CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision in ADJ-00048764 issued on 11/03/2024 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048764
Parties:
| Complainant | Respondent |
Parties | Yingqi Song | Cohen & Co. Chartered Accountants Limited |
Representatives | Self Represented | Sweeney McGann Solicitors |
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-00059899-002 | 10/11/2023 |
Date of Adjudication Hearing: 31/01/2024
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following 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. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed
Background:
The Complainant alleged initially she had not received her proper net wages due, then advised the Hearing that she had received the amount due but that the Respondent deliberately delayed the payment and penalized the Complainant for involving a Trade Union. |
Summary of Complainant’s Case:
The Complainant was employed from 03rd January 2023 to 03rd July 2023 where she worked as a Trainee Accountant. She was paid €2083.33 (gross) on a monthly basis. During her employment, she did not receive any performance reviews. She performed professionally during the employment. Her training partner signed off her qualification diaries after evaluating her performance. On 03rd July 2023, which was not only the first day after the busy season of their work, but also was the last day of her probation period, the Complainant was brought into a meeting with the HR manager Ms Kay Loughran, and the Head of Audit Grainne Twomey and was summarily dismissed. During the meeting on 3rd July 2023, the head of audit and the HR manager told the Complainant that she was not for their organisation. The Complainant felt it was very unreasonable so she asked them if she could ask her trade union for help.
The Complainant stated initially she did not receive anything and she was entitled to including the following: 1) Outstanding salary for July 1st to July 3rd and the payslip; 2) One month notice pay in lieu (Section 13 Contract of Employment); 3) Unused annual leave pay in lieu (Section 4.1.8 of Employee Handbook); and 5) CA diary review and sign off (Required by Chartered Accountant Ireland).
The Complainant advised the Hearing that the Respondent has paid her outstanding salaries, annual leave and notice pay in lieu.
The Complainant separately alleged all her payments have experienced significant delays, which has caused her a lot of stress. The Complainant advised that after the dismissal meeting, the Complainant contacted the trade union and contacted the Respondent regarding outstanding pay. At first, the company did not make any substantive response regarding the content in her email. Finally, on July 12th, the HR manager sent her a letter saying that the company would pay her salary due, unused annual leave and one month notice pay in lieu and give the Complainant a statement of employment if she returned two key fobs. She complied with this request but still received nothing by the end of July.
The Complainant was paid €657.69 on 10th August 2023, but she was still owed €251.20. Though her salary and annual leave was underpaid and her notice pay in lieu was completely not paid, the Head of International Operation Helen Philpott told the Complainant “I note that the tax credits are no longer with Cohen & Co. so tax was deducted at the emergency rate.” and “This payment completes our statutory obligation in respect of outstanding payments due to you.” On 25th August 2023, the Complainant received the payslip regarding the payment on 10th August 2023, the payslip clearly showed that she was taxed at normal rate rather than emergency rate. Her payroll details on Revenue.ie also showed that no emergency tax was paid to Revenue. She maintained should be paid €908.89 and was still owed €251.20.
A prior WRC Hearing into the matters was held on November 3rd 2023 and the Complainant was paid €1,416.66 on 2nd November 2023, which was the last day before the first WRC Hearing. The Complainant stated the Respondent told her representative (at the time) that it was also taxed at emergency tax, however, it was taxed at normal rate again and the Complainant alleged was still owed €431.52. The Complainant also received the unpaid salary and annual leave of €251.20 on the last day before the WRC Hearing. The payment was transferred from the company’s bank account to her bank account rather than from the Revenue to her bank account. The Complainant was paid the outstanding amount of €431.52 on 27th November just after the Complainant re-submitted the complaint that her former representative withdrew. Again, the payment was transferred from the company’s bank account to her bank account rather than from the Revenue to her bank account. At our second hearing on 31st January, the company admitted that they had never paid any emergency taxes regarding all the payments, and the Revenue’s record was correct. They said that the two underpayments were due to technical issues on operating their payroll system so they could not apply her tax credits, but they thought it was due to emergency taxes. However, as the company is an accountancy firm, it makes no sense that they could have difficulties understanding what an emergency tax is or operating their PAYE systems. In addition, none of their explanations could support that it was reasonable to delay her payments for about four months. She stated her bank details and contact details have never been changed. The Complainant stated she cannot agree that they did all this things because of negligence and contended that the significant delays of the payments of her salaries, annual leave and notice pay in lieu were penalisation. In summary, the Complainant alleged that due to membership of a trade union, all the payments that she was entitled to experienced significant delays. The company has used a series of excuses to put off the payments of her salaries, annual leave and notice pay in lieu. The Respondent told her representative that it was taxed at emergency tax again however, it was taxed at normal rate again. The Complainant was paid the outstanding amount of €431.52 on 27th November, on her Revenue account, but she could clearly see that none of the payments she received from the company were taxed at emergency rate. The last payment was made more than four months after she was dismissed without notice and she alleged the Respondent did not want to pay her on time and It has caused her much stress. |
