ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00049755

Parties:

	Complainant	Respondent
Parties	Martina McGrenaghan	Ray Carrigy T/A Ray Carrigy Coach Hire

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Self

Complaint(s):

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-00061044-001	12/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00061044-002	12/01/2024

Date of Adjudication Hearing: 11/04/2024

Workplace Relations Commission Adjudication Officer: Janet Hughes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s). The parties provided sworn evidence at the hearing. Following receipt of the complaint on 12 January 2024, the WRC wrote to the Complainant suggesting that the complaint may be outside of the initial period of six months for submitting the complaint. The Respondent did not raise this issue and I see no reasonable basis on which the issue could have been raised by the WRC. The Complainant last worked for the Respondent on 14 July 2023 and the complaint was submitted to the WRC on 12 January 2024. She was never formally dismissed. Her claim is based on payments which accumulated during the period of the employment, mainly towards the end of the relationship and the manner in payment was made i.e. on an set weekly period which meant that an underpayment or overpayment could accumulate over time but in this case, and as is acknowledged by the Respondent, an underpayment accumulated. There is no issue of a failure to meet a time limit or a need to consider reasonable cause for an extension of the initial time limit of six months arising in this case.

Background:

This decision is concerned with two separate complaints. The Complainant was employed by the Respondent as a driver from 9th May 2023 performing various driving duties for which there were differing rates of pay which had been agreed verbally. She gave as her last day of work July 14th, 2023. The complaints relate to a failure to provide a written statement of terms of employment and wages which the complaint calculated were due to her based on the agreed arrangements and also expenses. In her evidence, the Complainant stated that she received average wages of €400 per week-which was sometimes more than her pay due in a week and sometimes less, but the arrangement suited her.

Summary of Complainant’s Case:

Terms of Employment(Information) Act 1994 as amended.

The Complainant gave evidence of reaching a verbal agreement with the Respondent regarding her duties and the various rates of pay before commencing employment. This complaint is that she did not receive any written statement of terms from the Respondent at any stage.

Payment of Wages Act 1991,as amended.

The Complainant submitted her calculation of monies withheld from her on two occasions. The first was contained in the complaint form where the calculation comprised €1240 wages and holiday pay of €151 and € 649.20 in expenses owed to her. A second detailed account submitted for the hearing amounted to €1889.50-a combination of wages and expenses. The Complainant disputed the accounts regarding the accident, the report of the damage and the alleged inconvenience to the customers on the same day. Her issue with the calculation of wages was that more tax should have been deducted from her wages.

Summary of Respondent’s Case:

Terms of Employment(Information) Act 1994 as amended

The Respondent accepted that a statement of terms was not issued to the Complainant. There is a standard contract which is provided to drivers in the employment but was not issued to the Complainant.

Payment of Wages Act 1991,as amended.

The Respondent accepted that there are monies in the order of €1700 not paid to the Complainant. There was an incident with a bus on 14/07/2023. He received reports about the damage done and the attitude of the Complainant about the damage, he also had to pay for a replacement transport. There was a further written complaint about the treatment of the passengers. The Complainant when she raised an issue about her tax situation was reported as making derogatory comments about the accountant. The Respondent decided to have nothing more to do with the Complainant.

Findings and Conclusions:

Terms of Employment(Information)Act 1994 as amended. As the facts are not in dispute, the complaint is well founded. As the Respondent gave evidence of having a standard contract in place, the omission in the case of the Complainant represents neglect of known responsibilities on the part of the Respondent. The maximum compensation of four weeks pay is justified in the circumstances. In calculating the amount of compensation, the average weekly rate of pay of €400 is used.

Payment of Wages Act 1991 as amended.

The decision of the Respondent appears to have been directly related to reports he received regarding damage to a vehicle driven by the Complainant and her attitude in situations as described to him by others. He did not engage in any discussion with the Complainant about any of those concerns. In the absence of any agreement with her or any term in a contract or statement of terms which permitted the withholding of wages to the employee because he was unhappy with her attitude or conduct.

For the information of the Respondent regarding deductions or payment withheld, the following is the relevant extract from the Payment of Wages Act 1991.

PAYMENT OF WAGES ACT 1991

Regulation of certain deductions made and payments received by employers.

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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

As can be readily seen, the Respondent cannot justify his continued withholding the wages he concedes are owed to the Complainant by reference to the terms on the legislation, nor could he at any stage. In the circumstances an amount of €1391 in wages and holiday pay seems appropriate.

The Complainant on the other hand has included an amount of in excess of €600 in expenses she claims are due to her. The legislation under which the complaint is made is concerned with deductions or payments withheld from wages and not expenses or other items of expenditure, even where such payments were made in the course of working for the employer or as an assistance to the employer. The relevant sub section of the Payment of Wages Act is as follows:

…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,…

On the basis of the interpretation of the meaning of wages under the Act, the inclusion of an amount for expenses in the complaint is not well founded. No amount is included in the amount of nett wages in the Decision.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00061044-002 Terms of Employment( Information) Act 1994,as amended. This complaint is well founded. The Respondent is to pay the Complainant €1600 in compensation.

CA-00061044 -01 Payment of Wages Act 1991 as amended. This complaint is well founded in respect of wages unlawfully deducted from the Complainant. The Respondent is to pay the Complainant nett wages of €1391.

Dated: 25th April 2024

Workplace Relations Commission Adjudication Officer: Janet Hughes

Key Words:

Failure to issue a statement of terms.

Wages unlawfully withheld/expenses