ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046649

Parties:

	Complainant	Respondent
Parties	Denis Korovin	Precision Parts & Products Ltd

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Peninsula Business Services Ireland

Complaints:

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-00057461-001	03/07/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00057461-002	03/07/2023

Date of Adjudication Hearing: 20/11/2023 & 05/04/2024

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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.

Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. Where submissions were received, they were exchanged. The complainant gave evidence under affirmation and the respondent’s witnesses Mr Gerry O’Sullivan accountant and Mr David Kearns Managing Director gave evidence under affirmation.

Background:

The complainant submits that the respondent made unlawful deduction from his wages and that the respondent has paid him less than the amount due.

Summary of Complainant’s Case: CA-00057461-001

Preliminary Issue 1:

There was no objection to amending the name of the respondent’s name.

Preliminary 2:

The complainant gave evidence that he commenced employment on 31/05/2021 and his employment ended on 23/09/2023 and his complaint was received by the WRC on 03/07/2023. This instant complaint is that there was a deduction for Benefit in Kind (BIK) on 23/12/2022. The complainant said that he emailed the respondent on a few occasions after Christmas 2022 and he raised a grievance on approx. 17/02/2023 and had his first grievance meeting on 16/03/2023 and received the decision of the grievance on 05/04/2023 which was not upheld and he appealed that with the meeting held on 24/04/2023 and was advised on 02/05/2023 that the appeal was not upheld. His evidence was that he thought he had to raise grievances before submitting his complaint to the WRC and that this explained the reason.

Substantive Issue:

The details of this specific complaint was that the respondent made unlawful deductions without his permission and without appropriate notice for alleged BIK that it was alleged he owed revenue.

The complainant gave evidence that that he commenced employment on 31/05/2021 as a Graduate Engineer and took a significant pay cut from his previous employment. It was his understanding that the salary would be reviewed every three months. The complainant submitted that he took on many new tasks that were not outlined as his responsibilities initially. In January 2022, he requested Mr. Kearns to discuss and review his salary and it was agreed the salary would be increased from €36,500 to €40,000. The complainant submitted his car broke down and there was a company pool car that was used for 'off-site' jobs and for company deliveries and he asked to borrow this car until he could sort out his own. It was not financially viable to fix his own car and it was agreed that the salary would stay at €36,500 (rather than increasing to €40,000) and the complainant would have the use of the car along with a fuel card. This was agreed verbally, and the complainant continued to use the car while forfeiting the increase of €3,500.

The complainant received a fuel card from Mr. Kearns, and it was also agreed that the car would only be used for commuting to work and any work-related trips. It was also agreed that others could use the car for required deliveries. The complainant submitted he was never advised of any additional charges for the use of this car. The car was returned for a period of time when the complainant was out sick leave and the car was returned to him when he returned to work in April 2022. The complainant submitted he was promoted in June 2022, to Production Manager and was awarded a pay increase to €40,000 and was informed there would be a review of performance in 3 months' time with a view for a potential further pay increase to €45,000 subject to performance. No amendment was made to the contract of employment following this promotion.

In October 2022, after continuous discussions and negotiations, the complainant said he was refused a pay rise and was offered the option to return the car in exchange for a €2,000 increase in salary, which he declined as he found it to be unfair and unjust and contravened the earlier discussions. He said that Mr. Kearns mentioned that continued use of the company’s vehicle would require BIK and this was never charged at the time and the complainant did not expect that this would be a large amount of money. In December 2022, the complainant requested that accumulated overtime be paid and after he submitted the details he was advised that he owed BIK payment and was offered €738 for all the overtime and BIK was calculated at 6%. The complainant disputed the amount of monies proposed for BIK and there was further discussions and eventually the BIK was calculated at €7,192.80 and the complainant advised that it would be taken out of the complainant’s wages with no explanation for why there had been so many calculations. The first calculation had been €1,626.90 and €6,743.25.

The complainant said this caused a lot of undue stress and anxiety and due to this large financial impact, he expected a reasonable repayment plan but this did not happen and the complainant felt the calculations were used by the company as retaliation against for requesting the additional hours that had been owed for overtime. The complainant submitted that his earnings were severely impacted at the most expensive time of the year and had to seek a loan to be able to sustain his family. In June 2023 the complainant was placed on a temporary layoff from the organisation which he believed was as a consequence of raising a formal grievance against the company in relation to how he was treated and in September 2023 he was made redundant.

