ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000717
Complaint(s)/Dispute(s) for Resolution:
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
Date of Adjudication Hearing: 07/03/2016 & 21/11/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or section 6 of the Payment of Wages Act, 1991 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The initial hearing on the 7th March 2016 was adjourned to allow the Complainant secure evidence from the Revenue Commissioners that appeared to be central to his case.
Adjudicator’s Summary Complainant’s Submission and Presentation:
The Complainant had three main points – Firstly an issue with his basic rate of pay and how his tax /PAYE affairs were being handled by his employer – the Respondent X Recruitment from 30/07 2015 until the end of his contract (at a disputed date) in December 2015. The Complainant maintained that he had been recruited on the clear understanding that the rate of pay was “€ 120 per day after Tax with full tax credits”. The Respondent had never paid this and it was alleged had sought to hide and confuse the Complainant using the income tax codes as a cover. Secondly a complaint regarding the correct rate of a pay applied for a Night Duty shift on the 21st /22nd of August 2015. Thirdly an issue regarding the non payment of wages for a two week period in December 2015 –from the 7th December until the 18th of December 2015 . The Respondent had insisted that the Complainant agree to a rate of € 16:00 per hour from the 4 December 2015. This had not been agreed and the Respondent took the Complainant off payroll. The End Contractor DX had continued to engage the Complainant until the 18th December 2015. Evidence was cited (e mails) from the End Contractor that they were aware of the Complainant being on site at their request. The Respondent payroll Department had requested hours from the Complaint for the two weeks up to the 18th December 2015 as was the normal practice. The notice given to the Complainant had been completely inadequate (Friday evening) of the need to agree to a change in rates for the following Monday.
Respondent’s Submission and Presentation:
In relation to the first part of the complaint the Respondent maintained that they had at all times operated within the strict guidelines regarding PAYE etc. from the Revenue and were at all times completely willing to engage with the Revenue in regard to any clarifications /queries regarding the Complainant’s case. The Tax position of the Complainant was complicated by the fact of confusion over how much tax /tax credits he carried into Respondent X from his previous employer. The Respondent pointed to the fact that the Job Advert had stated € 120 per day with full tax credits – the Complainant had a complicated tax positon (not largely of his making) on entry to their employment and they could only follow this in regard to his rates of pay.
In relation to the disputed weekend they would sort this out when details were made available to them from the Complainant. Correspondence post the hearing (6th December2016) refers to this and payment was promised as part of any resolution of the overall claim.
In relation to the period 4th December to the 18th December 2015 the Complainant could have been in no doubt as to the situation that applied – he was requested to agree to €16:00 per hour and as he had not, he was taken off the payroll.
Section 41(4) of the Workplace Relations Act 2015 and or Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under the cited Acts.
Issues for Decision:
1: Was the Complainant on the correct –agreed rate of pay for the period 30/07 to 4/12/2015?
2: Is the Complainant due pay and holidays for the period 4/12/2015 to 18/12/2015
Legislation involved and requirements of legislation:
Payment of Wages Act 1991
The Facts as discerned by the Adjudicator from the evidence.
Rate of Pay:
I am happy that the Complaint was recruited on a nett daily rate of €120 – job adverts and extensive e mail traffic (all presented in evidence) between the parties refers (in particular 14th /18th October exchanges refer)
The Complainant was an excellent worker and the end Contractor was very happy with his work and the fact that he was suitable for Fire Safety construction work on the major City Centre apartment site job. However, the end Contractor 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.
The nub of the issue is contained in a sentence from the Payroll Administrator dated the 14th October (e mail in evidence)
“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 engaged in a complicated exchange of e mails regarding the Complainant’s tax affairs during the period of September/October 2015. This was finally clarified by the Revenue in very detailed letters exhibited (29th July 2016 and 8th August 2016)
I noted the Revenue comment in their letter of the 29th July 2016
“Revenue issues Tax Credit Certificates to employers on behalf of employees, however the matter of rates of pay etc. is between the individual and their employer and the Revenue cannot comment on same.”
I am satisfied on the evidence present both verbally and orally that the correct contracted rate of pay was €120 per day nett or €600 per week nett. This was the rate pay in the initial days of the Complainant’s employment. (Pay slips in evidence)
Put simply if the Respondent engaged the Complainant at €120 nett per day and was unable to subsequently recover this rate from the End Contractor it is not the Complainant’s fault.
I find the Complainant’s claim to be well founded.
2: December 2015 issue
The pay rates issue finally came to a head in early December when the Respondent and the End Contractor became aware that the Complainant had sought the assistance of the WRC to address his wage issue. It was evident from the evidence given, that the End Contractor may have been uncomfortable with Third Party involvement as regards Sub Contractors (the Respondent) at his City Centre Apartment site. A high degree of ambiguity then ensued between the Main and Sub Contractor (The Respondent). It was clearly in the operational interests of the Main Contractor to continue the Complainant on site. The site Foreman (in e mail traffic evidence exhibited) clearly wanted the Complainant on site and the impression was given to the Complainant that things were being “sorted out”.
Unfortunately this did not happen and the Complainant was at the loss of his wages for the two weeks from 4th December to 18th December. The Complainant was contacted by the Respondent payroll Department as normal during this period for his weekly hours and these were provided as normal (text and e mail traffic exhibited). Naturally this lead him to believe that he was still being paid – even if at the disputed lower rate.
Put simply again the End Contractor and the Respondent had disagreed over the rate of pay for the Complainant – the Complainant was put in a very unfair situation by being contacted late on the Friday before the 4th December regarding the need for a decision on the rate of pay (agree to €16:00 per hour) and the ending of the job if he did not agree
The Complainant worked for the disputed two weeks and is due to be paid for these weeks by the Respondent. It was clear from the evidence that all parties knew that the Complaint was working on the City Centre site. In the Revenue correspondence an end of employment date of the 18th December 2015 was cited although this date may have been supplied to them by the Complainant himself.
The evidence pointed clearly to the fact that all the parties knew the Complaint was working on the site for the disputed period.
I find the Complainant’s claim for wages for this period to be well founded and should be paid by the Respondent.
Rate of Pay: 30/07/2015 to 4th December 2015.
Taking the figures produced at the hearing it appears that the total short fall to the Complaint was in the region of a close approximate to €1,682 nett for the period –this being the difference between what was actually received nett and the €600 figure.
I award this sum, to be paid to him by the Respondent-the required necessary Gross figure to be calculated and the required exact nett arrived at after taking all Revenue correspondence (entered in evidence) into account
Wages: Two Weeks 7th December to the 18th December 2015.
The Complainant is due to be paid by the Respondent for these two weeks at the Contracted Rate of €600 nett. I award a sum of €1,200 in nett wages outstanding.
The Gross figure to be calculated and the nett arrived at by the Respondent.
Holiday Pay: In relation to Holiday Pay for the total period (30/07/2015 to the 18th December 2015) I direct that this be calculated by the Respondent and paid (if not already done so – Respondent e-mail of the 6th December refers) to the Complainant as part of his final settlement.
Dated: 20th January 2017