# Need legal representative with Accountancy skillset



## eCubation (20 Mar 2014)

Hi,

I have a hearing pending with the Labour Rights Commission against my employer for underpayment of Salary and Pension dating back to 2009. I already have a solicitor whom I've met with on a number of occasions. However, at the most recent meeting, I was advised that due to the payroll calculations involved, I would need a payroll expert to review and confirm the payroll calculations or ideally, a barrister with a background in accountancy who could build the case. 
To date, I haven't received all that I am owed from my employer. My legal bill is already in the thousands (about 6k) and now I'm told I'll need to lodge about 2k with the solicitors in order to get a barrister with a background in accountancy to build a case. 

My questions are, 


Can I simply get a payroll expert/accountant to review the calculations and provide this to my solicitor?
Would a payroll expert's review of calculations be enough proof to help my solicitor build their case?
Who is the best payroll expert/accountant to obtain such clarification from in this case (I've already obtained some quotes from Tax Assist and an independent payroll company)?
Any other advice on what I should do at this stage?

Thanks.


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## Brendan Burgess (20 Mar 2014)

How much is your claim for? 

I don't think you should be spending this amount of money on an LRC hearing.  If I remember correctly, either side can appeal the decision to the Employment Appeals Tribunal.  If the case goes to the EAT, you might want to start spending money then. 

You don't need a payroll expert as such. Have you set out your claim clearly?  This should be relatively straightforward.  If the contract says you get paid €5,000 a month, and they paid you €4,000, why do you need an expert? 

Is your former employer likely to pay any award made against it?


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## eCubation (20 Mar 2014)

Brendan Burgess said:


> How much is your claim for?
> 
> I don't think you should be spending this amount of money on an LRC hearing.  If I remember correctly, either side can appeal the decision to the Employment Appeals Tribunal.  If the case goes to the EAT, you might want to start spending money then.
> 
> ...



Hi Brendan,

Thanks for the response. To date, as far as I can determine, the claim is for about 20K and that's made up of underpayment of salary, underpayment of pension, overpayment of tax, PRSI, health Levy, USC and BIK. It's a total mess. 

I should point out that the Pensions Ombudsman has been involved but has put a stay on their investigation pending the LRC hearing. 

I'm trying my best not to spend this kind of money and so am doing as much of the leg work as is possible. You're right AFAIK either side can appeal the decision to the EAT.

I think I definitely do need a payroll expert despite me having detailed my claim, the solicitors state that their not accountants and can't build a case without verification of the numbers. I  need an expert simply to verify that my calculations of underpayments is correct. 

I don't know how likely my employer is to pay any award made against it but they have paid some backpay owed to me to date amounting to approximately 4k. Some pension underpayments have been refunded and the Pension Trustees have acknowledged that there has been non-remittance of pension contributions and incorrect pension contribution amounts dating back to 2007.

Also, my employer didn't pay any BIK for any employee from 2007 up until April 2009.

I don't know how best to proceed i.e. I owe legal fees now regardless and any further meetings I have with my solicitor drive costs up more. 

The LRC hearing was confirmed as having been adjourned earlier this month until they hear back from me/my representatives.


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## browtal (20 Mar 2014)

Hi eCubation,
If you are in the Dublin area I can recommend somebody who is excellent and a fair dealer. Please contact me privately for details.
Browtal


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## eCubation (21 Mar 2014)

browtal said:


> Hi eCubation,
> If you are in the Dublin area I can recommend somebody who is excellent and a fair dealer. Please contact me privately for details.
> Browtal



Hi Browtal,

Yes, I am in the Dublin area and I would very much appreciate if you can recommend someone who has expertise in this area with the relevant qualifications. However, I'm not sure if I can PM anyone as yet... I don't see that option is available to me? Can I reply to you if you PM me?


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## browtal (21 Mar 2014)

Hi eCubation,
if you e mail   
rmn@eircom.net and mention this site you should be able to get some help.

Browtal


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## Joe_90 (21 Mar 2014)

eCubation said:


> To date, as far as I can determine, the claim is for about 20K and that's made up of underpayment of salary, underpayment of pension, overpayment of tax, PRSI, health Levy, USC and BIK.
> 
> Also, my employer didn't pay any BIK for any employee from 2007 up until April 2009.
> 
> .



You seen to have a contradiction here did they over pay the BIK or not pay it at all.  If your BIK was under declared then if they amend the P60 the overpayment in taxes would be reduced or may balance out.

