PWD1633

The Adjudication Officer found that the complaint was not well founded.

The Facts

The Claimant was, at the material time, a night worker with Dunnes Stores. On 11th March 2015 the Claimant’s Trade Union notified the Respondent of Industrial Action in the form of a strike by its members to take place for a 24 hour period from Midnight on 1^stApril 2015 to Midnight on 2^ndApril 2015. The Claimant was a worker rostered on a weekly basis to work certain specific hours in furtherance of her contract of employment. She was rostered to commence work on the evening of the day before the strike and to work into the morning of the day of the strike. She was also rostered to commence work on the evening of the 2^ndApril (the day of the strike) and to work into the morning of 3^RDApril. Her rostered hours straddled midnight on the 1^stof April and midnight on 2^ndApril.

The Respondent approached the claimant on an individual basis sometime between 10.00pm and midnight on 1^stApril 2015 to ascertain whether the she would be participating in the notified strike and consequently leaving her post at midnight on 1^stApril. On establishing that the Claimant would be participating in the strike the Respondent advised her that she should not report for work at midnight on 2^ndApril on conclusion of the strike.

The Claimant did report for work on the conclusion of the strike at midnight on the 2^ndApril but the Respondent declined to allow her to work the remainder of the shift for which she had been rostered.

The Claimant was not paid for the period of her rostered shift which fell after midnight on 2^ndApril 2015 and neither was she permitted to work for that period. She states that she suffered a deduction in her wages as a result of €64.56. The quantum of her alleged loss / deduction was not disputed before the Court.

Position of the Respondent

The Respondent submits that wages were not ‘properly due’ to the claimant for the period from midnight on 2^ndApril 2015 to the end of her planned shift and as such no deduction of wages has taken place. The Act therefore has no application in the submitted view of the Respondent.

The Respondent submitted that the Claimant, as a result of her withdrawing her labour on 2^ndApril 2015, offered only partial performance of her contract of employment when she sought to commence work at midnight on 2^ndApril. The Respondent submitted that it informed the Claimant on the day before the strike that the company would not accept partial performance of her contract of employment on the day of the strike and when the claimant saw fit to breach her contract by refusing to work her rostered hours on the day of the strike and offered partial performance instead, the Respondent declined to accept that offer as it contends it was entitled to do under law. The Respondent contends consequently that the Claimant was not entitled to payment in respect of any partial performance that was offered by her and no wages were properly payable to her in that context and so the issue of deduction from wages does not arise.

The Respondent drew the Court’s attention to the Judgement of Smithwick P. in Maher v Allied Irish Banks plc [1998] 9 ELR 204 wherein the following statement of law, as articulated by the UK Court of Appeal in Wiluzinski v London Borough of Tower Hamlets [1989] ICR 493 was adopted

• The plaintiff's considered statement that he would not discharge this [material] part of his contractual duties was, in law, a repudiatory breach of his contract. Subject to any provision to the contrary in his contract of employment, such conduct entitled the council to treat the contract as terminated and to dismiss the plaintiff …. [H]owever, termination of the contract is not the only remedy available to an employer in such circumstances …. If an employee states that for the indefinite future he will not be performing a material part of his contractual services, the employer is entitled in response, and in advance of the services being undertaken, to decline to accept the proffered partial performance.

• ‘If an employee refuses to perform the full duties which can be required of him under his contract of service, the employer is entitled to refuse to accept any partial performance’

• ‘I agree that the plaintiff's action was rightly dismissed by the trial judge. It was rightly dismissed because in an action by an employee to recover his pay it must be proved or admitted that the employee worked or was willing to work in accordance with his contract of employment, or that such service as was given by the employee, if falling short of his contractual obligations, was accepted by the employer as a sufficient performance of his contract.’

The Respondent contended that the decision of Smithwick P. is authority for the proposition that wages were not properly due to the Claimant as the Respondent was not obliged to pay the Claimant for partial performance of her contract of employment.

