Complainant

Respondent

Anonymised Parties

A Receptionist

A Medical Business

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-00030573-001

30/08/2019

This case concerns an alleged deduction in wages through suspension in March 2019. The claim is strongly contested by the Respondent, who submitted that a requirement to undertake specific training was frustrated by the complainant warranted her temporarily removal from the roster.

Both parties made written submissions. On Inquiry, I found gaps in both parties reported sequence of events and requested clarity in the documentation submitted. The Union clarified the appendices as requested and sent in some supplementary emails which were not canvassed by me. The Respondent was requested to submit any documentation sent to the complainant between 4 and 16 March 2019 which referred to her suspension. I received this documentation 2 weeks after the hearing.

My decision is based on the written submissions, evidence at hearing and the requested documentation post hearing. All parties have now received copies of the documentation received.

The Complainant has worked as a Part time Receptionist with the Respondent Out of Hours Medical business since January 2014. Through her union, she is seeking payment of €727.60 in respect of unpaid wages which related to a period of suspension.

The Union outlined that the complainant had been suspended from work from 16 March -24 March 2019. The Union contended that this served as a contravention of Section 5 of the Act and constituted a breach of contract. The Complainant had not agreed to the deduction.

This case involves the training objective of Basic Life Support Training which is subject to two yearly updates. The Complainants training status was due to expire in March 2019.

The Respondent issued an email on 31 January 2019 seeking staff confirmation of attendance at Basic Life Support training on February 18 at 10 am. The email contained a rider “Non-Attendance will result in removal from the rota “

The Complainant responded and indicated that she would be unable to attend training outside her rostered hours. 18.00-23.00hrs Monday to Friday and 08.00- 23.00hrs Saturday/Sunday. She recorded that she had attended a manual handling session between 6 pm and 8 pm.

The Respondent filed a response dated 15 February 2019. The Complainant was offered a renewed date of 7 March 2019 between 6 pm and 8pm.

The Union outlined that the Respondent requested the complainant to undertake training in a neighbouring county. The complainant did not like driving in the dark and viewed this request as unfair and unnecessary as she could secure the training locally.

The Union contended that the complainant was not heard on her protestations. She contacted the Course Facilitator who gave her to understand that the course would be available nearer home. The complainant was then dissuaded from that course as being unsuitable. The Union submitted that the complainant was being punished. The Complainant offered alternative dates during February and March 2019.

The Complainant was ill during the period of 5 to 13 March 2019 and eventually undertook the training on 21 March 2019. She has yet to be re-imbursed the €70 for this training.

On the Complainants return to work post sick leave on 16 June 2019, she was prohibited from assuming her role. She was informed that she had been suspended due to her failure to comply with stated training objectives. The complainant was highly embarrassed by her exclusion. She undertook the training on March 21 and following the intervention of her Union resumed her normal work from March 26 onwards.

The Complainant had also experienced other staff relations difficulties at the company and had recently received notification that a written warning directed towards her had been wrongly applied and had been withdrawn by the Labour Court. LCR 22140.

The Union argued that the unilateral deduction in wages during suspension was not covered by objective justification and the respondent had acted in retribution against the complainant. The suspension was flawed, and the complainant was entitled to receive her lost wages and compensation.

The Respondent operates an out of hours medical service in service level agreement with a Public Body. This SLA provides that staff are to be properly trained with updates. The service has significantly increased in scope since its inception in 2002.

The Respondent disputes the claim as presented.

The Complainant is employed as a Receptionist and she is the first point of contact for attendees. This requires her to be suitably equipped and trained to deal with members of the public.

The Complainant currently works 9 hours a week over a 6-week roster.

The Respondent has a requirement that staff engage in ongoing training in

1 Basic Life Support / Heart Saving Training

3 Children First

4 Manual Handling

This is enabled through the contract of employment with the complainant, the service level agreement with the Public Body and Insurers requirements.

Heart Saver Training is mandatory and has two yearly updates. The Respondent placed the complainant on notice of the necessity of completing Heart Saver training in January 2018. Dates of courses were provided but the training was not undertaken. This action was repeated in early 2019. This time, the complainant was informed that failure to attend Heart Saver Training would result in her being removed from the roster. It was necessary to remove the complainant from the roster in respect of 16 and 17 March 2019 as the training has not been completed.

The Respondent submitted a letter dated March 5, 2019. This placed the complainant on notice that her non-attendance at the public training course on 7 March 2019 would lead to her removal from the rota from 8 March 2019. The Respondent understood that the complainant agreed to undertake the training on March 7.