Under cross examination the complainant said he did not get paid the pay increase and the money was rearranged so that he would get a car instead of payment. He was trying in January 2022 to negotiate this and get official agreement regarding the payment and he raised the grievance in 2023. He said that he was supposed to have his pay reviewed and a potential for a pay increase and that he never got an updated contract. His understanding was that he had to raise a grievance first with the respondent before taking a complaint to the WRC and he said he had the benefit of legal advice in 2023. He denied he had requested the overtime to be banked and denied he was asked to return the car. He said the BIK was a big financial hit that he did not expect and he did not know about the term BIK.

Summary of Respondent’s Case: CA-00057461-001

Preliminary Issue #1:

The respondent submitted that the correct name of the respondent is Precision Parts & Products Ltd.

Preliminary Issue #2:

It was submitted that the complaint is out of time as the complaint was received on 03/07/2023 and that the claim is with regard to a deduction on 23/12/2022.

Case law cited included HSE -VMc Dermott [2014] IEHC 331, Cementation Skanska v Carroll, DWT0338 Pat the Baker-v- Conor Brennan TU/17/24Irish Rail -v Stephen Lynch UD/18/22County Louth VEG -v- Equality Tribunal [2016) IESC 40Able Security Ltd v Hardjis Langsteins DWT1319Guerin v SR Technics Ireland Limited UD969/2009, Bus Eireann v SIPTU PTD8/2004, Donal Gillespie and Donegal Meat Processors UD/20/135

Substantive Issue:

It was submitted that the Complainant started on the 30/05/2021 on a salary of €30,014.40 and the salary of the complainant was increased to €36,500 in September 2021 and the complainant’s pay was increased to €41,600 in June 2022 when he took on the role of Acting Production Manager. It was submitted that it was not correct that in January 2022 the complainant negotiated a pay rise from €36,500 to €40,000 as the complainant could not have expected another pay rise. It was denied that the complainant was due a pay rise to €45,000 in September 2022. In October 2022 the complainant asked David Kearns for a pay rise and it was refused. The complainant was told his performance would be reviewed, based on his performance, but an amount was not mentioned. It was submitted that a loan of the car was given to the complainant until his own car was fixed. It became increasingly difficult to get the car back, however, and the complainant refused to hand back the car as he continuously stated he did not have another car to travel to work. He then crashed the car. The provision of a car was to help out the Complainant and was not a salary increase.

It was denied that the deduction was made unlawfully and the respondent said they were obliged to make a deduction from the complainant owing to statutory BIK that was owed. The respondent submitted that the car was provided as the complainant’s car broke down and he received a fuel card and the complainant crashed the car on the 09/03/2023 and the Respondent refused to provide a replacement car and therefore this claim is also out of time as any claim should have been taken within six months of “January 2022”.

In June 2022 the complainant was given the role of Production Manager and the Respondent had to employ a dedicated quality manager plus a design manager to cover the role, as well as a General Labourer. Therefore, 3 people were working the roles that were previously done by 2 people, and this at a time when the workload was reduced from the previous year.

When the complainant was advised of the BIK, he requested that calculations be sent to him so that he could get external advice. The complainant’s partner had previously been the financial controller and the complainant made no request for an advance on pay due to financial hardship. It is reasonable to assume that the Complainant would be fully aware of this, due to his partner’s knowledge of the company. The respondent had no alternative but to proceed with the deduction as it would have been fraud not to charge BIK. As BIK is a statutory requirement there was no requirement to get signed permission from the complainant for the deduction. The complainant received the loan of a car because his own car was undergoing repairs but it became more difficult to get the car back and then the complainant crashed the car in March 2023.

It was submitted that the complainant was always told he would have to pay BIK and it is a well known charge by revenue, legally enforceable. The complainant’s request was that overtime hours and BIK be banked and the complainant had his own personal reasons for this and he did not want it paid in the normal way that employees have this paid. The respondent submitted that the complainant was fully aware of the position regarding BIK following numerous conversations with the MD Mr Kearns. The complainant was advised of the calculations and how it would impact him and advised that he wanted it to be processed in 2022.

