+353 (0) 1 211 8434 - info@aocsolicitors.ie -
AOC Solicitors COVID-19 Hub - Read More

AOC
- News

AOC
- News

Employee’s Payment Of Wages Claim For Commission Over And Above Temporary Wage Subsidy Fails As Not Having Been “Properly Payable”

In the recent WRC Decision of Jennifer Weldon v Forthside Lodge Ltd trading as Whitford House Hotel – ADJ-00030367, the WRC examined a claim by Ms. Weldon, that by only paying her the wage subsidy and one cent for a period of time during the Covid-19 pandemic, the Respondent made an unlawful deduction from her wages in breach of the Payment of Wages Act.  

Facts:

The Complainant is a well-established swimming instructor who has worked at the Respondent’s leisure facility since 2007. In addition to giving swimming lessons, the Complainant also carries out lifeguard duties. In terms of her pay, it seems that ordinarily she receives a weekly wage and relatively regular commission on top. The commission arises from swimming lessons taught by her.

The dispute arose because of the Covid – 19 pandemic. The Respondent was adversely affected by the pandemic and availed of the Temporary Wage Subsidy Scheme (“TWSS”) in respect of the Complainant and other employees.

The Respondent closed the swimming pool between March and late July 2020 due to the pandemic. When it re-opened, it did not offer swimming lessons. This meant that the Complainant could only do her lifeguarding duty.  

The Complainant brought a Payment of Wages claim against the Respondent in respect of a five week period when the pool was open but there were no swimming lessons.

Revenue assessed the Complainant’s average pay as €489 for the purpose of the TWSS based on her earnings for January and February 2020 which meant the relevant subsidy payable to the employer in respect of the Complainant was €350.00.

During the five week period in question, the Complainant was paid €350 per week through the TWSS and her employer paid her just one cent per week on top of it.

The Complainant claimed that the Respondent should have topped up her pay over and above the TWSS payment of €350 to bring it up to the €489.00 Revenue had assessed as being her average pay.

She claimed that by not doing so the Respondent made an unlawful deduction of €715.35 from her pay over the course of the five week period. The Complainant also alleged a breach of Section 5 of the Payment of Wages Act by virtue of the fact that she was not given notice of the alleged deduction.

Part of the Complainant’s argument seems to have been that the subsidy her employer received through the TWSS for her was calculated on the basis of her wages with commission. The inference of this on the part of the Complainant appears to have been that the Respondent should therefore have topped up her wages to take into account this commission.

In defending the claim the Respondent submitted that the Complainant was not teaching classes during the period in question and so she was not entitled to commission. The Respondent further stated that the Complainant’s pay with the subsidy (€350.02) was actually higher than her normal flat net pay (without commission) of €339 per week.  

Decision:

In his decision the Adjudicator set out some of the background as to how the TWSS came about i.e. that it was one of the initiatives introduced by the Government in response to the unprecedented societal and economic effects of the pandemic. He explained that it was given statutory underpinning in Section 28 of the Emergency Measures in Public Interest (Covid 19) Act 2020. He pointed out, however, that there had been no amendment to the Payment of Wages Act, to clarify how the TWSS interacted with the requirement of that Act.

He explained that the Payment of Wages Act does not directly address a wage subsidy or lay-off and he observed that such questions have been addressed by considering whether the wages were “properly payable” in the first place. 

In deciding the employee’s claim, the Adjudicator determined that while the subsidy was payable as a proportion of wages due, the scheme and the statute underpinning it did not require the full payment of the employee’s wages.

He observed that Revenue required the employer to pay a top-up of 1 cent in order to trigger eligibility for the subsidy. However, while Revenue guidance referred to an employer making their “best efforts” (in terms of topping up wages) this was not given statutory underpinning.

He found that there was no breach of the Payment of Wages Act. He stated that what was “properly payable” to the complainant during the period in question was the pay due as per her contract of employment without any commission being earned, i.e. her basic hours (for which she was paid).

He stated that not paying the full top up of €143.07 was not a breach of the Payment of Wages Act as this was above what was then properly payable to the Complainant as she was not earning commission. Significantly, he stated that had the Complainant been able to teach lessons and earn commission, then this commission would have been properly payable.

The Adjudicator further found that since the wages claimed were not properly payable, there was no requirement for the Respondent to have notified the Complainant of any deduction. Therefore, Section 5 of the Payment of Wages Act had not been breached.

(There was another issue for determination before the Adjudicator in this case in that the Respondent claimed the Complainant had been overpaid for a particular period of holiday pay. The Adjudicator resolved that point in favour of the employee and found there had been no overpayment. Further details can be found at the link to the decision below.)

Takeaway for the Employers:

Employers may find this case a useful precedent to rely on in helping them to defend pandemic related payment of wages claims concerning the Temporary Wage Subsidy scheme. However, it will only be of assistance where the money claimed was not properly earned in the first place.

Link  – https://www.workplacerelations.ie/en/cases/2022/may/adj-00030367.html

Authors – Laura Killelea and Anne O’Connell

31st May 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

Related Articles