At hearing, the Respondent referred to a letter dated March 14, 2019 which confirmed that the complainant was to be removed from the roster as a direct consequence of her vacuum in Heart saving training. The Respondent was troubled by this vacuum and referred to high risk clinical presentations at the clinic which warranted medical intervention.

The Respondent submitted that they were left with no choice outside the action of temporary removal from roster considering the complainant’s failure to honour her undertaking to complete the training.

The Respondent contended that the deduction in pay was warranted and justified by the contractual term of

“All staff will receive the necessary training to enable them to fulfil their duties ……. Certain training may be required to ensure you are fully skilled to fulfil your duties “

And did not at anytime constitute an illegal deduction in wages.

The Complainant was not rostered to work on March 24 and the respondent had no liability in that regard.

The Respondent contended that the complainant had no entitlement to be paid for dates on which it was necessary to remove the complainant from the work roster by her not having completed Heart Saver training.

The Respondent was adamant that the complainant had not been punished.

The Respondent detailed the sequential steps taken by the respondent in seeking to resolve this issue locally and submitted phone records in respect of a telephone conversation between the respondent and the Union.

I have carefully considered the claim advanced by the Union in this case. It was clear from the outset that the parties are seeking to co-exist in a very tense atmosphere and that strain was evident from both sides.

The Union sought to expand on this detail outside the parameters of Section 5 of the Act and on several occasions, I had to re-affirm that my role in the case as delegated by the Director General was to decide on the claim at the heart of the case. An alleged deduction of a composite sum of €727.66 as outlined on the complaint form. The matter of the back drop of a Labour Court Decision was not wholly relevant to the facts of the case. This case was solely related to payment of wages.

The Respondent, on the other hand presented inter party correspondence involving several Union Officials during March 2019. This took the form of a statement of submitted breaches in a myriad of Laws in addition to several personalised attacks on the respondent Human Resource Manager.

Surprisingly, the Union indicated that a full investigation was warranted and would be accompanied by a request for a general meeting of union members to highlight issues and to prepare a report for the Respondent Board and the Funder of the Service.

I did not identify any through put on this stated objective and the continued inter party correspondence did not resolve the matter. The Complainant was absent from work through sick leave 5 to 13 March 2019 as depicted on her Medical Certificate submitted at hearing.

Given her undertaking furnished on March 4 at 12.40hrs that she intended to travel to undertake the BLS training on March 7, I found it regrettable that this plan was undermined by sick leave.

I was slightly intrigued by the Respondent letter dated March 5. It seemed to be a cross over in correspondence as it did not address the complainants clearly flagged intention to travel to undertake the course on March 7. The Union received this letter and di not make any further submissions on it.

I am satisfied, following inquiry that this was the last letter issue by the Respondent prior to the removal of the complainant from her roster on March 16 and 17. The Respondent has not demonstrated what weighting, if any they gave to the complainant’s absence through sick leave as a reason for her non-attendance at BLS training.

The Respondent di not issue a letter of notification of suspension. The sole letter relied on by the Respondent rested on the document dated 19 March, which did not reference the earlier letter dated March 5. Instead, it addressed the organisations disappointment that the complainant attended for work without completion of the BLS training on March 16 and she was advised that a repeat of her behaviour would result in Disciplinary action.

It concluded with the final lines of:

“Please note that you are not permitted to return to rostering duties until the appropriate training is completed by you and the appropriate certification provided to me “

The Complainant completed the training and returned to work on March 26, 2019. This claim comes before the WRC by way of complaint dated 30 August 2019.

Wages are the product of a working week and payment of wages is enshrined in Irish Legislation by way of the Payment of Wages Act, 1991.

Section 5 outlines the regulations and provisions regarding deductions in these payments.

Regulation of certain deductions made, and payments received by employers.

5

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 any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by 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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(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,

and

(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 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 because 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 of an 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).

(5) Nothing in this section applies to—

( 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—

(I) any overpayment of wages, or

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

made (for any reason) by the employer to the employee, and

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

or

(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 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 2001 (as amended by the Local Government Reform Act 2014) ], 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.

(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.

A careful examination of the contract in this case shows that it is unsigned and undated . It does, however have a clause on Lay Off. However, this was not actioned on March 16, the date of the first non-payment of wages.

In this case, I found an over reliance on email communication and a complete lack of recourse to real time dialogue, which may have assisted the parties in conflict resolution. Email communication is a partisan approach to communication and cannot be viewed as an adequate and veritable substitute for talking things out in real time. The emails in the case may have unwittingly enabled polarised viewpoints top co-exist where both parties were strengthened in their resolve that they were correct in their stance, yet on the day of the hearing, I observed an extreme fragility in the employment relationship on show. Trust has been eroded for both parties and that is regrettable.

