FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : CLS RECRUITMENT GROUP LIMITED - AND - PATRICK MC LOUGHLIN DIVISION : Chairman: Mr Hayes Employer Member: Ms Connolly Worker Member: Mr Shanahan |
1. Appeal Of Adjudication Officer Decision
BACKGROUND:
2. This is an appeal of Adjudication Officer Decision made pursuant to Section 7(1) of the Payment of Wages Act 1991. The appeal was heard by the Labour Court on the 13 April 2017 in accordance with Section 44 of the Workplace Relations Act 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by CLS Recruitment Group Ltd against Adjudication Officer decision number ADJ00000717 issued under the Payment of Wages Act 1991 on 20 January 2017.
The Complainant made three complaints under the Act.
1. He complained that he had been recruited with effect from 30 July 2015, on a basic rate of €120 per day which was paid to him for a very short period of time after which his pay was unilaterally reduced contrary to the terms of the Act.2. He complained that he had not had the correct rate of pay applied to him in respect of a night shift he worked on 21/22 August 2015
3. He complained that he was not paid for work her performed during a two week period between the 7thand18th December 2015
The Respondent told the Court that it agreed to the rate of €120 per day subject to all tax affairs being in order. It allowed 14 days for the necessary documentation to be submitted. When this did not materialise it took steps to bring the Complainant’s gross pay into line with his tax status. It submits that it acted properly at all times in this regard.
The Respondent acknowledged that that it owed the Complainant for the work he had performed on 21 and 22 August 2015. It undertook to discharge this obligation with immediate effect.
The Respondent submits that the Complainant was advised that his pay was being reduced to €16.00 per hour and that if he did not accept this rate his employment was terminated. The Complainant continued at work on the Client’s site but did not agree to accept the revised pay rate. Accordingly he was taken off the payroll and no longer worked for the Company. It submits that any monies due to the Complainant in respect of that period of work is a matter between the Complainant and the Client.
Findings of the Court
Having considered the documentary and oral evidence before it the Court finds as follows
Claim No 1
The Court finds that the Respondent employed the Complainant on a rate of €120 nett per day. This was contingent on the Complainant being fully tax. A dispute arose out of the Complainant’s status. The Complainant asserted that his tax affairs were in order. When this was disputed he took all reasonable steps to align his tax position with the Respondent’s requirements.
It however it decided to unilaterally reduce the Complainant’s rate of pay from €120 net per day to €16 per hour or 624 gross per week.
The Court finds that it took this decision because the Client was not prepared to pay a rate in excess of €16:00 per hour (i.e. €624 gross) which effectively could never meet the nett €120 per day rate. An email from the Payroll Administrator dated the 14th October neatly summarises the matter. She states
“To have you on a net rate of €120 per day we would have to pay you a gross rate so high that we would be incurring a huge loss on the contract with our client.”
The Respondent and the Complainant exchanged a number of emails regarding the Complainant’s tax affairs during the period of September/October 2015. This was conclusively dealt with by Revenue in very detailed letters exhibited (29th July 2016 and 8th August 2016). It confirmed that the Complainant’s tax affairs were in order.
In light of the evidence before it the Court finds that there was no statutory or contractual basis for the reduction in the pay of the Complainant.
Findings
The Court finds that the Complaint is well founded.
The Court orders the Respondent to pay the Complainant compensation in the sum of €1682.00 net and affirms the decision of the adjudicator accordingly.
Claim No 2
No decision was made by the Adjudication Officer in respect of this complaint and accordingly no appeal lies to this court.
Findings
The Court finds that this matter was addressed between the parties and is no longer before the Court
Complaint No 3
In early December Client became aware that the Complainant had sought the assistance of the WRC to address his wage issue.
The Complainant was highly thought of and well regarded on site. This is evident from emails between the site Foreman and the Respondent. It was apparent that the Client and the Respondent were in the process of ‘sorting things out’ as it were. In the meantime they both allowed the Complainant to continue on site working for the Client while employed by the Respondent.
Unfortunately matters were not ‘sorted out’ and the Complainant was at the loss of his wages for the two weeks from 4th December to 18th December.
The Respondent’s payroll Department contacted the Complainant as normal during this period seeking details of his weekly hours and these were provided as normal (text and email traffic opened to the Court). Naturally this confirmed his belief that he continued to be employed by the Respondent and assigned to the Client’s site.
Findings
The Court finds that the evidence supports the Complainant’s contention that he was employed by the Respondent for the disputed two weeks. Having discharged his contractual obligations he is due to be paid for these weeks by the Respondent. The Court measures his entitlement in the sum of €1200 net.
Determination
The Court determines that the complaints before it are well founded.
Complaint No 1
The Court orders the respondent to pay the Complainant €1682 net in respect of the unauthorised deduction from his pay in the period leading up until 7 December 2015
Complaint No 3
The Court further awards the complainant the sum of €1200 net in respect of the work he performed between 7th December and the 18th December 2015.
Signed on behalf of the Labour Court
Brendan Hayes
JD______________________
2 August 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.