Overpayment of tax PRSI Income Levy and USC can be dealt with by the Relevant department Revenue or Social Welfare you have 4 years generally to reclaim this.  Have you made claims with them.  

I find it hard to understand how you have clocked up 6k in legal fees and then you are told that you don't have a firm foundation for your case.

Are you covered by a Registered employment agreement? Or is it your contract rate is different to your actual rate.


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## eCubation (24 Mar 2014)

browtal said:


> Hi eCubation,
> if you e mail
> rmn@eircom.net and mention this site you should be able to get some help.
> 
> Browtal



OK, thanks... I'll do that.


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## eCubation (24 Mar 2014)

Joe_90 said:


> You seen to have a contradiction here did they over pay the BIK or not pay it at all.  If your BIK was under declared then if they amend the P60 the overpayment in taxes would be reduced or may balance out.
> 
> Overpayment of tax PRSI Income Levy and USC can be dealt with by the Relevant department Revenue or Social Welfare you have 4 years generally to reclaim this.  Have you made claims with them.
> 
> ...



Thanks Joe_90 for your comment and let me clarify the points you mention;


From 2007 until April 2011, they processed no BIK on behalf of me or any other emplyee (AFAIK) there at the time. From April 2011 onwards, BIK was processed through payroll. This has been raised with the Revenue so they are aware of this error that the company has made.I don't think I've been penalised for this error of there's but the Revenue couldn't give me confirmation that it didn't negatively affect me.
They incorrectly calculated my GROSS BIK liability since April 2011 to be more than it actually was i.e. my GROSS BIK has been over declared to the Revenue. My employer has been made aware of this yet they claim the VHI calculated the employee's GROSS BIK on their behalf, which is incorrect. I have confirmation of the NETT BIK amounts paid to VHI from the VHI.
Yes,  overpayment of PRSI can be dealt with by the PRSI Refund Section but it's the confirmation of the PRSI amount overpaid that I need verification of.
Yes, all tax related amounts such as Income Levy and USC is dealt with by the  Revenue and I have already been in contact with Revenue representatives but the problem arises when the employer won't give the correct amounts that should have been paid to me, to the Revenue.
 I also find unbelievable to understand how I have clocked up 6k in legal fees when any monies that I have obtained to date have been as a result of my efforts. The Solicitor I used charges 250 plus VAT per hour of consultation (of which I've had three face to face meetings with them) and then specific amounts for letters, emails etc.   They informed me at the last meeting that they've billed approximately 20 hours to date!? They never said that I don't have a firm foundation for my  case, they just repeat the fact that they're not accountants nor do they have an accountancy skillset and they have quoted me fee of €1,500 + vat for an employment law barrister and they have quoted me a professional fee of €2,000 + vat to represent me at the LRC Hearing. Before I ever employed any legal representative, I naively thought that if I obtained a legal representative who is an expert in employment law, that they'd be able to sort out my case for me, get me back the money I am owed and any associated expenses accrued etc.
I do have an employment contract if that's what you mean by a Registered employment agreement. It was a Sales role so my monthly Salary consisted of base pay plus variable monthly commission.

As it stands right now, I've informed the Solicitors that I do not want any further hours billed to my  file. 
I'm trying to get confirmation of all outstanding amounts owed to me and that's why I'm looking for some sort of payroll expert. 
I also intend to engage the Revenue, Office of the Director for Corporate  Enforcement, Data Protection Commission and see whether I can get the  Pensions Board to investigate the pension problems.

I really would appreciate anybody's thoughts, helpful insight or possible action I could take to help resolve this mess? I obviously know that I owe the Solicitors money regardless now and don't see how I can minimise that bill.


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## Joe_90 (24 Mar 2014)

Ok so back up the bus.

You had an employment agreement with your employer which stated that you were to be paid X per annum and then a commission based on sales with a specific method for calculation.  This is an undisputed fact.

I presume that you received you basic pay?

So the dispute is over the commission.  Have you accurate records of your sales per commission period?  Have these levels been disputed by your employer.


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## eCubation (24 Mar 2014)

Joe_90 said:


> Ok so back up the bus.
> 
> You had an employment agreement with your employer which stated that you were to be paid X per annum and then a commission based on sales with a specific method for calculation.  This is an undisputed fact.
> 
> ...



Yes, I had an employment contract with my employer which states my basic pay and on target commission and there's a specific calculation method for that calculation as the targets change. That is fact and I have it in writing.

