Complainant

Respondent

Parties

Ednaldo  MacHado Dos Santos

BHP Laboratories Ltd

Representatives

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-00062553-001

02/04/2024

The complainant submitted a claim on 2nd of April 2024 in respect of his employment with the respondent which he states commenced on 24th of January 2022 and ended on  23rd of February 2024. 

 The within claim relates to the alleged non-payment of wages for three days in January 2024.    The complainant submits that the amount of the non-payment amounts to €512.00.

The complainant submits that

He did not receive any wages for 2nd, 3rd and 4th of January 2024.

The complainant submits that he did not work on the dates in question but was not notified in advance that there would be no work on those dates, and so had an expectation and entitlement to be paid for those days.

The respondent submits that

The complainant has since been paid the amount being claimed of €512.00

The respondent submits that the reason for the delay in payment was due to the fact that the complainant had submitted incorrect timesheets for January which overstated the hours worked by him

The hours claimed by the complainant on the timesheets are greater than the hours show by the GPS tracker used to monitor time spent travelling to customer sites.

Section 1 of the Payment of Wages Act provides for the following definition of “wages”

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

   (a) 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

   (b) 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.”

Section 5(1) of the Act provides:

“(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 any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by 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.”

Section 5(6) of the Act provides: —

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The respondent at the outset advised the hearing that the sum of €512  which is the subject matter of the within complaint has since been paid to the complainant and that there are no outstanding amounts payable.     The complainant at the hearing acknowledged that the €512 had been paid but stated that he wished to proceed with the complaint, as he wished for the respondent to be penalised for not paying him on time.    The complainant in this regard stated that he was seeking an award of compensation in this regard notwithstanding the fact that €512 had been paid as he stated that it was not paid  until after he had submitted a claim.

The respondent advised the hearing that the reason for the late payment was due to the fact that  the timesheets submitted by the complainant for January were grossly over exaggerated.  The respondent stated that the timesheets submitted by the complainant were compared to the hours , recorded in the GPS tracker and that there was a vast difference in the number of hours being claimed and the number of hours shown on the GPS tracker.  The respondent added that it wasn’t the first time this had happened, and that the complainant had previously submitted timesheets which overstated the number of hours worked by him.

The  Respondent advised the hearing that notwithstanding this fact it had since paid the €512.   As regards the overstatement of the hours worked in January the respondent stated that they communicated with the complainant regarding the inaccuracies and the complainant agreed that the timesheet was not correct and sent a revised timesheet.   The respondent advised the hearing that this timesheet still overstated the number of hours worked but they paid the complainant as per the revised timesheet submitted by him.    The respondent stated that the complainant was not entitled to the €512 but that they paid it as they didn’t want to spend any more time on it.

The complainant at the hearing stated that the hours worked exceeded the hours shown on the GPS tracker as the tracker only records hours spent moving in the van.  The complainant added that he has to perform work outside of those hours such as putting machinery in the van checking the tyre pressure of the van and cleaning around the area,   he stated that the GPS only monitors the hours spent moving in the van.

The respondent acknowledged that there are some additional hours of work outside of those being tracked but stated that even allowing for additional hours the timesheets were still overstated by the complainant.     The respondent acknowledged that there is work to do outside the van which is not recorded by the GPS tracker but stated that in comparison to others performing the same role the excess hours being claimed by the complainant were still overstated.    Timesheets and payslips were submitted in evidence as well as a comparison of hours as per time sheets submitted Vs hours as per GPS tracker data.

The complaint at the hearing stated that he left the respondents employment following issues with payment and he resigned his employment.    Having regard to this statement and for the sake of completeness it should be noted that no evidence was adduced which would support a claim of constructive dismissal.       

The complainant reiterated that although the €512 had been paid he wanted to see the respondent penalised for not paying him on time and he sought compensation in addition to the €512 being claimed in the claim form which he acknowledges has since been paid by the respondent.

Having considered the totality of the evidence adduced I am satisfied that the outstanding amount has been paid.   I note the complaints request for compensation in addition to the amount claimed as unpaid wages however I do not find it appropriate or necessary to award additional compensation having regard to the circumstances of this case.   Accordingly, I declare this claim to be not well founded.

As all outstanding wages have been paid, I declare this claim to be not well founded.