Complainant

Respondent

Parties

Michael  Forde

Panscape Partition Systems Ltd

Representatives

James Lucey and Sons, LLP

Peninsula Business Services

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00059810-001

05/11/2023

This is the third time the complainant has referred a complaint on the same facts to the WRC to compel his employer to abide by the terms of his contract.

 It has been heard on three occasions by the WRC and Labour Court. At all times they have held in favour of the complainant. The facts of the case have not changed since it was initially heard.

The complainant commenced employment with Panscape Partitions Systems Limited on April 7th, 2000. His  gross weekly wages are €1290 of which he receives €1032 net.

For several years he has been assigned to a site operated by Sisk construction in Limerick and provided maintenance on site. Sisk Construction in turn pay the respondent for the complainant's services including two hours of travel money per day, ten hours per week, including days of leave. The rate is €20.90 per hour

The complainant  therefore has a contractual entitlement to two hours of travel money per day, ten hours per week , including days of leave. This is a contractual payment and not an expense.

The respondent stopped paying the travel money on April 23rd, 2021, saying that it could not afford it and began paying one hour per day, five hours per week, excluding days of leave, effectively, less than half the agreed hourly travel rate previously paid and half what it was receiving for him from Sisk construction.

It commenced to unlawfully deduct this from his wages from April 23rd, 2021, and this has continued to date; an unlawful deduction of €104.50 per week from the complainant 's wages.

The complainant  initially referred his complaint to the WRC on May 5th,  2021, The initial complaint was scheduled for adjudication on September 10th, 2021, The Decision was issued on January 4th, 2023 and found that the complainant  has a contractual entitlement to two hours of travel money per day, including days of leave. He further held that this was a contractual payment and not an expense.

He held that the complaint was well-founded and ordered the employer to pay to the complainant  the unlawful deduction. (ADJ- 00033161.)

 The employer appealed to the Labour Court which in June 2023 found in favour of the complainant and ordered that the unlawful deduction be paid. The employer eventually paid this on  October 4th, 2023 . (Labour Court determination NO. PWD236).

The respondent continues to refuse to make payment, and this necessitated a further complaint to the WRC to cover the period January 20th, 2023, to July 17th, 2023 . Again, the WRC held in the complainant‘s favour.

In this case the complainant is seeking the recovery of the unlawful deductions from his wages to cover the period July 18th, 2023, to November 3rd, 2023. This is a total of fifteen weeks and three days. The Payment of Wages Act, 1991 prohibits unlawful deductions from an complainant 's wages.

In determining what constitutes wages Section 1 of the Act provides that wages in relation to an complainant  'means any sums payable to the complainant  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 con­ tract of employment or otherwise, and

( b) any sum payable to the complainant  upon the termination by the employer of his contract of employment without his having given to the complainant  the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:'

In this case the payment was recorded and continues to be recorded on the complainant 's pay slip as a taxable payment. It is not an expense incurred by the complainant  and falls within the definition of a wage as set out in section 1 of the Act. The Payment in this case, as clearly confirmed by the pay slips, is a contractual entitlement and not an expense. This has been upheld by the WRC and Labour Court into prior decisions specifically concerning the facts of this case and the parties

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section 5(6} states.

"Where-

(a)                                                                the total amountofany wages that are paid on any occasion by an employer to an

complainant  islessthanthetotalamountofwages thatis properly payable by him to the complainant  on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or none of the wages that are properly payable to an complainant  by an employer on any occasion (after making any such deductions as aforesaid) are paid to the complainant , then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the complainant  on the occasion".

Section 5(1) of  The Payment of Wages Act clearly requires that for a deduction to be lawful that deduction must be authorised by statute or authorised by a term of the complainant 's contract,

In this case there is no statutory document made or any instrument made under statute which would have allowed the employer to make any deduction and therefore in those circumstances the deduction is an unlawful deduction from the complainant’s wages. Similarly, there is contractual term in his contract that would justify any such deduction.

In this respect the complainant  again refers the adjudicator to the two decisions which havedealtwiththisparticularcase.

Section 6 of the Act sets out the jurisdiction to make an Award in the event of decision in favour of the complainant

Under section 6(2( of the Payment of Wages Act the court can order the employer to pay to the complainant  compensation of such amount (if any) as it thinks reasonable including an order directing the employer to make payment up to twice the net amount of wages that should have been made to the complainant  under section 6(2(b).

In this respect of  this unlawful deduction of €104.50 per week, it constitutes a significant proportion of the complainant’s weekly earnings and has been ongoing over the past three years despite WRC and Labour Court decisions to the contrary. It has resulted in the complainant being subjected to unnecessary and avoidable financial hardship by his employer.

Taking into account the background to this case and in particular the behaviour of the employer and his continued breach of the legislation since 2020, we respectfully submit that this is a fit and proper case where the WRC would consider making an order for the maximum compensation .

The Payment of Wages Act specifically requires that for a deduction to be lawful that the prior written consent of the complainant  is required . No such written consent was provided in this case by the complainant

The Payment of Wages Act requires that for a deduction to be lawful that deduction must be. authorised by statute or authorised by a term of the complainant 's contract. In this case there is no statutory document made nor any instrument made under statute which would have allowed the respondent to make any deduction and therefore in those circumstances the deduction is an unlawful deduction from the complainant s wages. Similarly, there is no contractual term in the complainant s contract that would justify any such deduction.

