Complainant

Respondent

Anonymised Parties

Senior social care leader

Health and Social Care organization

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-00023412-001

21/11/2018

Background.

The complainant has been employed as a social care leader with the respondent since 2007. She earns €4387 per month.

Her complaint form states that the respondent unlawfully deducted €48,260.96, an amount equal to 11 months’ salary, on 01/01/2018.

She has been seeking payment of her wages from her employer since January 2018. The respondent has refused to pay.

She submitted her complaint to the WRC on 21/11/2018.

Preliminary Matter.

The complainant ‘s barrister advised that the claim for recovery of wages deducted from the complainant is confined to the period 21 May -21 November 2018 and for no previous periods. The complainant’s barrister states that the complaint is therefore in time and in support of his contention refers to the case of McDermott v HSE, IEHC 331. That complaint which was ultimately appealed to the High Court concerned a deduction which commenced in 2009, (a non- payment of a salary increases), yet that complainant did not lodge the complaint under the Payment of Wages Act, 1991 until June 2011 which was two years later and claimed for the period 1/1/11-30/6/11. His complaint was held to be in time. Hogan J allowed for rolling contraventions.

Substantive Case.

The complainant contends that an amount equal to 6 months’ salary (€4,378.36 gross and €3153 net per month) was unlawfully deducted for the period 21 May – 21 November 2018 while the complainant was medically unfit to work. Payment while on sick leave is comprehended by the definition of wages found in section 1 of the Act of 1991.

The complainant has been employed as a senior child care social worker with the respondent since   2007.

In 2016 a colleague lodged a complaint against the complainant. What followed was a lengthy investigation into this complaint which was ongoing at the time of the hearing.

The complainant was certified unfit to work by her doctor from 27 September 2017- 19 November 2018. Copies of certs submitted diagnose work place stress. However, she was certified fit on 17 October 2017 take part in an investigation into a complaint levelled against her by a colleague. While engaged with this investigative process, she worked in excess of her normal weekly hours each week on her response to the complaint and attended meetings with the Investigators.

The complainant believes she should have been put on administrative leave from the 17th October 2017 when she was certified fit to take part in the investigation by an occupational health provider. She makes this argument as the colleague who lodged a complaint against her made a complaint, as well, against another colleague, Mr S. The respondent exercised their discretion to place him on administrative leave and he is getting paid in full while participating in the investigation into the complaint. This paid, administrative leave was a facility which the respondent could have offered her. The complainant has been off salary completely since March 2018.

The complainant’s barrister refers to the High Court decision of Cleary and Ors v B & Q Ireland Limited, [2016] IEHC 119 which considered the matter of discretion when making deductions. This was a judicial review against the decision of the EAT to uphold the employer’s right to withhold a summer bonus from the B and Q employees due to a financial downturn. However, McDermott J, stated that while B&Q had wide discretion under the terms of the contract to withdraw the bonus scheme, superimposed on that was the obligation to excise such discretion reasonably even in circumstances where the contract, as in this case, expressly allowed for a withholding of the bonus. The Court did not accept that the terms of the scheme allowed B&Q to withhold the summer bonus, which had already been earned and was due.

The complainant in the instant case maintains that the respondent has an analogous discretion to maintain the complainant’s salary while on sick leave and/ or should have placed the complainant on administrative leave which is paid leave. The respondent should have exercised their discretion reasonably. She was obliged to participate in the investigation into the complaint against her.

Her salary was properly payable based on the employer’s contractual obligation to exercise discretion reasonably.

The complainant submitted a fitness to resume work on 21 November 2018.

The payment of disability benefit ended in November 2018.

This complaint is without prejudice to any and all complaints made in any High Court proceedings.

The complainant asks the adjudicator to uphold her complaint.

Preliminary Time Matter

The respondent stated that the claim was filed outside the six months’ time limit provided for within the legislation. Section 41 subsection (6) of the Workplace Relations Act, provides:

“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 complaint relates”

The complainant specifies January 2018 as the date on which payment should have been made in her claim form. In addition, the respondent submitted correspondence from the complainant’s solicitor to the respondent indicating that the complainant had been instructing her solicitor as far back as 20th December 2017 and therefore was in receipt of legal advices some 11 months prior to when the claim was actually lodged. The respondent referred to a letter from the complainant’s solicitor dated 19th February 2018, which, although for the most part addresses the ongoing investigation issues, particularises the issue of payment in the final paragraph and on that basis the respondent argue that the complainant had every opportunity to lodge a claim within the statutory time limit.

