ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00050889
Parties:
| Complainant | Respondent |
Parties | Mr. David Scanlon | Kennedy Security & Consultancy Ltd. |
Representatives | Mr. John O’Sullivan, SIPTU | N/A |
Complaints:
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-00062299-001 | 20/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00062299-002 | 20/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00062299-003 | 20/03/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00062299-004 | 20/03/2024 |
Dates of Adjudication Hearing: 25/07/2024 and 14/01/2025
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 41 of the Workplace Relations Act 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the Parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission (the “WRC”) as a body empowered to hold remote hearings.
Mr. David Scanlon (the “Complainant”) attended the Hearing. He was represented by Mr. John O’Sullivan of SIPTU. Mr. Sasa Coric attended as a witness for the Complainant. Ms. Sinead Demsey, the HR Manager and Mr. Eddie O’Farrell, the Senior Security Manager, attended for and on behalf of Kennedy Security & Consultancy Ltd. (the “Respondent”).
The Hearing was held in public. Evidence was provided on oath or affirmation. The legal perils of committing perjury were explained.
This matter was first scheduled for hearing on 25 July 2024. However, neither the Complainant nor the Adjudication Officer had sight of the Respondent’s submissions and evidence, which the Respondent said had been filed. In the circumstances, an adjournment was granted. This matter was then heard in full on 14 January 2025.
Complaints:
At the outset of the Hearing, the Complainant confirmed that there was an overlap between complaints CA-00062299-001 and CA-00062299-002. I sought submissions on whether one complaint could be deemed withdrawn. I have considered the matter and the details of the Complaint Form further. I note that the Complaint Form outlines that CA-00062299-001 concerns a complaint that “My employer has not paid me or has paid me less than the amount due to me”, whereas CA-00062299-002 concerns a complaint that “My employer has made an unlawful deduction from my wages and / or tips and gratuities”. In the circumstances and in light of the totality of the evidence before me, I am satisfied that while there is an overlap, these are two separate complaints and so I have addressed both complaints in this decision.
At the outset of the Hearing, I noted that in his Complaint Form, the Complainant refers to the Respondent’s alleged failure to provide core terms in writing. I note that CA-00062299-003 concerns a complaint that “I did not receive a statement of my core terms in writing”. However, in the corresponding narrative, the Complainant outlined: “I have not received a written statement of employment from my employer or contract of employment”. I sought submissions on whether there was an additional complaint before me concerning an alleged failure to provide a statement in writing regarding the Complainant’s terms of employment, in breach of the Terms of Employment (Information) Act 1994. I referred to, inter alia, County Louth Vocational Educational Committee v. The Equality Tribunal [2016] IESC 40, which upheld the flexibility of WRC procedures. I heard submissions from the Parties on this matter. I am satisfied that the complaint before me, as outlined in the WRC Complaint Form, refers both to the provision of core terms and to the provision of a statement in writing, which are two separate complaints. In the circumstances, I have ruled that this specific complaint can be added to this adjudication file. The additional complaint has been allocated the reference number CA-00062299-004.
Documentation:
At the conclusion of the Hearing, the Respondent was asked to provide documentation which had been referred to in the course of the witnesses’ evidence. Both Parties were then provided with the opportunity to provide submissions on the same. The Complainant provided submissions. The Respondent indicated that it had nothing further to add. A further hearing day was not required.
Background:
The Complainant worked in a security role for the Respondent from 23 September 2020 until 28 June 2024. He commenced as a Driver / Security Officer and was promoted to a Supervisor position in August 2021. He was promoted to Assistant Manager in December 2021 and to Manager in January 2023. The Complainant alleges that his wages were reduced without notice or consent in September 2023. The Complainant submitted a grievance in October 2023, indicating “I am accepting the cut in wages under protest”. On 20 March 2024, the Complainant filed a WRC Complaint Form. The Complainant alleged that the Respondent acted in breach of the Payment of Wages Act 1991 as amended. He alleged that the Respondent made an unlawful deduction of €232.96 gross per week amounting to €6,056.96 in total. He alleged that this resulted in him being paid less than what was due to him. He also alleged that the Respondent made an unlawful deduction from his wages. The Complainant further submitted that the Respondent failed to provide him with his core terms in writing, in breach of the Terms of Employment (Information) Act, 1994. The Complainant further alleged that he was not provided with a statement in writing in breach of the Terms of Employment (Information) Act, 1994.
