Complainant

Respondent

Parties

Georgina  Ako

Reign Healthcare Limited

Representatives

Peninsula

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055868-001

28/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055868-002

28/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055868-003

28/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055868-004

28/03/2023

The complainant was employed predominantly as a Social Care Worker from 7th July 2022 to 4th December 2022. For approximately six weeks, from 1st August 2022, the complainant was employed as a Social Care Leader. The complaint relates to terms of employment and deductions to pay.

Contract of Employment

The complainant outlined at the hearing that she had not received a contract of employment and that she was underpaid for the hours worked. She also claimed that she was due expenses for travel and accrued annual leave.

Pay

The complainant stated her pay was reduced by 20% and when she queried this, she received a text message from the respondent which stated that this was due to the Revenue Commissioners and taxation. She submitted staff rosters and timesheets to the WRC in advance and after the hearing which outlined the hours which she had worked over the period of her employment. She also submitted copies of bank statements to show wages paid into her account. In the submission and at the hearing she explained how she calculated the deduction in pay for each pay period by subtracting 20% from each payment to arrive at a total due to her of approximately €13,000.

The complainant explained that she submitted time sheets to payroll on the hours she had worked and that she never received any further contact from payroll. She provided evidence to show that she had sought pay slips so that she could see the hours she was being paid for and that she never received any pay slips.

Further information on rosters, working hours, and accrued annual leave were submitted by the complainant after the hearing.

Travel Expenses Accrued Annual Leave

The complainant outlined that she was required to travel to work locations in Wexford from the end of July 2022 and she was informed by a manager at the beginning of October 2022 that she would be paid travel of €40 along with €30 euro when she was required to travel during her work. She stated that these expenses were not paid.

Accrued Annual Leave

At the hearing, the complainant outlined that she was due payment for accrued annual leave which was due to her when her employment ended on 4th December 2022. As there was a complete deficit of information as to the amount of accrued annual leave, I sought further information from both parties after the hearing. The complainant responded by email that she was due €3,500 based on the number of hours worked.

Preliminary Issue

The respondent representative raised an issue of the payment of wages complaints being outside of the six-month timeframe. It was submitted that the complaint form referred to a delayed payment in July 2022 which was outside of the cognisable period from 29th September 2022 to 28th March 2023.

Pay Deductions

The respondent representative denied that there was any outstanding pay, travel expenses and accrued annual leave payments due to the complainant. He referred to three payslips and money transfers to the complainant’s bank account and that the complaint related to tax issues which are valid statutory deductions.

The respondent’s position on the timesheets is that these were all self-certified by the complainant and have not been signed off by the respondent.

Contract of Employment

The respondent representative conceded on behalf of the respondent that a contract of employment had not issued to the complainant.

CA-00055868-003 & CA-00055868-004- Terms of Employment (Information) Act 1994

The Act provides for the employer to issue to new employee’s certain statements of terms of employment. The respondent conceded at the hearing that a statement of terms of employment nor a 5-day statement of employment terms issued to the complainant as prescribed under the Act.

In accordance with Section 7 of the Act, I declare that the complaint is well founded.

As per Section 7 of the Act, there is provision to pay the employee compensation of such amount as the adjudicator considers just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration.

I consider the breaches of the Act to be serious as the complainant was denied her statutory right to the terms of her employment. The complainant provided evidence of her attempts to obtain her terms of employment and particularly wage slips and the recorded hours she had worked. The lack of an employment contract outlining her terms of employment caused her considerable difficulties over the course of her employment. The complainant was severely disadvantaged in that her terms of employment were never issued to her which caused considerable confusion as to whether she was being paid appropriately.

As this is a serious breach of a statutory provision, I order the employer pay to the employee the equivalent of 4 weeks’ pay which is €2808.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00055868-001 & CA-00055868-002- Payment of Wages Act 1991

20% Reduction in Pay

Other than a text message, there is a distinct lack of documentation available to the complainant to assess whether she has received the correct pay. There is no contract of employment and the complainant stated that she did not receive the three pay slips contained in the employer’s submission covering six weeks of employment. These pay slips do not contain any breakdown of the hours worked and unsocial hour payments. The complainant has provided extensive documentation in the form of work-rosters and timesheets to make the case that she has not received her correct pay. The time sheets reflect a 72-144 hour working week.