The evidence of Mr David Kearns was that scenarios were put to the complainant, and in June 2022 the complainant got a pay increase. He denied that the complainant got a pay rise in June 2022 as Acting production manager. He said that the complainant said his car was under repair and he did not return the car. BIK was mentioned and that BIK would accrue on the car and it was never given in lieu of salary and it does not make sense to give him a car as a salary increase and the complainant said he could not repair it. He denied that the complainant carried out the role of the previous production manager and said that there were three other people employed to assist the complainant.

Under cross Examination Mr Kearns said that that the complainant was considered to be acting up as he did not have all the skills and did not have all the experience. He said it was never mentioned that the complainant was acting up and that the complainant was given the loan of a car with a fuel card.

The evidence of Mr O’Sullivan was that he had informal conversations with the complainant regarding BIK in December and also the overtime and that he documented the overtime and gave the full calculations of BIK. He said that normal overtime is paid within a month or up to three months at most but the complainant did not want his overtime to be paid immediately for personal reasons and wanted it to be accrued. It had been agreed that overtime accrued would offset the BIK that was owed. Under cross examination Mr O’Sullivan said that BIK was calculated on the value of the vehicle and the business kilometres and it was done according to revenue guidelines. He denied that BIK had to be paid weekly and said that the onus is on the employee to keep a record of mileage and said that it was two different calculations and he then confirmed that there were three calculations and it was very confusing and that the complainant had not reached the threshold from the records that they had. He could not recall if it was discussed with the CFO and could not recall if it had been discussed with the complainant in April and said that no payment option had been discussed.

Findings and Conclusions: CA-00057461-001

Preliminary Issue #1:

It was submitted that the correct name of the respondent was Precision Parts & Products Ltd and with no objection to amending the respondent’s name and parties not prejudiced by the change in name, I accordingly amend the name of the respondent.

Preliminary Issue #2:

The respondent submits that the complainant is out of time with regards to his complaint. The complainant submits that he believed he had to raise a grievance before he could proceed with submitting his complaint to the WRC and submits this explains the delay in submitting his complaint.

I note that it was not in dispute that the complaint was received by the WRC on 03/07/2023 and the claim is for an alleged deduction that occurred on 23/12/2022. It is also noted that a grievance was raised on 17/02/2023 and that there was an appeal of the grievance and a final decision on the appeal of his grievance on 02/05/2023.

Section 41(6) sets out:

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.

Section 41(8) outlines

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The complainant did not have to await the conclusion of his grievance to submit a complaint to the WRC and I also note that even after the grievance concluded the complainant delayed further in submitting his complaint. I find that the cognisable period for the complaint is 04/01/2023 to 03/07/2023 and no reasonable cause was presented by the complainant to extend the six month period. I find that the complaint was presented outside of the statutory time limits and I find therefore, the complaint is unfounded and I dismiss the complaint.

Summary of Complainant’s Case: CA-00057461-002

Preliminary Issue # 1:

There was no objection to amending the name of the respondent’s name.

Preliminaryx# 2:

The complainant submitted that he commenced employment on 31/05/2021 and his employment ended on 23/09/2023 and his complaint was received by the WRC on 03/07/2023. This instant complaint is that there was a deduction for Benefit in Kind (BIK) on 23/12/2022. The complainant said that he emailed the respondent on a few occasions after Christmas 2022 and he raised a grievance on approx. 17/02/2023 and had his first grievance meeting on 16/03/2023 and received the decision of the grievance on 05/04/2023 which was not upheld and he appealed that with the meeting held on 24/04/2023 and was advised on 02/05/2023 that the appeal was not upheld. His evidence was that he thought he had to raise grievances before submitting his complaint to the WRC and that this explained the reason .

Substantive Issue:

The details of this specific complaint was that the respondent owed him monies in lieu of a pay increase as they had allowed him to use a vehicle from the company but did not replace this car when the car was crashed and not replaced by the respondent.