Summary of Respondent’s Case:
The Respondent believe that they have sufficiently addressed the issues surrounding the decision to terminate the Complainant’s employment, however, they wish to address the following:- The Complainant did receive performance reviews and performance feedback during the course of her probationary period and they submitted a copy of same which are contemporaneous notes following review meetings on 28 th April 2023, 8 th May 2023, 11 th May 2023 and 12th May 2024. It is also the case that there were further informal discussions outside of these review meetings. The Respondent has already set out what occurred at the meeting where the Complainant was advised of the decision to terminate her employment on performance based grounds. Thereafter, there were significant attempts to engage with the Complainants and/or her representatives (x3) over the period of July to early November. It was in fact the Complainants failure and/or refusal to engage that led to any delay. With regard to the complaint that the company has admitted they “never paid any emergency taxes regarding all the payments and that the Revenue’s record was incorrect”. What was explained was that the company deducted tax at an emergency tax rate pending application of tax credits at the point of payroll processing, because ultimately the issue of appropriate deductions is the responsibility of the employer, and once the tax credit issue was resolved, the Respondent was in a position to refund any overpayment of tax. Ms Philpott (Payroll Manager) gave detailed evidence/explanation to the Hearing as to why this was the case. The Respondent stated it is unfortunate that the Complainant does not appear to understand or accept her analysis of the taxation system. With regard to the allegation that the Respondent threatened to withhold her reference, payment in lieu of notice and her accounting qualification diary (CA Diary), this was absolutely denied and simply not correct that this was done on the basis that the Respondent would not engage with the Complainant’s Union representation. There was a short delay in signing off on the Complainant’s CA diary where confirmation had to be sought from the regulatory body (Chartered Accountants Ireland) that there was no issue on signing off same where there had been a termination on performance based grounds. The Respondent had no issue with the Applicant being represented by a Union or any other representative and in fact engaged with all of the Complainants representatives with a view to getting the matter resolved. It is the Respondent’s position that they were more than reasonable in the circumstances and that the Complainant unfortunately through her action or inaction caused a significant amount of the delay which extended over approximately 10 weeks and which could have been resolved much earlier had the Complainant and/or her representatives engaged. The Complainants third representative did engage meaningfully and matters were resolved within 24 hours. |
Findings and Conclusions:
It is important to note that the Complainants Representative, was dismissed by the Complainant just prior to the first Hearing in November into the above (and other complaints). The Representative was not allowed by the Complainant attend the first Hearing by the Complainant, even though they had logged in to attend the Hearing. The dismissed Complainants Representative had advised the WRC that most matters had been settled between him and the Respondent Representatives the day prior to the first Hearing. However, as the Complainant had dismissed her Representative that morning a second Hearing was facilitated to allow the Complainant set out her case into the above complaint. The Complainant advised the Hearing all outstanding payments due under the Payments of Wages Act 1991 had been paid to the Complainant. Therefore the main complaint is resolved. It is not a matter for the Adjudicator to forensically investigate the tax treatment applied by the Respondent (a well established Accountancy Firm) of various payments made to the Complainant but to be satisfied the gross amounts due have been properly paid and any deductions made were not illegal or malicious. With regard to the allegation the Complainant was penalised by the delay in the payment there is no specific provision under the Payments of Wages Act 1991 for an Adjudicator to deal with a claim for alleged penalisation under the Act unless a complaint regarding a deduction is well founded, which in this case it is not as all sums due have been paid at the time of the Hearing and I am satisfied the deductions made were not illegal or malicious. I find it appropriate to note that the Respondent wrote to the Complainants then Solicitor on 19th July 2023 seeking engagement on how they would like to settle the outstanding salary payments to the Complainant but received no reply. The changing of Complainant representation, the dismissal of the Complainants Representative on the day of the first Hearing and primarily the evidence of the Respondent witness regarding the tax treatment of the Complainants outstanding payments, was very credible and offered reasonable rationale and cause for the deductions made and any resultant delay in the Complainant receiving her full net entitlement. |
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.