The Respondent submitted in the alternative that the any deduction if such is found to have taken place was lawful under the act having regard to Section 5(5)(e) of the act which provides as follows:

• (e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action,

The Respondent confirmed to the Court at its hearing that it did not regard the Claimant’s contract of employment as having terminated as a result of her actions in withdrawing her labour in furtherance of an industrial dispute. The Respondent also confirmed that the claimant was not suspended or laid off at midnight on 2^ndApril 2015. The Respondent confirmed to the Court that the position / status of the claimant at that point in time was not specified or set out in her contract of employment. The Claimant’s contract of employment was not opened to the Court albeit the Respondent did confirm that it was prepared to make a copy of same available to the Court subsequent to its hearing. The Court declined this offer on the basis that the parties had been given and availed of full and adequate opportunity to make submissions to the Court in advance of the hearing of the Court.

Position of the Claimant

The Claimant contends that she presented herself for work at midnight on 2^ndApril and that the Respondent refused to allow her to work hours for which she had been rostered and that the failure to pay her wages for her rostered hours amounted to an unlawful deduction under the Act. The Claimant contended that the Respondent’s refusal to permit her to work from 12.00 midnight on the 2nd April amounted to a deduction from her wages within the meaning of the Act. She contended that such deduction was made in contravention of Section 5 of the Act in consequence of the fact that it was not authorised by any statute or any instrument made thereunder, was not consented to by the Claimant and nor was it addressed in any term of her contract of employment.

The Claimant contended that any assertion that a deduction could be effected lawfully in consequence of an omission of the Claimant could not stand in light of the fact that she did not receive the notification in writing required by Section 5(2)(iv) of the Act.

The Claimant addressed the issues raised in Maher v Allied Irish Banks plc [1998] 9 ELR 204 and contended that the case related to a common law claim for damages and was of limited value relevance to the within case.

The Claimant contended that the Judgements referred to by Smithwick P. in that case [Wiluzinski v London Borough of Tower Hamlets, Miles v Wakefield Metropolitan District Council, British telecommunications plc v Ticehurst and Another]and referred to by the Respondent were distinguishable on the facts from the within case insofar as they related to instances where the worker concerned was offering only to perform part of their duties as distinct from the position of the Claimant in the within case who at the disputed time was offering to perform all of her duties.

Discussion and Conclusions

The case before the Court is a claim that an unlawful deduction in the amount of €64.56 was made from the Claimant’s wages for the period of her shift which fell on the morning of 3^rdApril 2015. She contends that the Respondent made a deduction within the meaning of the Act and that such deduction was not provided for by the Act at Section 5. The Respondent contends that the Act at Section 5(6) provides in essence that a deduction can only be made from wages that are properly payable to the Claimant. The Respondent contends that as a result of the claimant offering only partial performance of her contract at midnight on 2^ndApril the Respondent was entitled not to accept that offer which it did and consequently no wages were properly payable to her in respect of that portion of her rostered shift which fell on the morning of 3^rdApril 2015.

The Act at Section 5 provides in part 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.

(a) any act or omission of the employee, or

• (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

  unless—

  • (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

    (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

    (iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

    • (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

      (II) in any other case, notice in writing of the existence and effect of the term,

• • (iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

    (v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

    (vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is ofan amount not exceeding the cost to the employer of the goods or services, and

    (vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

  (3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

  (b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

  (4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

• (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—

• (II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

• (ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

• (b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

  (c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941 , amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

  (d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

  • (i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

    (ii) to which the employee has otherwise given his prior consent in writing, and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

    (e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or

    (f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

    (g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

Section 5(6) of the Act provides as follows

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.

The Claimant, in consequence of her participation in official Industrial Action in the form of a strike on 2^ndApril, in effect withdrew her agreement to supply her labour from midnight on 1^stApril 2015 to midnight on 2^ndApril 2015. The practical implication of her action in this regard was that she failed to work at all in the final hours of her rostered shift on 1^stApril running into 2^ndApril and the first hour or hours of her rostered shift on 2^ndApril 2015 running into 3^rdApril 2015. She performed all of her duties during that portion of her 1^stApril shift which fell before midnight on 1^stApril. She performed none of her duties in that portion which fell after midnight on 1^stApril. She performed none of her duties for that portion of her rostered shift which fell before midnight on 2^ndApril and offered to perform all of her duties for that portion of her shift which fell after midnight on 2^ndApril.