The Respondent denies the allegations in full. The Respondent submitted that the Complainant was overpaid by approximately €11,000 from January/February 2023 until September 2023. The Respondent submitted that it did not seek to recover the overpayment and that no deduction was applied to the Complainant’s wages. The Respondent submitted that it provided the Complainant with his core terms of employment. |
Summary of Complainant’s Case:
The Complainant provided detailed written and oral submissions. The Complainant – Evidence: The Complainant outlined that he commenced working for the Respondent in September 2020 as a Security Officer. He dealt with site security protocols and traffic. In 2021, he was then promoted to Site Supervisor when he had to secure and patrol the site. In January / February 2022, he was promoted to Assistant Manager and in January / February 2023, he was promoted to Manager. He outlined that he did not receive any new contracts as he was promoted, despite regularly asking for the same. He said that it became a “stonewall issue” and he gave up. He said that he had asked “three or four times” for a contract regarding his most recent Manager role. He said that he negotiated his new role with Mr. Eddie O’Farrell, the Senior Security Manager, and that he would not have taken the role if he had received the terms and conditions in writing, outlining the pay terms as alleged by the Respondent. He said that when he asked for a copy of his contract and terms and conditions on 15 May 2024, he was sent a copy of the contract that he had signed in September 2021. The Complainant outlined that from January until September 2023, he was paid his correct wage. However, from the week ending 22 September 2023, his rate of overtime was reduced and the number of overtime hours were reduced, while his core hours were increased. He said that he had been consistently working 60 hours per week. He said that he did not believe that he had been overpaid in error. He said that Mr. O’Farrell told him that when the Employment Regulation Order (the “ERO”) came in, Mr. Brian Kennedy “was annoyed” by the Complainant’s wages and wanted them to be reduced. He said that Mr. O’Farrell told him that Mr. Kennedy “did not have a leg to stand on”. He said that he did not consent to the wage cut. He said that he believed that the Respondent did not look for any money back as he told Mr. O’Farrell that he would quit and as Mr. Coric, the Deputy Manager, had also indicated that he would not stay on. The Complainant outlined that before he took the role as Security Manager, Mr. O’Farrell called him up to the hut to offer him the role. He said that they negotiated the rate of pay. The Complainant stated that the pay was never a mistake and that he knows how the Respondent “operates”. He said that at the time, he was on €1,014 gross and €790 net per week. He said that he told Mr. O’Farrell that he wanted at least €200 more per week after tax, to which Mr. O’Farrell replied “don’t worry, leave it with me”. The Complainant said that he did not have anything in writing and that he was reliant on his payslip. Cross-Examination: Under cross-examination, the Complainant confirmed that he had received his “core contract” when he started with the Respondent and that he signed it again in September 2021. He clarified that by “initially”, he meant that he received it about two weeks before he joined the Respondent. The Complainant stated that he did not want the Security Manager role unless he was paid €200 more per week. He said that there was no formal meeting. He said that there was no agreement regarding the basic pay rate or the overtime rate. He said that they only agreed the minimum that he would accept. He said that Mr. Coric was there. The Complainant confirmed that he did not query the rate set out in the email to him from Payroll dated 9 February 2023. He also stated that he did not accept the rate that his predecessor was on. The Complainant confirmed that he was promoted three times and that he did not receive an updated contract. He said that after being promoted to Security Manager, Mr. O’Farrell said that he would get a contract within a week, but this never happened. He said that he accepted his rate of pay as outlined on his payslip. The Complainant stated that when the overtime rate of pay changed in September 2023, he was contacted by the Payroll Manager. He said that Mr. O’Farrell had told him not to contact Ms. Dempsey. He said that his subsequent conversation with Ms. Dempsey had descended into a shouting match during which he told her that it is for HR to protect the worker. He said that he does not recall receiving other phone calls from Ms. Dempsey. The Complainant stated that he does not recall that during the conversation with Ms. Dempsey on 2 October 2023 they verbally agreed to “iron out the matter”. He said that he had no recollection of being told that the Respondent would not recoup overpaid wages. He also said that it was a “heated” conversation and that it was “not professional”. He also said that he was happy to discuss the matter with Mr. O’Farrell only and that he had minimal contact with HR. He said that everything was agreed and discussed with Mr. O’Farrell. The Complainant said that he had escalated the matter to HR, on SIPTU’s advice. The Complainant denied that he told Ms. Dempsey that he was happy to