ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017138
Parties:
| Complainant | Respondent |
Anonymised Parties | Hotel Housekeeper | Hotel |
Representatives | Orazio Grosso Grosso & Maldonado Solicitors, Enrico Angeletti (Interpreter) | Ananta Kaur Ibec , Barbara Burke, Paul Prior |
Complaint:
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-00022222-001 | 28/09/2018 |
Date of Adjudication Hearing: 06/12/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is employed as a Housekeeper since 20th May 2016. She is paid 10.50 per hour and worked an average of 40 hours per week. She suffered an injury at work on March 1st 2017. She is claiming for unpaid wages while she was absent from work due to this injury. |
Summary of Complainant’s Case:
The Complainant stated that she injured herself at work on March 1st 2017. She has been unable to return to work and has not been paid. She initially continued to work but went absent 4th July to 9th September 2017. She returned to work 4 hours instead of 8 initially. On 22nd October the Respondent required her to work 6 hours per day. And on 12th November they required her to work her normal 8-hour day. On 26th November she went out sick and has been absent since as she is unable to perform her job. The company doctor ruled her fit to return to work. Her own Orthopaedic Surgeon ruled her available to job share or change jobs. She was given office work for a short period, but the Respondent will not give her an office job on a permanent basis. She was by then living in Italy and was willing to attend the company doctor provide that the Respondent paid her travel and accommodation costs. She has not been paid since November 2017. She is seeking payment of wages as per the contractual obligation. She is claiming unpaid wages since 26th November 2017 to 28th September 2018 at the rate of €450 per week. |
Summary of Respondent’s Case:
On March 1st 2017 she sustained an injury to her ankle whilst performing her duties. She was on certified leave from 14th July to 7th September 2017. She received a discretionary payment for this period. She was advised in writing on 13th July and 25th August that this payment would not be extended any further. The Respondent wrote to her on 18th April 2018 advising that they were willing to pay medical costs incurred for the assistance received on 20th September 2017. They also offered to cover travel expenses for attending the company doctor. They did not receive any travel expenses claim. She was last paid on 7th December 2017 as she was not entitled to contractual sick pay as the company do not operate a sick pay scheme. On 26th July 2018 the Respondent received a letter from her solicitor advising that as she was not paid since November 2017, she would not be attending the company doctor as she was unable to afford the costs of travel from Italy as she was living there. Her solicitor requested flights and accommodation to be provided by the company in order to attend the company doctor. Her solicitor further wrote on 22nd August stating that it was unacceptable that they had failed to pay her for the last 10 months and so failed to comply with her contract of employment. The Respondent replied on 13th September 2018 that she had no contractual entitlement to sick pay. They summarised the discretionary payment made to date, which was equivalent to about 9 weeks’ pay. The last correspondence received from her solicitor was on 19th September 2018 requesting payment in full or else a claim would be made to the Workplace Relations Commission. It is the Respondent’s position that the monies claimed are not payable under her contract of employment. This claim under the Payment of Wages Act is refuted as there has been no unlawful deduction of wages. Wages must be properly payable in order to be paid. This is not the case in this claim. They cited case law in support: Alun Evans v BNY Mellon, Coral Leisure Longford v Stipala and HSE v Marco Di Marzio. This claim is without merit and is rejected. |
Findings and Conclusions:
I find that in order to succeed with a claim under the Payment of Wages Act the complainant must have a contractual entitlement to the monies claimed. I find that her contract of employment does not provide for sick pay. Therefore she does not have a contractual entitlement to the monies claimed. I find also that the Respondent company does not have a sick pay scheme. Therefore, I find that the Complainant is being treated the same as all other employees of this company. I find that any monies paid, which was approximately 9 weeks wages were done so on a discretionary bais. I find that the monies claimed were not wages properly payable. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Complainant has not a contractual entitlement to the wages claimed.
I have decided that the wages claimed were not properly payable within the meaning of wages under this Act.
I have decided that no unlawful deductions were made.
I have decided that this complaint is not well founded and so it fails.
Dated: January 17th 2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Contractual entitlement to wages claimed |