I find the complaint not well founded. |
Dated: 11th March 2024
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Payment of Wages |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048764
Parties:
| Complainant | Respondent |
Parties | Yingqi Song | Cohen & Co. Chartered Accountants Limited |
Representatives | Self Represented | Sweeney McGann Solicitors |
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-00059899-002 | 10/11/2023 |
Date of Adjudication Hearing: 31/01/2024
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following 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. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed
Background:
The Complainant alleged initially she had not received her proper net wages due, then advised the Hearing that she had received the amount due but that the Respondent deliberately delayed the payment and penalized the Complainant for involving a Trade Union. |
Summary of Complainant’s Case:
The Complainant was employed from 03rd January 2023 to 03rd July 2023 where she worked as a Trainee Accountant. She was paid €2083.33 (gross) on a monthly basis. During her employment, she did not receive any performance reviews. She performed professionally during the employment. Her training partner signed off her qualification diaries after evaluating her performance. On 03rd July 2023, which was not only the first day after the busy season of their work, but also was the last day of her probation period, the Complainant was brought into a meeting with the HR manager Ms Kay Loughran, and the Head of Audit Grainne Twomey and was summarily dismissed. During the meeting on 3rd July 2023, the head of audit and the HR manager told the Complainant that she was not for their organisation. The Complainant felt it was very unreasonable so she asked them if she could ask her trade union for help.
The Complainant stated initially she did not receive anything and she was entitled to including the following: 1) Outstanding salary for July 1st to July 3rd and the payslip; 2) One month notice pay in lieu (Section 13 Contract of Employment); 3) Unused annual leave pay in lieu (Section 4.1.8 of Employee Handbook); and 5) CA diary review and sign off (Required by Chartered Accountant Ireland).
The Complainant advised the Hearing that the Respondent has paid her outstanding salaries, annual leave and notice pay in lieu.
The Complainant separately alleged all her payments have experienced significant delays, which has caused her a lot of stress. The Complainant advised that after the dismissal meeting, the Complainant contacted the trade union and contacted the Respondent regarding outstanding pay. At first, the company did not make any substantive response regarding the content in her email. Finally, on July 12th, the HR manager sent her a letter saying that the company would pay her salary due, unused annual leave and one month notice pay in lieu and give the Complainant a statement of employment if she returned two key fobs. She complied with this request but still received nothing by the end of July.
The Complainant was paid €657.69 on 10th August 2023, but she was still owed €251.20. Though her salary and annual leave was underpaid and her notice pay in lieu was completely not paid, the Head of International Operation Helen Philpott told the Complainant “I note that the tax credits are no longer with Cohen & Co. so tax was deducted at the emergency rate.” and “This payment completes our statutory obligation in respect of outstanding payments due to you.” On 25th August 2023, the Complainant received the payslip regarding the payment on 10th August 2023, the payslip clearly showed that she was taxed at normal rate rather than emergency rate. Her payroll details on Revenue.ie also showed that no emergency tax was paid to Revenue. She maintained should be paid €908.89 and was still owed €251.20.
A prior WRC Hearing into the matters was held on November 3rd 2023 and the Complainant was paid €1,416.66 on 2nd November 2023, which was the last day before the first WRC Hearing. The Complainant stated the Respondent told her representative (at the time) that it was also taxed at emergency tax, however, it was taxed at normal rate again and the Complainant alleged was still owed €431.52. The Complainant also received the unpaid salary and annual leave of €251.20 on the last day before the WRC Hearing. The payment was transferred from the company’s bank account to her bank account rather than from the Revenue to her bank account. The Complainant was paid the outstanding amount of €431.52 on 27th November just after the Complainant re-submitted the complaint that her former representative withdrew. Again, the payment was transferred from the company’s bank account to her bank account rather than from the Revenue to her bank account. At our second hearing on 31st January, the company admitted that they had never paid any emergency taxes regarding all the payments, and the Revenue’s record was correct. They said that the two underpayments were due to technical issues on operating their payroll system so they could not apply her tax credits, but they thought it was due to emergency taxes. However, as the company is an accountancy firm, it makes no sense that they could have difficulties understanding what an emergency tax is or operating their PAYE systems. In addition, none of their explanations could support that it was reasonable to delay her payments for about four months. She stated her bank details and contact details have never been changed. The Complainant stated she cannot agree that they did all this things because of negligence and contended that the significant delays of the payments of her salaries, annual leave and notice pay in lieu were penalisation. In summary, the Complainant alleged that due to membership of a trade union, all the payments that she was entitled to experienced significant delays. The company has used a series of excuses to put off the payments of her salaries, annual leave and notice pay in lieu. The Complainant told her representative that it was taxed at emergency tax again, however, it was taxed at normal rate again. The Complainant was paid the outstanding amount of €431.52 on 27th November, on her Revenue account, but she could clearly see that none of the payments she received from the company were taxed at emergency rate. The last payment was made more than four months after she was dismissed without notice and she alleged the Respondent did not want to pay her on time and It has caused her much stress. |