continue on the new rate, so long as the Respondent did not seek to recoup the overpayment. Mr. Sasa Coric – Evidence: Mr. Coric outlined that he worked for the Respondent from September 2020 until 1 July 2024. His last role was that of Assistant Manager. He was based in Intel in Leixlip. He said that the Complainant told him that the Respondent had “messed up his payslips” and had reduced his wages. He said that this was not a surprise to him as there were often mistakes. He said that he was at a meeting with the Complainant and Mr. O’Farrell regarding the Complainant’s wages being cut in September 2023. He said that Mr. O’Farrell said that Mr. Kennedy would look for the overpayment. He said that Mr. O’Farrell told the Complainant to say that he doesn’t have any money. He said that Mr. O’Farrell advised the Complainant to contact SIPTU. He said that he was also present at the meeting between the Complainant and Mr. O’Farrell in January 2023 when the Complainant took over as Manager. He said that the Complainant wanted more money than his predecessor. He said that the Complainant said that he would take on the role “but for better money”. He said that Mr. O’Farrell said that he “would look after it”. Cross-Examination: Mr. Coric stated that he took over the Complainant’s role and received his hourly rate of €16.65. He said that his rates were discussed during the meeting with the Complainant and Mr. O’Farrell. He said that he said that he wanted to work 50 hours at an hourly rate of €16.65. He said that the Complainant’s increase was also discussed and that he said that he wanted €200 more. He said that the Complainant said that he would work 60 hours per week. He said that the Complainant was told by Mr. O’Farrell that he would “be taken care of”. |
Summary of Respondent’s Case:
The Respondent provided detailed written and oral submissions. Ms. Sinead Dempsey – Evidence: Ms. Dempsey outlined that the Complainant’s first weekly payment as Manager was correct but that there was on error on the system from his second week onwards. She said that this was identified when there was an audit following an ERO rate change. She said that the Complainant was emailed on 28 September 2023 by the Payroll Manager and told that there had been an error in his overtime rate. Ms. Dempsey outlined that she investigated the matter and that the Complainant should have been on his predecessor’s pay rate. Ms. Dempsey outlined that she tried contacting the Complainant by phone and left voicemails for him to call her back, but received no response. She said that she also asked the Complainant in front of Mr. O’Farrell to call her back. Ms. Dempsey said that on 2 October 2023, she called the Complainant. She said that that they spoke at length and that it was a heated discussion. She said that she apologised on behalf of the Respondent. She said that “everyone knew” that he was taking over the role on the same rate as his predecessor. She said that it had all been agreed verbally. She said that she told the Complainant that no monies would be recouped and that, going forward, everything would be in writing. She said that the Complainant told her that he would go to the union. She said that the next correspondence that she received from the Complainant was an email outlining his grievance in November 2023. Ms. Dempsey said that there was subsequently a TUPE and the Complainant chose not to transfer and resigned on the day that his contract ended at Intel in June 2024. She said that the Complainant’s basic hourly rate was €18.25 and that overtime only starts after 48 hours. She said that the Payroll Manager had emailed the Complainant about his correct rate on 9 February 2023. Cross-Examination: Ms. Dempsey stated that the Complainant does not have the core terms of employment for a Security Manager role. She stated that employees should have their terms and conditions in writing. She confirmed that the Complainant was not provided with amendments to his terms of employment in writing. She also accepted that any changes should be notified to the Complainant within four weeks. Ms. Dempsey said that the fact that the Complainant’s terms would be the same as his predecessor was communicated to him verbally. Ms. Dempsey said that the error in the Complainant’s pay was discovered in September 2023 following an audit. Ms. Dempsey said that the Complainant refused to engage with her on any level and refused to respond to her calls and emails. She said that the Complainant would only communicate with Mr. O’Farrell and that he would not engage with her. She said that this was agreed at site local level. She said that nothing was agreed properly. Ms. Dempsey said that the Complainant has been told that the Respondent will not recoup the overpayment of approximately €11,000. Mr. Eddie O’Farrell – Evidence: Mr. O’Farrell outlined that he was the Senior Security Manager for the Respondent for the past eight years. He said that he met the Complainant on the Intel site in Leixlip and that he was the Complainant’s Manager for the entirety of his employment. He stated that the Complainant was “a very diligent and hardworking security guard” and that he was rapidly promoted. He said that he met with the Complainant onsite in January 2023, when he was an Assistant Manager. Mr. O’Farrell outlined that the previous Manager, who had resigned, had recommended that the