The respondent denies that these hours were worked and are records prepared solely by the complainant which have not been signed off on. There was a distinct lack of standard employment records provided by the respondent in their submission and at the hearing.

Despite the conflicting evidence of the hours worked, the original complaint form and calculations presented at the hearing specifically related to a 20% reduction in pay. When this was queried at the time by the complainant, the respondent replied that this was due to the Revenue Commissioners and taxation.

Section 5 (1) of the Act states that an employer should not make a deduction unless it is required or authorised to be made by virtue of any statute. It is common case that the Revenue Commissioners have powers to make deductions from pay as part of the income tax system.

In relation to the alleged 20% reduction as described on the complaint form and at the hearing, the complainant has stated that the respondent informed her by text that this reduction relates to income tax.

I do not have jurisdiction to make a decision in relation to the income tax system as these deductions are valid under the Act.

For the reasons outlined, I find that the complaint on 20% deduction in pay for tax purposes is not well founded.

Travel Expenses

The complainant is seeking payment of expenses from July 2022 for travel to a new work location and journeys undertaken in the course of her work. The complainant gave evidence that an undertaking to pay this travel was given verbally by a manager at the beginning of October 2022.

The respondent representative denies that there are any travel payments due to the complainant.

‘Wages’ are defined under the Act and expenses are not included under section 1 of the Act.

As payment of expenses is not covered under the Act, I find that this complaint is not well founded.

I find that the complaint of payment of travel expenses is not well founded.

Accrued Annual Leave

The complainant contends that when her employment ended, she was due a payment for annual leave of €3,500 based on the number of hours worked. Despite being requested to provide details of the complainant’s annual leave, the respondent did not make a submission on this issue.

Even though the complainant has provided details of the hours worked over the course of her employment, the respondent denies that the hours worked are accurate as they have been prepared solely by the complainant and have not been verified or signed off by the respondent.

As the respondent has not provided any details of annual leave taken by the complainant, it can only be assumed that she had not availed of annual leave over the course of her employment.

I do not accept the complainant’s calculations of a payment due of €3,500 on accrued annual leave. This amount could only be due if the complainant was working over twice the normal weekly hours over the entire duration of her employment. If this was so, the working hours issue would have been the centre of any communications between both parties. Also, the complaint form does not refer to this serious breach of employment law.

In the absence of any official employment records and employment contract, I need to calculate the value of the accrued annual leave as this became lawfully due at the end of the employment. Based on a standard contract of a 39hr week over the course of employment from 7th July 2022 to 4th December 2023, I calculate the value of accrued annual leave as €1208.16.

Although the respondent claims some of the annual leave due may be outside of the cognisable period, Section 23 of the Organisation of Working Time Act 1997 refers to payments for loss of annual leave being due on the cessation of employment. Therefore, as the employment ended on 4th December 2022, this was the date when the payment for accrued annual leave was due and is within the 6-month statutory period.

I find that the complaint of wages due based on accrued annual leave to be well founded and the respondent shall pay the complainant compensation of €1208.16.

CA-00055868-003 & CA-00055868-004- Terms of Employment (Information) Act 1994

I decide that the complaint is well founded. I order the employer pay to the employee the equivalent of 4 weeks’ pay which is €2808.00. This is redress of compensation for a breach of a statutory right and is not remuneration or arrears of remuneration.

CA-00055868-001 & CA-00055868-002- Payment of Wages Act 1991

I find that the complaint on 20% deduction in pay for tax purposes is not well founded.

I find that the complaint of payment of travel expenses is not well founded.

I find that the complaint of wages due based on accrued annual leave to be well founded and the respondent shall pay the complainant compensation of €1208.16.

Terms of Employment, Payment of Wages