Yes, the dispute is partly over certain calculated commissions for a specific period but also over pension underpayments, overpayments of BIK by me, overpayments of tax by me, underpayment of tax credits, overpayment of USC/Levies, overpayment of PRSI and therefore underpayment of NETT salary ....all this dating back to 2009.

Yes, I received my basic pay up to a point where I had an accident and was forced out of work. That's essentially when things started going wrong. There was an agreement in writing that I would receive my full commission for my sales up until 10 weeks after my accident, then 75% of my base pay only for two months thereafter, then 50% of base pay only for one month. A month after that my Income continuance policy kicked in. 


I have written records of all of the above.
I obtained a copy of the sales order panel for that period so I have accurate records of my sales per commission period.
These levels have been disputed by my employer.
I repaid all illness benefit received to my employer but they never made the Revenue aware of that. I did that subsequently which partly corrected the tax overpaid by me.
In addition to repaying my illness benefit to my employer, they also deducted the illness benefit directly from my pay and have not, as yet, made the Revenue aware of this but I have. However, the Revenue needs confirmation from my employer about this in order to correct my tax.
I understand it's not a clear cut situation but I have reference documentation to backup all the payroll problems experienced by me to date.


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## T McGibney (24 Mar 2014)

eCubation said:


> overpayments of BIK by me, overpayments of tax by me, underpayment of tax credits, overpayment of USC/Levies, overpayment of PRSI and therefore underpayment of NETT salary ....all this dating back to 2009.



Did you reclaim from Revenue a refund of these net overpayments, within the 4 years permitted for such claims?


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## eCubation (24 Mar 2014)

T McGibney said:


> Did you reclaim from Revenue a refund of these net overpayments, within the 4 years permitted for such claims?



Yea, I've been in constant contact with the Revenue over the past year and a half and they've been helpful but they can only act on what information is confirmed by my employer i.e. my employer hasn't provided the Revenue with much of the required confirmation on what amounts should have been paid in the relevant calendar years. This is part of the reason why my Revenue related payments (USC/Levy, PAYE etc) have been overpaid. Due to this fact, I'll be making a formal request under Section 6 of the Data Protection Act 1988 that all/any factually  incorrect personal information, held by the Revenue and my employer, be rectified and/or erased, where  appropriate.


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## Joe_90 (24 Mar 2014)

I think NERA would have been a much better starting point.  BIK on the years prior to 2009 will give rise to a PAYE/PRSI/Income Levy liability.


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## eCubation (24 Mar 2014)

Joe_90 said:


> I think NERA would have been a much better starting point.  BIK on the years prior to 2009 will give rise to a PAYE/PRSI/Income Levy liability.



Maybe it would have but can it be of any help now? The legal representatives were a complete and utter waste of time in  this case and I wish they had clarified the requirement for an  independent review of my calculations at the start. 

The BIK on the years prior to 2009 have not, as far as I can see, given rise to any PAYE/PRSI/Income Levy Liability. My employer blames the third party payroll company they used and since 2007 and are now on their third, payroll company, having previously fired the other two.

The Data Protection Commission and ODCE seem to be the most effective routes to take at this stage but only after I get confirmation on my payroll calculations. What's the best options to confirm my payroll calculations now?


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## Joe_90 (24 Mar 2014)

Had a much longer reply done but the WIFI on the train dropped when I went to post it.

Start with the BIK.  If its not on your P60 and should have been then you have a benefit that has not been taxed, to correct this you have to increase you income and therefore have more PAYE/PRSI/Income Levy but that is beside the point.

Start at the beginning.  You say that your gross pay is understated.  Well that's not really some thing that you need a payroll expert for, you sold X units and are due Y.

The total is Z and is due to you.  It will be paid in 2014 so will be subject to PAYE/PRSI/USC in 2014.  You can go back and allocate it to the relevant year yourself.

BIK:  The BIK on VHI is the amount of the premium paid plus the Tax relief at source.  You must have the payslips for these months on the basis that you know it was computed wrong.  I would have thought that if you have the payslips and the net premium paid that as part of your reallocation of the income over years can wash this out.

Now the illness benefit, Your employer paid you while you were out sick and the agreement was that you would reimburse them for the illness benefit that you received.  But they included the amount as a deduction from your net pay as if you were not giving it to them.  Were they under an obligation to pay sick pay is it in your contract, is it paid to all staff.  Given that they appear to be incapable of operating a payroll system it seems generous to pay it.