It is a matter for the complainant to provide ‘reasonable cause’ if seeking an extension to the statutory time limit. The respondent maintains that if the complainant was fit to engage in the internal investigation with the respondent, as certified by Occupational Health in November 2017, and in receipt of legal advices as far back as December 2017, there can be no reason why she was not in a position to file her claim on time at the Workplace Relations Commission.

Substantive matter

The respondent disputes the complaint in its entirety.

Without prejudice to the preliminary point, the claim as set out in the claim form and in the letter of 19th February 2018, suggests that the complainant is seeking payment for time spent responding to queries/ correspondence from the Independent Investigator appointed to conduct an investigation into complaints in which the complainant had been cited.

The complainant asserts that she should have been placed on administrative leave from October 2017, when she was certified fit to take part in the Investigation process.

On 27th September 2017, the complainant went out from work on certified sick leave until 19th November 2018.

Respondent’s position

The respondent’s facility is a Section 38 voluntary health and social care organisation and is publicly funded. It is regulated by the Health Information and Quality Authority (HIQA) and aligned to consolidated pay scales for the Health Sector.

The respondent is governed by the policies issued by the public body in relation to safeguarding.

A complaint was made against the complainant. In relation to the claim that the complainant should be paid for her time used in the provision of a written response to a complaint made against her, it is the respondent’s position that no policy or practice in this regard has ever been issued or utilised. The complainant is an employee of the respondent since 2007 and will absolutely be aware of the policies issued by the funder governing complaints, most particularly ‘Trust in Care’ Policy for employers on Upholding the Dignity and Welfare of Patient/Clients and the Procedure for Managing Allegations of Abuse against Staff Members, and ‘Safeguarding Vulnerable Persons at Risk of Abuse; National Policy & Procedures.

Both documents contain comprehensive guidance for employers and employees in relation to complaints of any nature. Neither provide for payment for a staff member providing a response/responses to a complaint against them.

Administrative Leave is addressed in the Trust In Care policy, and states

“At an appropriate stage in the process, management should take whatever protective measures are necessary to ensure that no patient/client or staff member is exposed to unacceptable risk. These protective measures are not disciplinary measures and may include:

Providing an appropriate level of supervision

•             Putting the staff member off duty with pay pending the outcome of investigation.”

The views of the staff member should be taken into consideration when determining the appropriate protective measures to take in the circumstances but the final decision rests with management.

Putting the staff member off duty pending the outcome of the investigation should be reserved for only the most exceptional of circumstances.”

The very clear direction in the foregoing extract, i.e. that it is a matter for management as to whether a staff member is put on paid leave (administrative leave) demonstrates that the request that she be placed on administrative leave is without merit. A decision about protective steps necessary in the event of a complaint is a matter for management and the policy leaves no opportunity for misunderstanding or misinterpretation in that regard. Mr. S who was placed on administrative leave was not, unlike the complainant, on sick leave at the time.

Notwithstanding that position however, the respondent maintains that the claim for full pay on administrative leave is moot more particularly given that the complainant was on sick leave from September 2017.A copy of the Public Sector Sick Pay Policy indicates that the Claimant was paid in line with this policy.   Details of the complainant’s entitlement in this regard were set out in two letters furnished to her, on 12th January 2018 and 15th March 2018.

The respondent objected to calling on Mr S to give evidence as a witness as it could expose some sensitive matters concerning vulnerable clients. The circumstances in the view of management warranted his placement on administrative leave. The investigation is ongoing.

The complainant did not apply to be placed on administrative leave. Neither did her solicitor ask that she be placed on administrative leave.

Conclusion

In conclusion, the respondent asks that the adjudicator finds that the complainant in this case was not entitled to any salary payment other than what she received as per company policy.

Preliminary Time Matter

Section 6(4) of the Payment of Wages Act, 1991 requires a complainant to submit a complaint within 6 months of “thedate of the contravention to which the complaint relates”. What exactly the “date of contravention to which the complaint relates” means was considered in the High Court decision of McDermott v HSE, 2014, IEHC 331. The HSE argued that the complaint was time-barred because the cause of action emanated from a decision of the then Minister for Health and Children in June 2009 not to sanction the salary increase which had been provided for in that complainant’s contract. Two years later, in June 2011, the complainant referred a complaint under the Payment of Wages Act, 1991 to a Rights Commissioner. However, the deduction complained of related to the period 1 January – 30 June 2011. The “date of the contravention to which the complaint relates” was at issue in the case. Justice Hogan observed

“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…….. everything turns, accordingly, on the manner in which the complaint is framed by the employee.

“If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time “.