The Respondent allowed the Claimant to work a part of her shift only on 1^stApril and paid her in full for that portion of her shift. The Respondent made no payment for any element of the Claimant’s rostered shifts which fell on 2^ndApril and that non-payment of wages is not in dispute. The Respondent did not allow the claimant to work the part of her 2^ndApril shift which fell on the morning of 3^rdApril and did not pay her at all for that portion of her shift.

The case of Maher v Allied Irish Banks plc and the cases referred to by Smithwick P. in that judgement related to individuals who presented themselves for work but who (a) while at work, were not or might not have been willing to carry out all of the duties assigned to them, or (b) offered themselves for the full performance of their duties at a particular time but indicated an intention to withdraw that offer at intervals in consequence of pursuit of industrial action in the future. Indeed, in referring to the case of Ticehurst & Thompson v British Telecommunications plc Smithwick P. noted as follows

• I also refer to the case of Ticehurst & Thompson v British Telecommunications plc [1992] IRLR 219. In that case the plaintiff was a building manager in charge of forty staff and took part in a half day strike which was to be followed by a rolling campaign of strikes. The defendants declined to accept this and warned that those who were not prepared to honour fully the terms of their contract and perform all the duties of their job would be deemed to be taking industrial action and could be sent home without further notice and without pay. The plaintiff in that case sued for the salary due to her and her claim was upheld in the Mayor's and City of London County Court on the grounds that she was ready and willing to work normally when she was not permitted to do so. The Court of Appeal allowed the appeal — she had not proved that she was ready and willing to perform her obligations under her contract of employment.

• In my view there exist two courses of action available to the defendant bank. One would be the operation of the suspension procedure, but the other which I think is open to them on the general principles of the cases I have referred to is that they have the option of ceasing to employ temporarily any employee who refuses to carry out his or her full duties. I therefore am of the view that in an industrial dispute such as this the defendant bank are not tied to the suspension procedures in the contract of service with its employees, and that these procedures are designed for a case of dishonesty or other misconduct by an employee, and that in the course of an industrial dispute the bank are not restricted to the procedures referred to in the contract of employment.

The Court notes that, in pursuance of the contract of employment, work in the within employment is offered to employees by the Respondent in weekly amounts in a roster provided by the Respondent on a weekly basis. Employees of the Respondent are in effect required to work the hours set out to them each week in the roster provided by the Respondent. The Court is being asked to find that the Respondent was entitled to refuse to accept what is contended to have been partial performance of the contract by the Claimant. No convincing submission has been made to the Court which would enable the Court to understand the distinction, if any, drawn by the Respondent between the performance by the Claimant of her contract on the shifts which overlapped with the 2^ndApril 2015 and the performance by her of the weekly roster provided to her by the Respondent which overlapped with the 2^ndApril 2015. Indeed the Court has been provided with no submission which would allow the Court to draw a distinction between the performance by the Claimant of her contract on the shifts which overlapped with the 2^ndApril 2015 and her performance of her contract for all succeeding time periods for which she is in the employment of the Respondent. In the absence of a clear distinction which would allow a reasonable separation of the Claimant’s partial performance of her shift from her partial performance of her weekly roster or from her partial performance of her general contractual obligation to work all shifts rostered for her the Court is invited by the Respondent to find that an employer is entitled at any time after a withdrawal by a worker of her labour in pursuit of industrial action or for any other reason, to refuse to accept any offer of work made by the worker on the grounds that at all times after the withdrawal of labour the worker is in a perpetual state of offering only partial performance of her contract. Indeed, in the absence of a clear and rational declaration that the concept of partial performance of the contract of employment arises only in respect of one shift as distinct from a roster, which in this employment is of a week’s duration, all of the persons involved in the industrial action on 2^ndApril could at minimum be contended to have offered only partial performance of the weekly roster which included the date of 2^ndApril and that the Respondent could have refused all offers of work made during the remainder of the roster at minimum.

