ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003214

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 07/09/2016

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). 

Complainant’s Submission and Presentation:

The complainant was advised by the respondent in May 2014 that they wished to buy out their portion of her salary.

In June 2014 the respondent agreed to continue to pay that portion of her salary pending negotiations.

In October 2015 the respondent ceased payment of that portion of the complainant’s salary even though negotiations were ongoing.

This decision constitutes a breach of the Payment of Wages Act, 1991, and the complainant is seeking all payments due to her as per her contract of employment.

Respondent’s Submission and Presentation:

In 2014 the school was facing financial difficulties and a recovery plan was drawn up. Amongst the options was partial redundancy or a buy out.

Negotiations were commenced with staff and agreement reached with some of the staff on a buy out formula. The complainant and some other staff did not agree and their payments continued.

The dispute with these staff was referred to the WRC conciliation service. The payment in dispute ceased being paid in October 2015.

Arising from the conciliation process a set of proposals emerged in late January 2016 which were voted on by the staff concerned and accepted. This consisted of an improved buy out formula and the restoration of payments for October and November 2015.

This settlement is still available to the complainant.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Issues for Decision:

Did the respondent make deductions from the complainant’s wages that were in breach of the legislation governing same?

Legislation involved and requirements of legislation:

Section 5 of the Payment of Wages Act, 1991, states:

1. An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –

1. the deduction (or payment)is requiredauthorised to be made by virtue of any statute or instrument made under statute,

2. the deduction (or payment) is required or authorised to be made by virtue of a term of an employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

3. in the case of a deduction, the employee has given their prior consent in writing to it.

Decision:

I have carefully examined the submissions and evidence before me. This dispute was processed through the industrial relations procedures and was the subject of a conciliation conference under the auspices of the Workplace Relations Commission in late January 2016. The evidence was that the complainant fully participated in this process. This resulted in a proposal emerging which was the subject of a ballot of the staff concerned and which was accepted. This collective agreement, of which the complainant was part, included the contractual change. Amongst the elements of that proposal was a buy out formula based on the Haddington Road Agreement and reinstatement of the payments in dispute for the period October 2015 to January 2016 inclusive.

Following this the complainant indicated that she objected to the settlement. She did, however, receive the reinstatement payment for October and November 2015. The complainant argued, inter alia, that there was confusion as regards the amount due to her under the terms of the settlement.

The dispute before me, however, is in relation to a breach of Section 5 of the Payment of Wages Act, 1991. In that regard I find that the respondent was in breach of the Act insofar as at the time of the reduction in wages in September 2015 it was not authorised by a term of the complainant’s contract of employment and that that situation remained until the acceptance of the WRC proposals of late January 2016. I therefore find the complaint to be well founded. I note that two month’s payment for October and November 2015 has already been paid. I therefore order the respondent to pay the complainant €1,292.40 as compensation for a further two month’s deduction.

Although it is outside the terms of reference of this complaint I would ask both parties to note that any dispute in relation to the application or calculation of money due under the WRC buy-out proposal can and should be processed through the industrial relations procedures.

Dated:   3^rd November 2016