Self

Barry O Mahony BL instructed by Michael English Solicitor

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-00048354-001

27/01/2022

This complaint related to the payment of the Complainant's wages by the Temporary Wage Subsidy Scheme(TWSS) between 11 May 2020 and 26 August 2020.

The payment by the TWSS resulted in the Complainant having a tax liability to the Revenue Commissioners of €1964.29.

The Complainant resigned her position by letter 22 December 2021.

The Respondent raised a preliminary objection to the hearing proceeding. It submitted that the Complainant's case was outside of the time limits to bring a complaint.

The Complainant case is that she was in the employment of the Respondent for 18 years before her employment ended.

She worked in an accounts role for the Respondent and worked throughout the pandemic including lockdown.

The Complainant explained that the TWSS was implemented for 16 weeks during 2020.  (Weeks 20 -35 inclusive).  The scheme paid her €4,910.72 during this period. 

She submitted that her PAYE and USC taxes were not recorded on her payslip and not returned to Revenue on her behalf.  She explained she was "left short €1,964.29" during this time.  This was the amount she calculated was her shortfall in PAYE and USC.

The Complainant explained that she brought this to the attention of the Board of Management on a number of occasions when she received her payslips. Her complaints were not addressed by the Board of Management.

She further explained how her tax liability to Revenue was partly deducted in 2023 from her husband’s income and was set off against her tax relief claim for medical expenses. She is jointly assessed for tax with her husband.  A further deduction will be made in 2024 to meet her outstanding tax liability.

The Complainant submitted that she felt humiliated and degraded in the way she was treated by the Respondent. She was very disappointed with the entire situation.

She confirmed that she was no longer in employment and she does not have the income to meet the tax liability created by the Respondent.

Preliminary objection

The Respondent objected to the case being heard by me. It submitted that the case was so long out of time, I didn't have the power to investigate the complaint.

The Respondent set out the chronology of events regarding the Complainant's lodgement of her claim with the WRC.

The Complainant lodged her complaint with the WRC initially on 27 January 2022. This complaint form disclosed no complaint.  The Complaint made further submissions to the WRC and ultimately submitted a further complaint dated 25 February 2022 setting out she was due a payment of €1,964.29.

The Respondent submitted that the complaint was absolutely out of time. It submitted that any alleged failure is on the part of the Respondent (which was denied) took place over 12 months prior to the Complainant lodging her complaint and as such were statute barred absolutely.

The Respondent referred to sections 41 (6) and section 41 (8) of the Workplace Relations Act 2015.

Substantive Response

The Director of the Respondent gave evidence. She explained how the TWSS was implemented in the organisation. It was implemented as an emergency measure to keep employees in the workplace.

She explained that the Respondent operated a Sage payroll system. The TWSS scheme was processed through the payroll system.

The Director gave evidence of ongoing communications with staff (including the Complainant) as to the implementation of the TWSS scheme and tax implications. All information received in relation to the TWSS was shared with the Respondent’s staff as it was made known to the Respondent.

I was provided with an email dated 15 May 2022 which was sent to the Complainant. The email set out information regarding "Taxation of the Temporary Wage Subsidy Scheme (TWSS)". The email set out that the subsidy was taxable and tax due for each employee would be calculated at year end.

The Respondents submission was that the Complainant's case was that the Respondent failed to make deductions (paying her tax liability) rather than having made an unlawful deduction.

The Respondent submitted that the Payment of Wages Act 1991 allows employees to bring claims to the WRC where there has been in an alleged deduction from their wages.

It submitted that the Act does not cover alleged breaches of contract or failure to make deductions from an employee's wages and that the Complainant's complaint was misconceived.

It referred to the definition of wages in the 1991 Act and section 5 (1) 4.3 of the 1991 Act.

It submitted that any tax liability incurred by an employee could not be validly considered to be wages as defined by the Act or at all.

It submitted that the tax liability incurred by the Complainant arose from the operation of the TWSS scheme. It submitted that the Complainant was fully aware of and was expressly informed that the operation of the scheme would generate a tax liability.

It submitted that no deduction was made by the Respondent and even if the deduction had been made, it would have been a lawful deduction.

Section 41(5) of the Workplace Relations Act 2015 provides that

(a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

(I) be heard by the adjudication officer, and

(II) present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision in writing.

It is established practice that for an Adjudication Officer to make any determination on any complaint and to comply with the principles of fair procedures, evidence must be heard from the parties wishing to present evidence.  I find that I have jurisdiction to hear evidence in this case and not merely submissions by the Respondent’s representatives. 

Section 41(6) of the Workplace Relations Act 2015 sets out that the complaint should be presented within the period of six months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the Workplace Relations Act 2015 gives WRC adjudication officers a limited power to extend time by no more than a further six months where the failure to present the complaint within the initial six-month period was due to “reasonable cause”. See Cementation Skanska v Carroll DWT 38/2003.

Between January 2022 and February 2022, the Complainant referred a claim to the WRC under the Payment of Wages Act in which she maintained that her employer had “Not paid me or has paid be less than the amount paid to me (Payment of Wages Act 1991)" between 13 May 2020 to 26 August 2020.

As the Complainant has lodged her complaint outside the 6 months and 12 months’ time frame allowed by the Workplace Relations Act to bring a complaint relating to any deduction from wages in May – August 2020, I cannot deal with her complaint as it is statute barred.

This complaint is not well founded.

Temporary Wage Subsidy Scheme, TWSS

Time limits. Section 41(6) and 41 (8) of the Workplace Relations Act 2015.