Accordingly, it follows that the deduction in this case is unlawful under Section 5(1) of the Payment of Wages Act, 1991

The respondent submits that no specific term in a contract of employment has been agreed as regards two hours per day relating to travel expenses for working days nor bank holidays or annual leave.

In 2018 the complainant informed the respondent that there was a Registered Employment Agreement in place under which it had to pay him two hours of travel time per day. The respondent, without checking, orally agreed to pay him two hours travel time per day, however, just, and so only if the main contractor Sisk, agreed to pay such amount to the Respondent.

The information above was confirmed by the complainant under oath during ADJ-00044843 according to the WRC Decision page 3: “By 2018, the complainant decided to pursuethepaymentoftravelandwasinformedbytheRespondentthat“iftheMainContractor(named)willgiveitto me, I will pay you”.

The Decision mentioned above has been appealed to the Labour Court in relation to other aspects.

The basis for the oral agreement between the parties was settled as such. The complainant   would only be paid the 2 hours travel time under one condition: that the respondent be paid the respective amount by the main contractor.

It is submitted that the Respondent has negotiated an uplift with the Main Contractor Sisk in order to be able to pay the complainant 2 hours travel time per day.

However, not only the Registered Employment Agreement was struck out by the Supreme Court in McGowanandOrsvTheLabourCourtandOrs1sincethe9th ofApril2013wheresuchRegistered Employment Agreements weredeemedunconstitutional,butalsoSiskceasedpaying theuplift totheRespondentinordertoallowittopay2hourstraveltimetothe complainant.

The Respondent paid based on the complainant’s word that there was an REA ordering him to do so, which was not true, and based on the agreement with Sisk which is no longer in place. Therefore, there is no legally binding agreement in place imposing the respondent to pay travel expenses, notably on bank holidays or annual leave, when he is not working.

Notwithstanding the above, the complainant has received 1 hour travel time per day since 18th July 2023 in accordance with the attached pay slips. The Respondent submits that it cannot afford to pay 2 extra hours daily to the Claimant and that it has been trying to review such verbal agreement with the Claimant over the last few months, however, the Claimant is refusing to engage with the Respondent.

Under the circumstances above, the respondent respectfully submits that the complaint under the Payment of Wages Act, 1991 should fail. Should an award be made, it should be restricted to the period from 18.07.2023 to 05.11.2023, date of the lodgment of the complaint, except during bank holidays and annual leave.

There is no agreement to pay two hours travel expenses on days that the complainant is off work such as public holidays and annual leave, as he does not need to commute on these days.

The background to this complaint is both very simple and quite extraordinary.

As can be seen in the complainant’s submission he has twice brought a complaint on the same facts to the WRC and twice has had his complaint upheld. On one occasion an appeal to the Labour Court has also gone in his favour, and it appears as if the second WRC Decision is also under appeal.

The facts of the matters are very simple.

The complainant had been in receipt of two hours’ payment per day which are inaccurately and interchangeably referred to as ‘travel expenses’ or (payment for) ‘travelling time’ in the amount of two hours pay.

The respondent unilaterally cut this in half in July 2021.

Much has been made of the origins of the payment, and the conditionality attached to it when it was agreed in 2018. In fact, these origins are irrelevant in the absence of some express agreement between the parties as to the circumstances in which it might be varied or ended. There is no such agreement.

There is the second consideration as to the status of the payment.

Again, there is no room for doubt here.

Whatever it may be called, it is not a travel expense in the accepted (including by the Revenue Commissioners) sense of the word. It is not reimbursement for business travel originating at the complainant’s place of work and taking him to other places on business.  It is fully taxed.

In its determination of the matter on identical facts to those in this complaint (save for a different cognisable period) the matter was first decided by the WRC in ADJ 33161  in January 2023. This was appealed to the Labour Court which upheld that decision in June 2023. The Labour Court decided.

The Respondent accepted that since the Complainant had commenced work for him, he had received an additional payment at his normal hourly rate of 10 hours a week and that this payment was referred to as travel time. He also accepted that this payment was recorded on the Complainant's pay slip as a taxable payment and was not in respect of any expenses incurred by the Complainant. The Court having considered the submissions of the parties finds that the Complainant had a contractual entitlement to two hours of travel money per day and that during the cognisable period there was a short fall in the payment of same to the value of €292.60.

Determination

The Court finds that the travel time payment in this case was a contractual entitlement and not an expense and that the complaint is well founded. The Court determines that the Respondent shall pay to the Complainant compensation of €292.60.

Both appeals fail the decision of the Adjudication Officer is upheld.

This decision of the Court was issued in June 2023 and quite what the respondent hoped to achieve by a return to the WRC in November 2023 with the same case is mystifying. 

In due course, in January 2024 the Adjudicator issued her decision and unsurprisingly upheld the complaint.

A matter of a few months later the respondent returned to the WRC; nothing had changed in respect of any of the facts grounding the case and it is hard to know how the respondent has any expectation of a different outcome especially given the position taken by the Labour Court.

Indeed, the subjection of the complainant by the respondent to the cost and inconvenience of a fourth hearing, to say nothing of his continuing losses is quite unnecessary and reprehensible.

Complaint CA-00059810-01 is well founded, and I direct the respondent to pay the complainant €1630.20 subject to statutory deductions.

Payment of Wages, Deductions