I fully accept the presiding submission of the Respondent; the training was compulsory and had to be undertaken in a tight time frame.

The Complainant gave mixed messages of her intention to attend the training. An undertaking to attend was followed swiftly by unavailability through illness. The Complainant then returned to work on March 16 intent on resuming her role, apparently oblivious to her removal from the roster.

I could not detect if she had rung ahead before resuming work as all parties seemed to have reeled in response to her unanticipated attendance. The Respondent was shocked as replacement had been booked in response to the vacuum in her training. The Complainant submits that she had no idea that she was prevented from coming to work as she was not on formal notification of her suspension.

For my part, I found fault on both sides here. While I reviewed the “absence from work “section of the contract, I could not identify a communication protocol for returning to work post sick leave. I would have expected the complainant to have made a connection with her managers prior to her commencement back. I can appreciate that she felt rejected by her treatment here, however, prior notice of her return may have caused this issue to be discussed and resolved in real time.

Section 5(1) of the Act prohibits a deduction in pay outside an authorisation by statute, contractual term in force at the time of deduction or a prior consent submitted in writing.

Section 5(2) of the Act prohibits a deduction in wages in respect of an act /omission by an employee save by contract, prior notice of one week with a declaration of amount to be deducted.

The Complainant was not actively involved in a Disciplinary procedure in relation to this issue. Her reticence to attend the training placed her in direct collision with her employer which had not resolved prior to March 16.

The Union has quoted Mc Kenzie in their submissions, but this case addressed “allowable expenses” and has been joined in jurisprudence by the Labour Court Decision on unauthorised deduction in Anish Boffin Community Service Programme V Brenda Burke PWD 14/2016.

The Facts of the case surround a projected temporal limitation to a €1.00 pay increase

The amount properly payable to the complainant by way of wages at the material time is to be assessed by reference to her contract of employment ….

The Court accepts, on the evidence, that the complainant’s contract of employment, as amended by verbal agreement, did not contain a term allowing the Respondent to unilaterally reduce her pay to pre-2013 levels

The Court went on to hold that the €1.00 per hour increase was not time limited and the reduction in pay was recognised as an “unauthorised deduction “in pay.

The Respondent withdrew the complainant from the roster over two days 16 and 17 March 2019. I accept that the complainant was not rostered on March 24 and she returned to work proper on March 26.

This is the action that I am required to probe. I could not identify any statute, contractual term or recorded consent so as permit this deduction. I accept that the respondent was at pains to ascertain the complainants stated intention to attend the training, previously undertaken in 2015. This had turned to an exasperation by March 16. However, the Respondent was not permitted to make a deduction in pay under Section 5(1) of the Act.

The High Court in Bank of Ireland and James Reilly {2015] IEHC 241 provides salutary instruction on Suspension in an employment relationship. I cannot establish just why the Respondent chose to by pass their own disciplinary procedures to impose a suspension. In addition, I could not establish why the complainant’s dissatisfaction was not channelled through the company grievance procedure.

I have considered the deduction in wages under Section 5(2) of the Act.

I went on to consider whether the complainants act, or omission permitted the Respondent to action a deduction in her wages in respect of her nonattendance at training. In this I am guided by Ryan air ltd V Alan Downey [2006]17 ELR 347, a case involving an Aircraft Training arrangement.

Once again, in the instant case, there was no contractual term to underpin this deduction. I could not in the face of pre-existing company procedures view the deduction as fair or reasonable in the circumstances. To me it constituted an arbitrary action and had not been accompanied by a projected quantification of the deduction one week in advance.

I appreciate that a deep sub plot of poor staff relations existed in parallel to these circumstances.

Not withstanding that the complainant did present cause to challenge the respondent and allowing for the good faith of the respondent in seeking to retain a high-quality skills base, I have found that the respondent was overly precipitous in having recourse to an arbitrary action in removing the complainants pay on March 16 and 17. I find that the Respondent cannot rely on the exclusion clauses in Section 5 of the Act. The deduction was unauthorised and constituted a breach of Section 5.

I have found the complaint to be partly well founded.

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.

Section 6 of the Payment of Wages Act, 1991 requires me to make decision in relation to this complaint in accordance with Section 5 of the Act.

I have found the complaint to be partly well founded. I order the Respondent to pay the complainant €300.00 in compensation as being reasonable in the circumstances. This amount is subject to normal statutory deductions.

I would also like the parties to sit down with each other to discuss how best to improve the working relationship going forward. Both parties have been very hurt by the written exchanges in the case and a certain amount of regeneration is needed in both parties’ best interests in this very important niche service to the community.

Deduction in Wages