Summary of Respondent’s Case:
The Respondent believe that they have sufficiently addressed the issues surrounding the decision to terminate the Complainant’s employment, however, they wish to address the following:- The Complainant did receive performance reviews and performance feedback during the course of her probationary period and they submitted a copy of same which are contemporaneous notes following review meetings on 28 th April 2023, 8 th May 2023, 11 th May 2023 and 12th May 2024. It is also the case that there were further informal discussions outside of these review meetings. The Respondent has already set out what occurred at the meeting where the Complainant was advised of the decision to terminate her employment on performance based grounds. Thereafter, there were significant attempts to engage with the Complainants and/or her representatives (x3) over the period of July to early November. It was in fact the Complainants failure and/or refusal to engage that led to any delay. With regard to the complaint that the company has admitted they “never paid any emergency taxes regarding all the payments and that the Revenue’s record was incorrect”. What was explained was that the company deducted tax at an emergency tax rate pending application of tax credits at the point of payroll processing, because ultimately the issue of appropriate deductions is the responsibility of the employer, and once the tax credit issue was resolved, the Respondent was in a position to refund any overpayment of tax. Ms Philpott (Payroll Manager) gave detailed evidence/explanation to the Hearing as to why this was the case. The Respondent stated it is unfortunate that the Complainant does not appear to understand or accept her analysis of the taxation system. With regard to the allegation that the Respondent threatened to withhold her reference, payment in lieu of notice and her accounting qualification diary (CA Diary), this was absolutely denied and simply not correct that this was done on the basis that the Respondent would not engage with the Complainant’s Union representation. There was a short delay in signing off on the Complainant’s CA diary where confirmation had to be sought from the regulatory body (Chartered Accountants Ireland) that there was no issue on signing off same where there had been a termination on performance based grounds. The Respondent had no issue with the Applicant being represented by a Union or any other representative and in fact engaged with all of the Complainants representatives with a view to getting the matter resolved. It is the Respondent’s position that they were more than reasonable in the circumstances and that the Complainant unfortunately through her action or inaction caused a significant amount of the delay which extended over approximately 10 weeks and which could have been resolved much earlier had the Complainant and/or her representatives engaged. The Complainants third representative did engage meaningfully and matters were resolved within 24 hours. |
Findings and Conclusions:
It is important to note that the Complainants Representative, was dismissed by the Complainant just prior to the first Hearing in November into the above (and other complaints). The Representative was not allowed by the Complainant attend the first Hearing by the Complainant, even though they had logged in to attend the Hearing. The dismissed Complainants Representative had advised the WRC that most matters had been settled between him and the Respondent Representatives the day prior to the first Hearing. However, as the Complainant had dismissed her Representative that morning a second Hearing was facilitated to allow the Complainant set out her case into the above complaint. The Complainant advised the Hearing all outstanding payments due under the Payments of Wages Act 1991 had been paid to the Complainant. Therefore the main complaint is resolved. It is not a matter for the Adjudicator to forensically investigate the tax treatment applied by the Respondent (a well established Accountancy Firm) of various payments made to the Complainant but to be satisfied the gross amounts due have been properly paid and any deductions made were not illegal or malicious. With regard to the allegation the Complainant was penalised by the delay in the payment there is no specific provision under the Payments of Wages Act 1991 for an Adjudicator to deal with a claim for alleged penalisation under the Act unless a complaint regarding a deduction is well founded, which in this case it is not as all sums due have been paid at the time of the Hearing and I am satisfied the deductions made were not illegal or malicious. I find it appropriate to note that the Respondent wrote to the Complainants then Solicitor on 19th July 2023 seeking engagement on how they would like to settle the outstanding salary payments to the Complainant but received no reply. The changing of Complainant representation, the dismissal of the Complainants Representative on the day of the first Hearing and primarily the evidence of the Respondent witness regarding the tax treatment of the Complainants outstanding payments, was very credible and offered reasonable rationale and cause for the deductions made and any resultant delay in the Complainant receiving her full net entitlement. |
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.
I find the complaint not well founded. |
Dated: 11/03/2024
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Payment of Wages |