ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00053011

Parties:

Complaint:

Date of Adjudication Hearing:  08/10/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act 1991  following the referral of the complaint  to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant seeks Driver subsistence payment.

Summary of Complainant’s Case:

The Complainant was employed as a Driver from 02/08/2022 to 17/05/2024.  His claim is for subsistence which he states was paid to other Drivers in the employment.  He asked the Respondent for payment but was told it does not apply to him.  He contends that he drives all over the county, comes back and has to take lunch in his cab.

Summary of Respondent’s Case:

The Respondent stated that by law the Complainant is not owed any money.  The Respondent is in business 35 years, and has many full time and part time employees.  It is incorrect to say that every other Driver got subsistence.  Subsistence is not applicable to the Complainant.  Revenue documents were supplied to demonstrate the point.

Findings and Conclusions:

The complaint was received on 14/07/2024.

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The cognisable time period therefore for the complaint is from 15/01/2024.

The date to which the alleged contravention of the Act can therefore be no earlier than 15/01/2024.

The definition of Wages in Payment of Wages Act 1991 provides:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

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

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:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

any payment in respect of expenses incurred by the employee in carrying out his employment,

In this instant case, the Complainant seeks payment for subsistence which is expenses incurred in carrying out his employment.  This does not come under the definition of wages.  In any event, this may be a moot point, as it is clear the Complainant did not qualify for the subsistence payments as outlined in the document provided Revenue and Road Hauliers, in which document it is stated:

The subsistence payments cover expenses wholly, exclusively and necessarily incurred in the performance of drivers’ duties. At no stage can they be regarded as an addition or as a substitute for wages.

For the reasons stated, the complaint is not well founded.

Decision:

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

For the reasons stated, I have decided the complaint is not well founded.

Dated:   09/12/2024.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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