He further noted that if the complaint were to have been framed in a different manner e.g. related to the period from January 2010 onwards then it would have been out of time. Hogan J also noted that a rolling time limit was not unusual in the law.

In the instant case, the complainant identified January 2018 on the complaint form as the date on which the deduction occurred. The complainant’s barrister clarified at the hearing that the period for which she was claiming that an unlawful deduction occurred was the period 21 May to 21 November 2018. Her complaint was lodged with the WRC on 21 November 2018.

The WRC complaint form is not a statutory form. On the basis of the findings of Hogan J in McDermott v HSE, I find the that I have jurisdiction to hear the complaint.

Substantive matter.

The question for determination is whether the respondent in discontinuing payment of salary to the complainant while on sick leave or failing to place the complainant on paid, administrative leave contravened the provisions of the Act of 1991. The complainant argues that the respondent had discretion to award her sick pay given that she was engaged with the respondent’s formal investigative process. The withholding of her salary has infringed section 5(1)(2)(ii) which prohibits a deduction unless the

“deduction is of an amount that is fair and reasonable having regard to all the circumstances”.

Section   5 (6) of the Act of 1991 goes on to identify a deduction as follows:

“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) [….]

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”.

Were the wages properly payable?

In order for the complainant to succeed in a complaint that the employer has unlawfully deducted her wages, she must demonstrate that the sum withheld from her was “properly payable” -that she had a contractual entitlement or an entitlement on some other basis to six months’ salary for the period 21 May – 21 November 2018.

The complainant accepted the policies governing payment of salary while on sick leave and administrative leave in her contract of employment.

This is a complaint taken under the Payment of Wages Act, 1991 but a significant element of the complainant’s case is that the complainant has been placed on the wrong type of leave – sick leave- rather than the correct leave which is paid, administrative leave. While the consequences of this alleged misplacement are to deny her payment of wages, the starting point is the maintenance of the complainant on sick leave. I accept that discretion lies with the management as to the placement of a person on administrative leave. I understand that different concerns warranted the placement of Mr S. on administrative leave. The complainant was on sick leave on 17 October 2017. I do not find that an employer can ignore the advice of the medical advisor that an employee is unfit to return to work and that contrary to that advice, summon her to return to work and after a process consider her placement on administrative leave. Whether the complainant is, or is not, fit to return to work is a medical matter outside of the ambit of the respondent.

The complainant does not argue that the respondent failed to apply the terms of the sick leave scheme. Instead the complainant argues that the respondent had discretion to go beyond the terms and maintain her on salary even though she had reached the limits provided for under the scheme of sick leave for the health sector. She equates this discretion with the discretion identified in High Court decision of Cleary and Ors v B & Q Ireland Limited, [2016] IEHC 119 which identified an employer’s obligation to exercise discretion reasonably. However, the circumstances of the instant case differ form those found in Cleary where McDermott J. stated

“The discretion to withdraw the bonus scheme at any time, in my view, was always intended to apply in futuro and attached to the conferring of bonuses, as yet unaccrued, under the terms of the scheme. The payment of the bonus crystallised as a contractual obligation once it was “earned” in accordance with the terms of the scheme as operated.”

Their contract provided for a bonus albeit subject to the employer’s discretion. The period for which the bonus was due had passed. The sick leave scheme in the instant case and governing the complainant’s employment does not offer an equivalent option to extend except in very particular circumstances (Critical Illness Protocol) which is not applicable in the instant case.

In addition, the complainants in Cleary had enjoyed bonuses up to that point and so had a legitimate expectation that they would continue. This is different to the instant case where an employee’s entitlement to paid sick leave is strictly governed by the scheme for the health sector. By 12 January 2018 the complainant’s payment for sick leave had reached 532 hours which was in excess of her entitlement to 512.96 hours of sick pay in a rolling one-year period. By 27 March 2018 the complainant had exhausted her entitlement to payment at half pay for a further 481.85 hours in a rolling one-year period. No instances of these limits ever having been exceeded were presented to the hearing.

I do not find that the complainant had a contractual entitlement to be paid salary when she had exhausted her sick leave entitlement. I do not find that the scheme for administrative leave generated an entitlement to same. On the evidence presented I do not find an entitlement to payment of salary for the period 21 May – 21 November could exist on any other grounds. I do not find that the salary for the said period was properly payable.

I have been asked to examine this complaint under the Act of 1991.Whatever about this complaint being amenable to an industrial relations process, I do not find that there was an unlawful deduction contrary to section 5 of the Act of 1991.

I do not find this complaint to be well founded

Payment of Wages. Entitlement to sick leave when sick leave entitlements are exhausted.