PWD2019

SUBJECT:
1. Appeal Of Adjudication Officer Decision No ADJ-00016120 CA-00020934-001

BACKGROUND:

2. This is an appeal of an Adjudication Officer's Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 13 February 2020. The following is the Court's Determination:

DETERMINATION :

Background to the Appeal

This is an appeal on behalf of Student Housing Operations Limited T/A Aparto ('the Respondent') from a decision of an Adjudication Officer (ADJ-00016120/CA-00020934-001, dated 6 September 2019) under the Payment of Wages Act 1991 ('the Act'). The Notice of Appeal was received on 17 October 2019. The Court heard the appeal in Dublin on 13 February 2020.

Factual Matrix

Ms Denise O'Brien ('the Complainant') was employed by the Respondent as General Manager of its Student Housing facility at Dorset Street, Dublin 7, from 15 November 2017 until 18 July 2018. Her basis salary was €45,000.00 per annum. She was also eligible to participate in the Respondent's discretionary bonus scheme.

Submissions

The claim before the Adjudication Officer under the Act was for an amount totalling €8,048.00. The Adjudication Officer found that the complaint was well-founded in part and awarded the Complainant "a reduced sum of €4,500 gross financial loss together with €1,730.76 compensation for breach of the Act."

It appears that the Complainant has enlarged her claim under the Act on the appeal. In her submission to the Court she claims a total of €16,853.80 under the Act together with interest on that amount and compensation.

The total of €16,853.80 is broken down as follows in the Complainant's submission:

33 days overtime/time-off-in lieu €5,711.54

Salary from date of dismissal to date of conclusion of appeal of dismissal €3,721.15

25 days' holidays accrued on claimed overtime and salary post dismissal at 10 €943.27

11 months' bonus as per contract €4,125.00

11 months' employer pension contribution at 3% €1,237.50

Expenses €1,115.34

The Respondent submits that the Complainant was paid all monies due to her on or shortly after the date her employment was terminated, including payment in full in respect of time-off-in-lieu notified to the Respondent. The Respondent also submits that the Complainant availed herself of 17.5 days' paid annual leave during her eight months' of employment. The Respondent told the Court that the Complainant had failed to follow its procedure in respect of time-in-lieu claims for any overtime worked (other than that to which a payment made to her on 25 July 2018 relates) and had not sought approval from her manager for any time-in-lieu. Finally, the Respondent submits that expenses cannot be claimed under the Act.

Discussion and Decision

The Complainant's complaint at first instance was received by the Workplace Relations Commission on 1 August 2018. The Complainant's employment was terminated on 18 July 2018. The Complainant was paid eight weeks' pay in lieu of contractual notice. It follows, therefore, that the period encompassed by the claim runs from 2 February 2018 to 18 July 18. Only monies properly payable as wages pursuant to the Complainant's contract of employment during that period can be the subject of a complaint under the Act.

Section 1 of the Act defines "wages" for the purpose of the Act as follows:

• "...... 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: Provided however that 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,

    (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

    (iii) any payment referable to the employee's redundancy,

    (iv) any payment to the employee otherwise than in his capacity as an employee,

    (v) any payment in kind or benefit in kind."

33 days overtime/time-off-in lieu: The Complainant did not refute the Respondent's submission that she had been paid in full in respect of all time-off-in lieu which she had claimed using the Respondent's documented procedures. This aspect of the claim, therefore, fails.

Salary from date of dismissal to date of conclusion of appeal of dismissal: The Complainant accepts she was dismissed on 18 July 2018 and paid in lieu of her contractual notice on that date. She exercised her right to appeal the decision to dismiss her. The dismissal was upheld on the appeal. The Court was furnished with a copy of the Complainant's contract of employment and the Respondent's Employee Handbook. There is nothing in either document that displaces the established presumption that an employee's contractual entitlements, including the entitlement to payment, stand extinguished as and from the date that an employee has been dismissed (and paid in lieu of notice, where appropriate). This aspect of the claim, therefore, also fails.

25 days' holidays accrued on claimed overtime/time-in-lieu and salary post dismissal at 10%: There is no basis in law for this aspect of the claim. It also fails.

11 months' bonus as per contract: The Complainant's contract of employment provides that she is "eligible to participate in the bonus scheme". It also provides that "any payment under the scheme is discretionary" and "no bonus is payable if your employment has terminated before the payment date.....". The Complainant was unable to demonstrate to the Court that, notwithstanding the bonus provisions in her written contract of employment, she had a contractual entitlement to a bonus payment. This aspect of the claim accordingly fails.

11 months' employer pension contribution at 3%: The Complainant's contract of employment provides that she was to be paid an annual salary of €45,000.00. The contract is silent in relation to pension arrangements. The Complainant offered no explanation for this aspect of her claim. It fails accordingly.

Expenses: Expenses are expressly excluded from the definition of wages for the purposes of the Act. This aspect of the complaint fails accordingly.

Interest and compensation: The Court does not have jurisdiction under the Act to award either interest or compensation. The Adjudication Officer erred in making an award of compensation under the Act to the Complainant at first instance. This aspect of the claim, therefore, fails.

In summary, the Court finds that all aspects of the Complainant's claims under the Act are not well-founded. The decision of the Adjudication Officer is set aside in its entirety and the Respondent's appeal succeeds.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
RK. ______________________
27 April 2020 Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Richard Kennedy, Court Secretary.