SECTION 7(1), PAYMENT OF WAGES ACT, 1991
STUDENT HOUSING OPERATIONS LTD T/A APARTO
(REPRESENTED BY PENINSULA BUSINESS SERVICES IRELAND LTD)
- AND -
MS DENISE O'BRIEN
Chairman: Mr Haugh
Employer Member: Mr Marie
Worker Member: Ms Tanham
1. Appeal Of Adjudication Officer Decision No ADJ-00016120 CA-00020934-001
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:
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.
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.
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
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."