Complainant

Respondent

Anonymised Parties

An employee

A factory

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00010579-001

31/Mar/2017

The respondent reduced the wages of all employees by 10% in 2011. The complainant is claiming restoration of this deduction.

The Complainant has worked for the respondent company for many years. In 2011 the workforce were informed that their current salaries, wages, and piece rates were to be reduced by ten percent, in an attempt to address a serious financial difficulty facing the respondent. The complainant and others pursued a claim under the Payment of Wages Act 1991. Following an appeal the Employment Appeals Tribunal determined;

the Tribunal does not accept the appellant’s (The Respondent) contention that it could unilaterally deduct the wages of its employees. Such a deduction would be contrary to the wording of section 5 (1) (b) of the Act.   In this case the appellant did not advance its own case for a deduction as it opted not to fully engage with the respondents (the complainant and others) as to the reported serious financial situation it was facing at the relevant time.

Section 8.2 of the contract of employment states ; From time to time these terms and conditions of employment may need to be revised, to take account of new circumstances. Such revisions may be brought about by legislation, employee request, or management’s requirements, and will be discussed with employees as necessary. Section 5 (1) of the Act states: An employer shall not make a deduction from the wages of an employee unless- Section 5(c) reads in the case of a deduction, the employee has given his prior consent in writing to it. The above clearly means that an employer must receive the written explicit permission of its workforce to allow it to deduct its remuneration. In all of the circumstances of this case the Tribunal cannot accede to the appellant’s request that the Tribunal exercise its discretion not to award compensation.

The deduction continues to apply to the complainant who is seeking an award equivalent to the deduction.

Preliminary issues;

The respondent submits that the claim is statute barred being outside of the 6 month limitation period provided for in the Workplace Relations Act 2015 which states in Section 41(6)

Subject to subsection (8) an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the claim relates

The complainant stated in his submission

My current claim refers back to the period from the present date to unlawful deductions over six months from 30/09/2016

The complainant’s claim was filed on 31/03/2017 and is therefore either one or two days outside the time limit. The respondent refers to the Hight Court judgement in McDermott V HSE (2014) IEHC 331

In addition to the preliminary issue the respondent also contends that there is an obligation on the complainant to mitigate his loss and that the various wage increases offered to and declined by him should be considered. 

The substantive issue in this case regarding the question of the breach of the Payment of Wages Act has been settled previously and, in that regard, I accept the same circumstances apply in this instance as in the previous cases involving the respondent on that issue. Therefore the issues to be decided by me relate to;

1.       The time limit

2.       The obligation to mitigate losses and

3.       The amount, if any, to be paid to the Complainant

Time Limit issue

Paragraph 14 of High Court judgement in McDermott V HSE (2014) IEHC 331 (the judgement cited by the respondent) states;

Yet the relevant statutory language takes us somewhat further, because the key question is the ‘date of the contravention to which the complaint relates’.  In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention to which the complaint relates.

It seems to me therefore that for the objection raised by the respondent to be stand, it would have to be clear that the complainant was making a complaint in relation to a contravention outside of the six month period.

The complainant’s submission states

My current claim refers back to the period from the present date to unlawful deductions over six months from 30/09/2016

Therefore his complaint relates to the period of six months back from when he made the complaint i.e. six months back from 31 March 2017, which would be the beginning of October 2016 and would not include the day of 30 September 2016. However, the complaint is in time.

Mitigation

The respondent has argued that there is always an obligation on a complainant to mitigate his losses and, by refusing pay increases on offer since 2011, he has not done so. However, the pay increases offered since have been conditional on accepting changes in terms and conditions relating to the complainant’s employment which have not been acceptable to him.  I don’t accept therefore, that in declining such increases that he has failed in any obligation that might exist to mitigate his losses.

Amount owed

The respondent asked that the complainant provide detail of the calculations of the amount claimed.  However, the respondent, who has access to the wage records, did not provide evidence of an alternative amount.  I therefore accept that the figure put forward by the complainant of €1,024.4 is the amount of the deduction.

In accordance with Section 6 of the Payment of Wages Act, 1991 I find that the complaint is well founded and I order the respondent to pay the complainant the sum of €1,024.40

Payment of wages, unilateral reduction of salary