Complainant take on the role as Manager. Mr. O’Farrell said that he put the proposal to the Complainant that he take on the role as Manager. He said that the Complainant wanted to work 60 hours per week, which he agreed to. He also said that the Complainant knew that there was an ERO coming up and that an increase in pay would make the position more attractive to him. Mr. O’Farrell said that he did not discuss the rate as he did not know what the previous Manager was earning. Mr. O’Farrell said that the Complainant accepted the role. Mr. O’Farrell said that he then rang HR and advised them to update the Complainant’s contract which was to be the same as his predecessor’s, except for the 60-hour-working week. Mr. O’Farrell referred to an email dated 20 January 2023 which he had sent to HR which confirmed this. Mr. O’Farrell outlined that he then spoke with Mr. Coric, who accepted the Deputy Manager role. Mr. O’Farrell said that, in September, when the ERO came in, it was discovered that the Complainant’s rate was too high. He said that the Complainant was very aggrieved. He said that he explained to the Complainant that he did not know what the rates were. He said that the Complainant said that he would take it up further. He said that he told the Complainant that, by all means, he could go to SIPTU. He said that it was a conversation and not a directive. He said that he would never agree to an extra €200 in pay for the Complainant. He said that he could not “even countenance that”. He said that the contract would not allow for it. He said that they never discussed specific figures. He said that the only thing he said was that the ERO would be paid to the employees on site. He said that he did not recall telling the Complainant not to contact HR. Cross-Examination: Mr. O’Farrell said that when he spoke with the Complainant in January 2023, he told him that he could offer him the same remuneration as the previous Manager and that this could be enhanced by way of increasing his hours, but nothing else. He also said that no salary “whatsoever” was discussed. Mr. O’Farrell said that he asked HR to organise the contract with new terms and conditions. He said that Mr. Coric’s job was advertised. Mr. O’Farrell said that there was a long discussion with the Complainant when he discovered that he was being paid a lesser rate of pay. He said that he told the Complainant that he did not see how the Respondent could claim the money back if it was an error. Mr. O’Farrell said that he was initially under the misapprehension that the Complainant’s basic rate was being cut. He said that if it had happened to him, he would have been aggrieved. He said that when it was explained to him that it was a recalculation concerning overtime, his position changed. He said that he may have said more, but nothing that would affect the error. He said that his personal opinion was irrelevant. Mr. O’Farrell said that in January 2023, he first met with the Complainant in the canteen and then went to meet Mr Coric. He said that he did not discuss the Complainant’s contract with the Complainant when Mr. Coric was present. He said that the Complainant had already accepted the Manager position and that he called HR to advise them of this, before he met with Mr. Coric. |
Findings and Conclusions:
CA-00062299-001 and CA-00062299-02 – Payment of Wages Complaints: Preliminary Issue – Cognisable Period: The Law: Section 41(6) of the Workplace Relations Act 2015 (the “WRA”) provides: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” The Complainant filed his Complaint Form on 20 March 2024. I can consider his complaint for six months immediately prior to this date, which is from 21 September 2023. It is alleged that from 22 September 2023, the Complainant’s pay was changed and therefore I note that the alleged unlawful deductions fall within the cognisable period. Substantive Issue – Payment of Wages: The Law: Under the Payment of Wages Act 1991 as amended (the “PWA”), “wages” 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”. Section 5 of the PWA further provides as follows: “5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.” And “5(5) Nothing in this section applies to— (a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where— (i) the purpose of the deduction or payment is the reimbursement of the employer in respect of— (I) any overpayment of wages, or (II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and (ii) the amount of the deduction or payment does not exceed the amount of the overpayment”. And “5(6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, 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 employee on the occasion.” Section 5(6) of the PWA was considered in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the PWA has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful. Findings and Conclusion: Properly Payable: In order to determine what wages are properly payable, I must firstly consider the Complainant’s contract of employment. The only contract of employment on record concerns the Complainant’s role as Driver / Security Officer and is dated 23 September 2021. It states as follows: “Remuneration: Your rate of pay will be €12.60 per hour when working as a Controller. You will be paid €11.65 per hour when you work as a security officer for the first 48 hours worked. This is a composite rate of pay which