In October 2022, after continuous discussions and negotiations, the complainant said he was refused a pay rise and was offered the option to return the car in exchange for a €2,000 increase in salary, which he declined as he found it to be unfair and unjust and contravened the earlier discussions. He said that Mr. Kearns mentioned that continued use of the vehicle from the company would require BIK and this was never charged at the time and the complainant did not expect that this would be a large amount of money. In December 2022, the complainant requested that accumulated overtime be paid and after he submitted the details he was advised that he owed BIK payment and was offered €738 for all the overtime and BIK was calculated at 6%. The complainant disputed the amount of monies proposed for BIK and there was further discussions and eventually the BIK was calculated at €7,192.80 and the complainant advised that it would be taken out of the complainant’s wages with no explanation for why there had been so many calculations. The first calculation had been €1,626.90 and €6,743.25.

Summary of Respondent’s Case: CA-00057461-002

Preliminary Issue #1

The respondent submitted that the correct name of the respondent is Precision Parts & Products Ltd.

Preliminary Issue #2

It was submitted that the complaint is out of time as the complaint was received on 03/07/2023 and that the claim is with regard to a deduction on 23/12/2022.

Substantive Issue:

It was submitted that the complainant was always told he would have to pay BIK and it is a well-known charge by revenue, legally enforceable. The complainant’s request was that overtime hours and BIK be banked and the complainant had his own personal reasons for this and he did not want it paid in the normal way that employees have this paid. The respondent submitted that the complainant was fully aware of the position regarding BIK following numerous conversations with the MD Mr Kearns. The complainant was advised of the calculations and how it would impact him and advised that he wanted it to be processed in 2022.

Findings and Conclusions: CA-00057461-002

Preliminary Issue #1:

Preliminary Issue #2:

The respondent submits that the complaint is out of time as the complaint was received on 03/07/2023 and that the claim was with regard to an alleged increase due from January 2022 or October 2022. I note that the complainant received the use of a car around January 2022 and that the car was in a crash on 09/03/2023 and it was from that time that the complainant was without the car albeit date outlined on the complaint form appears to be the date of raising the grievance on 17/04/2023. I find therefore, that 09/03/2023 is the date of the alleged contravention and that the complaint is therefore within time.

Substantive Issue:

The cognisable period for the complaint is 04/01/2023 till 03/07/2023.

The Act at Section 5 prohibits an employer from making a deduction from the wages that are properly payable to an employee unless the deduction (a) is required or authorised to be made by virtue of any statute, (b) is required or authorised to be made by virtue of a term of the employee's contract of employment or (c) the employee has given his prior consent in writing to it.

Subsection (6)(a) of section 5 of the Act provides that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction. The complainant submits that he was given the benefit of a vehicle from the company from 2022 and that the car was crashed 09/03/2023 and not replaced and as he accepted this car in lieu of a pay increase he should receive the equivalent of the benefit of the car when the respondent decided in March 2023 not to replace the car. The respondent while submitting that the complaint is out of time, submits that the complainant was never advised that the car was in lieu of a pay increase and that instead the car was given to assist the complainant and the complainant was not entitled to any such car.

In DWT1319 Able Security Ltd v Mr Hardijs Langsteins it was found that

“(t)he Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent know what it is they are being accused of. If the Respondent is unable to produce records in the prescribed form then the onus of proving compliance with the Act would rest on the Respondent in accordance with Section 25(4) of the Act.

I find the evidence of the witnesses for the respondent Mr O’Sullivan and Mr Kearns, credible that it was never a suggestion that the car was in lieu of a pay increase in January 2022 taking into consideration pay increases given to the complainant. However, I find the complainant’s evidence more credible that he was offered €2,000 in lieu of the return of the car in October 2022. I come to this conclusion as there were discussions then about BIK, its impact on the parties and that the respondent wished the car to be returned but did not appear to formally request the return of the car.

It follows, therefore, that when the respondent decided not to replace a car which had been considered a benefit to the value of €2,000, the complainant was at the loss of the vehicle. I find, therefore, that €2,000 pro-rated from when the complainant was without the benefit of the car on 09/03/2023 until lay-off from 02/06/2023, a total of 12 weeks, as monies properly payable. I find, therefore, that the respondent should pay €462.00 gross to the complainant as monies properly payable during the cognisable period.

Decision:

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

CA-00057461-001

I find that the complaint was presented outside of the statutory time limits and I find therefore, the complaint is unfounded and I dismiss the complaint.

CA-00057461-002

I find that the respondent should pay €462.00 gross to the complainant as monies properly payable during the cognisable period.

Dated: 28-11-24

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Pay increase, BIK, monies properly payable