Having said all that I assume that you have recomputed the PAYE/PRSI/Income Levy and USC for each of years in question.  An over complication in my view.

Dealing with Revenue on a day-to-day basis I would have thought a letter from them to your employer would have moved this along without having to go to the LRC.


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## eCubation (24 Mar 2014)

Joe_90 said:


> Had a much longer reply done but the WIFI on the train dropped when I went to post it.
> 
> Start with the BIK.  If its not on your P60 and should have been then you have a benefit that has not been taxed, to correct this you have to increase you income and therefore have more PAYE/PRSI/Income Levy but that is beside the point.
> 
> ...



Thanks Joe_90 for the comprehensive response and I do feel your pain as regards WiFi dropping as it has happened to me on many an occasion too but I do appreciate your helpful input.

The BIK is not on any of my P60's prior to 2011. You are right that it should have been and I have re-calculated the BIK for each year since 2007. However, when I was reviewing the annual GROSS income from my P60's against my December payslip for each year, none of them match, apart from the year 2010. There could be a number of reasons for this but it confuses me!?

I have completed a financial review of each year back to and including 2009. I'm no accountant or financial expert so I definitely would appreciate another pair of eyes to review my calculations in addition to having an independent expert authority give their written viewpoint on this issue which I can subsequently send on to my employer and the Revenue.

The Revenue have confirmed to me that whatever backdated amount is owed to me will be subject to the relevant deductions there were in place at the time the correct payment should have been made i.e. I shouldn't be penalised for receiving backdated pay ...yet this is exactly what my employer has done.

BIK: I arrive at the GROSS BIK amount by using the VHI's confirmed NETT BIK amount paid on my behalf, dividing by 8 and multiplying by 10. 
I've confirmed on a call with the Revenue that; 


20% of my total Social Welfare income is deducted from my total tax credit allocation for each year.
20% of my GROSS Medical Insurance (GROSS BIK) is added to the balance of my tax credit for each year.
The BIK was only detailed on my payslips from April 2011 onwards but I have confirmed it to be incorrect.

Illness benefit: My employer basically received a double reimbursement of my illness benefit (my employer obtained more money in Illness benefit for 26 weeks than I received in illness benefit for the whole year in 2009) i.e. I reimbursed them my illness benefit yet they deducted it from me via the payroll system. This double deduction was never mentioned to the Revenue by my employer. 
My contract states that "_At the discretion of the Company you may continue to be paid your full remuneration (net of any social welfare benefit) during periods of inability to work due to illness or accident_". AFAIK, my employer had little or no HR procedures in place at the time so they were under no obligation to pay sick pay to me. They processed all the illness benefit through payroll, six weeks of which were tax free, so I'm not sure why they did this as they certainly aren't known for their generosity.

Yes, I have calculated the PAYE/PRSI/Income Levy and USC for each of years in question.

Yes, I would agree that a simple letter to the Revenue from employer would have moved this along yet the errors continue. I personally wish the Revenue would audit them. 

In summary, I have all my calculations of what I've overpaid and the NETT and GROSS amounts of what I'm owed along with supporting reference documentation. I think you're suggesting that I send those calculations to the Revenue... is my understanding correct? I understand how that my resolve existing errors with the payroll but I don't understand how that will help get me the money I'm owed i.e. as in Salary not received?


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## Bronte (25 Mar 2014)

eCubation said:


> Thanks Joe_90 for the comprehensive response


 
Now sure if you went with poster Browtal's expert, but if you didn't just so you know Joe 90 is an accountant, maybe you could hire him for a mutally agreed fee.  Cannot be that difficult for an accountant to figure out the calculations.


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## eCubation (25 Mar 2014)

Bronte said:


> Now sure if you went with poster Browtal's expert, but if you didn't just so you know Joe 90 is an accountant, maybe you could hire him for a mutally agreed fee.  Cannot be that difficult for an accountant to figure out the calculations.



Thanks Bronte. I have contacted a number of people including Browtal's expert and Joe_90. I agree that it shouldn't be difficult for an accountant to verify or correct my calculations, when I can provide all the supporting reference documentation but Joe_90 has been very helpful so far.

I appreciate everyone's help on this forum as it's amazing how much more reassured I feel after explaining my situation here compared to how I felt after my last meeting with my solicitor. A certified letter from a qualified expert will go a long way to progressing this issue.


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