PWD179

The Adjudication Officer, in a decision dated 13^thDecember 2016, decided that the complaint should fail.

The Case

The Respondent in this case is an employment agency providing staff on an agency basis to the healthcare industry. The Appellant is a Healthcare Assistant who, on 17^thJanuary 2016, had been placed by the Respondent with a client Hospital.

On that date an issue arose on the client site as regards the taking of a break by the Appellant. The client Hospital, subsequent to the incident as regards the taking of a break, advised the Respondent that the Appellant would no longer be required at that location.

The Respondent subsequently placed the Appellant on the site of another client and she worked there on a variety of days until, following interventions by the Respondent and her Trade Union, on 1^stApril 2016 she returned to a placement on the Hospital site where the incident of 17^thJanuary had occurred.

Position of the Appellant

The Appellant contends that she was in effect suspended from her employment without procedure on 17^thJanuary 2016. She maintains that she consequently suffered a deduction from her normal wages between that date and the end of her suspension on 1^stApril 2016, of €3,386. The Appellant contends that she was entitled to receive her ‘normal wages’ during her period of suspension and that any failure to pay her ‘normal wages’ to her constituted a breach of the Act at Section 5.

Position of the Respondent

The Respondent contended that the Appellant was paid for all hours worked by her throughout the period referred to in her complaint. The Respondent stated to the Court that the client Hospital on the site where the Appellant was located on 17^thJanuary 2016 advised the Respondent that it would not accept her assignment to that site after 17^thJanuary 2016. The Respondent contended to the Court that the Appellant was at no time suspended by the Respondent and supplied details to the Court of her consistent assignment to positons at the site of another client between 22^ndJanuary 2016 and 1^stApril 2016.

The Respondent contended that the arrangement under which the Appellant worked was that she would be assigned work whenever such was available and that she was free at all times to refuse work offered to her. The Respondent asserted that the Appellant had no guarantee of hours of work. The Respondent further contended that its client retained absolute control over who worked on their site. The Respondent asserted that it had no control over this matter but that it at all times sought to assign the Appellant to locations where work was available.

The Law

The primary issue before the Court in this case is whether the Appellant suffered a deduction from her wages within the meaning of the Act at section 5(6) and if so whether any such deduction as unlawful within the meaning of the Act at Section 5. The Act at section 5(6) 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.

Discussion and conclusions

It is common case that the Appellant in this case was at all material times in receipt of payment at appropriate rates for all hours that she worked. She contends however that between the period of 17^thJanuary 2016 and 1^stApril 2016 she was under suspension from her employment. She contends additionally that aspects of her experience represented contraventions of the Terms of Employment (Information) Act, 1994, the Protection of Employees (Temporary Agency Work) Act, 2012 and the requirements of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

The Court cannot consider matters that properly arise under other legislation as part of this appeal under the Act. The Court, in this appeal, must confine itself to a consideration of whether the circumstances outlined to the Court amount to a contravention of the Act.

The Court cannot accept that the Appellant was suspended from her employment during the period from 17^thJanuary 2016 to 1^stApril 2016. It is common case that the Respondent continued to consistently employ the Appellant at all material times and that reality is utterly inconsistent with a contention that the Appellant was suspended during that period.

The Appellant acknowledges that she received payment at all material times for all work which she carried out. She accepts that her working arrangements prior to and since 17^thJanuary 2016 did not include a guarantee of hours from the Respondent. Indeed she accepts that she was under no obligation to accept work from the Respondent when it was offered albeit she contends that she would have accepted any work offered to her in the period material to this complaint.

In all of the circumstances the Court must conclude that the wages properly payable to the Appellant at the material time were those wages which accrued from the work carried out by her in circumstances when the work was offered and the offer was accepted by the Appellant.

The Court finds that no deduction within the meaning of the Act at Section 5(6) took place affecting the wages of the Appellant during the material time and consequently that no complaint of a breach of the Act of Section 5 has been made out.

Determination

The Court finds that, no deduction having been made from the wages of the Appellant between 17^thJanuary 2016 and 1^stApril 2016, the within appeal must fail.

The Court accordingly affirms the decision of the Adjudication Officer.

The Court so determines.

Signed on behalf of the Labour Court




10th April 2017______________________
JKKevin Foley
Chairman


NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.