includes night work. You will receive time and a half for anything over 48 hours per week in the six week roster cycle. Overtime payments will be paid every six weeks. The above rates are subject to change within the guidelines of the J.L.C. Agreement. Payment will be made weekly directly into your bank account. The Company will open a PRSA Account which you are invited to join, please contact Human Resources if you require more information. The company reserves the right to deduct monies from your wages in the event of overpayment in pay, annual leave or other benefits paid by the company.” While the rates in the Complainant’s contract of employment no longer apply, as he has since been promoted three times, I note that the contract of employment provides that overtime commences after 48 hours worked. I note that this is also set out in the email from Payroll to the Complainant dated 9 February 2023 (set out in full below). Finally, I also note that in her evidence, Ms. Dempsey, outlined that overtime commences after 48 hours worked. The Complainant was most recently promoted to Manager on 27 January 2023. There is a clear conflict in evidence between the Complainant and Mr. O’Farrell about what was said and / or agreed as regards the Complainant’s new rate of pay as Manager. The Complainant states in his evidence that he only agreed to the promotion if he received €200 gross per week more than his predecessor. In contrast, Mr. O’Farrell stated that no pay details were discussed. I note that Mr. Coric stated that Mr. O’Farrell told the Complainant that he “would be taken care of”. However, Mr. O’Farrell stated that Mr. Coric was not present when he discussed the Complainant’s promotion with him. Mr. O’Farrell pointed to an email that he sent to HR dated 20 January 2023 which states that the Complainant “is to take over as Site Security Manager with effect from 27th January 2023, at the same rate as [his predecessor] is currently in receipt of, and will operate a roster of 60 hours per week.” However, I note that the email does not provide the pay rate details. Notably however, the Complainant emailed the Payroll Manager regarding the setup of his overtime on 9 February 2023 – less than two weeks after his promotion to Manager. The Payroll Manager replied as follows: “Hi David, Looking back at [your predecessor], he got €24.675 O/T rate on a weekly basis but has not been paid the 6 weekly O/T payment since August 2021, so I don’t believe you get both, but please query it with HR if you have any issues. I am adjusting your payslip now to take into account the overtime worked above 48hours. Kind regards”. The Complainant did not reply to that email. There was no further correspondence on this matter until 28 September 2023, when the Payroll Manager contacted the Complainant to inform him that there had been an error in the overtime rate which had been subsequently applied to him. The Payroll Manager indicated that HR would be in contact with him. In the circumstances, I am satisfied that the email dated 9 February 2023, is a contemporaneous document which sets out the Complainant’s correct overtime rate of pay. The Complainant’s payslip for the week ending 8 September 2023 indicated the following details: “Payments 39 hours @ €18.25 €711.75 21 hours @ €37.02 (Rate B) €777.42” The Complainant’s payslip for the week ending 22 September 2023 indicated the following details: “Payments 50 hours @ €18.25 €912.50 10 hours @ €25.23 (Rate B) €252.30” In his evidence, the Complainant relied on his payslip for the week ending 8 September 2023 as proof of his basic pay and overtime rates. In his payslips both before and after the alleged deduction, his basic pay rate is cited as €18.25. The Respondent also submitted that the Complainant’s basic pay rate was €18.25. Therefore, I find that the Complainant’s basic hourly rate was €18.25. However, as noted above, there was considerable disagreement regarding the overtime hourly rate and from when it applied. On the basis of the documentary evidence before me, namely the Complainant’s contract of employment and the email from Payroll to the Complainant dated 9 February 2023, I am satisfied that the Complainant’s overtime rate commenced after 48 hours of work. I further note that Mr. O’Farrell’s email to HR dated 20 January 2023, outlines that the Complainant would be on the same rate as his predecessor. I am satisfied, on the basis of the email from Payroll to the Complainant dated 9 February 2023 that that the Complainant’s overtime rate, by reference to his predecessor, was confirmed as €24.675. On the evidence, I note that a new ERO subsequently came into force. I therefore accept the Respondent’s submission that the Complainant’s correct overtime rate was €25.23, as reflected in his payslip for the week ending 22 September 2023. CA-00062299-001 – Payment of Wages Complaint: In his Complaint Form, the Complainant indicates under “Pay Complaint Type”: “My employer has not paid me or has paid me less than the amount due to me”. I note that the Complainant’s payslip for the week ending 22 September 2023 incorrectly states that the overtime rate starts after 50 hours of work, rather than 48 hours of work. From 22 September 2023 until 20 March 2024, the Complainant was paid for 50 hours per week at a rate of €18.25 per hour. For two of those hours, he should have been paid at the overtime