This proposition is not, in the view of the Court, a reasonable application of the authorities proffered to the Court. In all of those cases the characterisation of the offer of work proffered by the worker was derived from either the worker’s unwillingness to perform all allocated duties while in attendance at work or the intended continuance at intervals of industrial action by the worker. In the within case there is no doubt that the Claimant was not willing to work at all on 2^ndApril 2015. Therefore the Claimant did not offer any performance of her contract on that day. At midnight on the 2^ndApril however she offered complete performance of her contract for all rostered hours thereafter.

The Court notes the comments of Smithwick P. in O’Donovan v Allied Irish Banks plc [1998] 9 ELR 209, as follows

• Regarding the first possibility, I have already held in Maher v AIB [1998] ELR 203 and must hold again in this case, I do not believe all the procedures designed to deal with a case of dishonesty, pilfering and the like, where suspension is likely to lead to discipline with very far-reaching results, should be applied in a case of an industrial dispute whatever may be the form, lock-out or failure to turn up for work, which are not intended to be permanent. These are weapons in the war of employer and employee. When it is over both parties go back to the position they were in before. So the very necessary safeguards that would have to be employed if it were the case Mr O'Donovan say were guilty of a form of fraud or serious breach of his duties, it would be necessary for self-protection in case like that that strict procedures be adhered to, but this sort of dispute is otherwise.

The Respondent confirmed that no suspension of the Claimant was in place at that time, she was not in a situation of lay off and neither was her contract of employment terminated. The Respondent confirmed to the Court that when the Claimant was not allowed to work her rostered hours from midnight on 2^ndApril onwards she was not in any position provided for by her contract of employment. She had been notified by the Respondent of a roster encompassing her working hours on the week in question which included the hours after midnight on 2^ndApril.

On the evening of 1^stApril sometime between 10.00pm and 12.00 midnight the Respondent indicated to the Claimant that she would not be permitted to work after midnight on 2^ndApril. No suspension of the Claimant was notified to her and neither was she notified that she was being placed on any form of leave provided for in her contract of employment. What happened was that with a maximum of two hours’ notice the Claimant was advised that her roster, which was the mechanism to advise her of contract performance, had no application after midnight on 2^ndApril until the end of the rostered shift which was due to commence on the evening of 2^ndApril.

The Court finds no basis to conclude that this cancellation of roster was valid and the Court must find that the wages of €64.56 which would normally be paid to the Claimant for the time involved in the period of her rostered shift which fell after midnight on 2^ndApril 2015 were properly payable to her. The failure to make payment of those wages to her was consequently a deduction within the meaning of the Act.

The Court has considered the Respondent’s contention that the Act at Section 5(5)(e) as quoted above permits the deduction by the Respondent of wages on account of the Claimant having taken part in the strike on 2^ndApril 2015. It is clear that the strike concluded at midnight on 2^ndApril 2015. The effect of the Respondent’s submission on this point is to contend that an employer is entitled to make a deduction from an employee’s wages in respect of working time falling after the conclusion of a strike. The Respondent does not set out to the Court any limiting consideration in making this submission. The Respondent has not submitted to the Court any operational or logistical barrier to the Claimant commencing work at midnight on 2^ndApril. In consequence the Court understand s the Respondent to contend that Section 5(5)(e) of the Act permits the making of deductions beyond the period during which the strike was in place and notwithstanding there being no continuing operational or logistical inhibition experienced by the Respondent in carrying out its’ business as a result of the strike.

The Court cannot accept that participation by a worker in a strike results in a situation whereby the Act permits the employer to make deductions from that worker’s wages thereafter at any time without restriction on account of the fact that the worker took part in a strike. The import of such a meaning to the Act would be neither rational nor reasonable.

In all of the circumstances therefore the Court finds that the claim of an unlawful deduction of €64.56 from the wages of the Claimant is made out.

Determination

The Court determines that the Respondent is in breach of the Act at Section 5 and that the Respondent should pay sum of €300 to the Claimant in compensation. The decision of the Adjudication Officer is set aside.

Signed on behalf of the Labour Court



Kevin Foley
CO'R______________________
6th October 2016Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.