ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008028
Complaint(s):
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-00010665-001 | 05/04/2017 |
Date of Adjudication Hearing: 19/09/2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
In particular, the Complainant herein has referred a complaint of a contravention of Section 5 of the Payment of Wages Act, 1991. Pursuant to Section 6 of the said 1991 Act, in circumstances where the complaint is deemed to be well founded, compensation in the amount so specified may be awarded.
In a preliminary way I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations complaint Form dated the 5th of April 2017 was submitted within the time allowed.
Background:
Both parties opened up comprehensive legal and factual submissions. The Complainant worked in a city centre Hotel. The Complainant took a period of unpaid leave for 4 weeks over the Christmas 2016 and January 2017 period. The Complainant went home to her family. In her absence and for reasons unexplained the Employer mistakenly included the Complainant on the weekly payroll on up to two separate occasions (although the Respondent says it was three times that this happened). The Complainant readily acknowledged two payments though had no recollection of a third. The Payments made, reflected a forty hour week and gave the Complainant net payments into her Bank Account of €347.33 and €352.87. This amounted to an overpayment to the Complainant in the sum of circa €699.00. It is noted that the Complainant’s normal weekly wage would usually yield her a nett income of About €132.00 based on a ten to twelve hour week. I would have to accept that the Complainant on examining her Bank Account knew, or ought to have known that an overpayment had mistakenly been made. |
Summary of Complainant’s Case:
The Complainant gave her own evidence regarding the employment. The Complainant pointed to the Contract of Employment wherein it is specifically recognised that there is a process to be followed in the event of an overpayment in remuneration. The Contract intends that the differential amount would be deducted in the following week “after consultation with you (ie the employee)”. The Complainant believed that this implied a consensual arrangement whereby an Employer would be allowed to have the monies returned but on the basis of an agreement brokered by the Employee. The Complainant, a student, was only available to work between ten and twelve hours a week and when faced with the Supervisor’s option of having the full ten hours a week deducted it was inevitable that she would not be happy with this. Of course the Complainant wanted to discuss a reasonable rate of repayments. The unilateral imposition of a 5 hour rate of repayment which was ultimately imposed was not palatable to the Complainant. The Complainant worked through six weeks with nearly half her weekly wage being deducted. The Complainant lost €48.88 per week which amounted to a €288.00 deduction over a six week period.
Ultimately the complainant resigned her job and left the workplace after a period of agreed Notice in the May of 2017. The Complainant’s representative sought compensation under the Payment of Wages Act where her Employer had failed to agree a process for the re-payment of the over-payment such that would afford the Complainant ongoing financial certainty. |
Summary of Respondent’s Case:
The Respondent’s HR Manager was present to confirm certain matters put to her. It was part of the Respondent’s case that there was no obligation to reach a consensus with the Complainant as part of the consultation provided for. It should suffice that the Complainant was advised that the money would be returned over the course of time. |
Findings and Conclusions:
On balance I am finding that there was an overpayment calculated in respect of 80 hours over two weeks that the Complainant never worked. Her payslips reflect these payments. The Employer proposed that it was 92 hours but the payslip they produced in respect of a third period had not previously been seen by the Complainant and conflicted with the payslip which she had received for the period in question. The Complainant says she was shocked at the amount of deduction (when it came in at 5 hours per week) but I have to find whilst this may be the case she could not be shocked at the fact of deduction. There did not appear to be any particular animosity between the parties. I have noted that the Respondent continues to be at a loss of about €411.00 Although the Respondent puts it at a higher figure. I find as a fact that the Complainant continues to owe €411.00 to her ex-employer. I note that the Employer has not taken any formal steps to re-coup the loss to it at this stage. The Complainant certainly recognises that this money remains outstanding, and is owed to her former employer. In the circumstances, it must be envisaged that any compensation awarded would be offset against the sum of €411.00 which continues to be owed.
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Decision:
I find that there is merit to the Complainant’s contention that she was not dealt with as expediently as she might have been at management level. Nor was the Complainant afforded the consultation process envisaged under the Company Handbook. In recognition of this and the obligation previously outlined I award the Complainant the sum of €511.00 compensation pursuant to Section 6 Payment of Wages Act. As noted this sum is offset against what continues to be owed. |
Dated: 15/11/2017
Workplace Relations Commission Adjudication Officer: Penelope McGrath