rate. For the reasons set out above, I accept that the Complainant’s correct overtime rate was €25.23. Therefore, there was a weekly shortfall in pay of €13.96 (2*€6.98). This shortfall occurred over the course of 6 months, which comes to €362.96 gross (26*€13.96). For the reasons set out above, I find that this complaint is partly well founded. I direct the Respondent to pay the Complainant the amount of €362.96. This is a gross figure and is subject to taxation and any statutory deductions. CA-00062299-002 – Payment of Wages Complaint: In his Complaint Form, the Complainant indicates under “Pay Complaint Type”: “My employer has made an unlawful deduction from my wages and / or tips and gratuities”. I note that the Complaint’s contract of employment provides for the recoupment of an overpayment. It states: “The company reserves the right to deduct monies from your wages in the event of overpayment in pay, annual leave or other benefits paid by the company.” For the reasons set out above, I am satisfied that the Complainant’s overtime rate commenced after 48 hours of work. I also accept that the Complainant’s basic hourly rate was €18.25 and that his overtime rate was €25.23, as reflected in his payslip for the week ending 22 September 2023. On the evidence before me, it appears that the Complainant received an overpayment from January / February 2023 until his payslip dated 22 September 2023. The Respondent outlined in its submissions and evidence that it acknowledged its error as regards the overpayment and that it is not seeking recovery of the same. I note that the Complainant was informed of the error by email from Payroll dated 28 September 2023; by way of conversation with Mr. O’Farrell in September / October 2023; and by way of conversation with Ms. Dempsey on 2 October 2023. I note that the Respondent did not recoup the overpayment. I am satisfied that in correcting the Complainant’s pay from September 2023, the Respondent did not make an unlawful deduction and therefore I find that this complaint is not well founded. (Note – the mater of the overtime rate commencing after 48 hours worked is addressed under CA-00062299-001 above). CA-00062299-003 and CA-00062299-004 – Terms of Employment (Information) Act Complaint: The Law: In his Complaint Form, the Complainant indicates under “Terms and Conditions of Employment Type”: “I did not receive a statement of my core terms in writing under the Terms of Employment (Information) Act 1994”. In the corresponding narrative, the Complainant outlined: “I have not received a written statement of employment from my employer or contract of employment”. The Terms of Employment (Information) Act 1994, as amended, (the “TE(I)A”) sets out the basic terms of employment which an employer must provide to an employee in written form. Section 3(1A) of the TE(I)A obligates an employer to provide employees with certain essential information, or core terms in writing within five days of commencing employment. Section 3(1) of the TE(I)A obligates an employer to provide an employee with a statement in writing of their terms of employment within one month of commencing employment. The Complainant alleges that he was not provided with his core terms of employment in writing. The Complainant further alleges that he was not provided with a statement in writing of his terms of employment. Findings and Conclusion: CA-00062299-003 – Core Terms Complaint: The Complainant was provided with a contract of employment regarding his role as Driver / Security Officer, which is dated 23 September 2021. Under cross-examination, the Complainant confirmed that he had received this “core contract” shortly before he started with the Respondent and that he signed it again in September 2021. On the evidence before me I am satisfied that the Complainant received a statement of his core terms in writing at the outset of his employment and so I find that this complaint is not well founded. CA-00062299-004 – Statement in Writing Complaint: The Complainant was provided with a contract of employment regarding his role as Driver / Security Officer, which is dated 23 September 2021. Under cross-examination, the Complainant confirmed that he had received this “core contract” shortly before he started with the Respondent and that he signed it again in September 2021. On the evidence before me I am satisfied that the Complainant received a statement in writing on his terms of employment at the outset of his employment and so I find that this complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00062299-001 – Payment of Wages Complaint: For the reasons set out above, I find that this complaint is partly well founded. I direct the Respondent to pay the Complainant the amount of €362.96. This is a gross figure and is subject to taxation and any statutory deductions. CA-00062299-002 – Payment of Wages Complaint: For the reasons set out above, I find that this complaint is not well founded. CA-00062299-003 – Terms of Employment (Information) Act Complaint: For the reasons set out above, I find that this complaint is not well founded. CA-00062299-004 – Terms of Employment (Information) Act Complaint: For the reasons set out above, I find that this complaint is not well founded. |
Dated: 08-04-25
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Payment of Wages Act 1991, Terms of Employment (Information) Act 1994. |