PWD2031

1.An appeal of an Adjudication Officer's Decision No. ADJ-00017446.

BACKGROUND:

2.The Respondent appealed the Adjudication Officer's Decision to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991 on the 2 January 2020. A Labour Court hearing took place on 16 October 2020. The following is the Determination of the Court:


DETERMINATION:

This is an appeal by Tusla against an Adjudication Officer’s Decision given under the Payment of Wages Act 1991(the Act) in a claim by Rita O’Neill that she suffered an unlawful deduction from her wages. The Adjudication Officer found in favour of the Complainant and made an award of €6,461.

The within complaint was received by the Workplace Relations Commission on 10^thOctober 2018 and therefore, having regard to the provisions of the Act, the cognisable period for the complaint is 11^thApril 2018 to the 10^thOctober 2018.

In this Determination, the parties are referred to as they were at first instance. Hence, Tusla is referred to as the Respondent and Rita O’Neill as the Complainant.

Summary Position of the Respondent

It is the Complainant’s case that the implementation of a grade review which was advised to her on 12^thFebruary 2018 resulted in her not being paid the wages properly due to her during the cognisable period for the within complaint. She contended that a delay in completion of the review caused her to be paid less than the wages properly payable to her in 2016, 2017 and 2018. She also contends that the Respondent incorrectly applied the terms of Circular 10/71 to her when applying an upgrade. That circular is the basis for upgrading public servants to whom it applies. She also contended that the application of increment freezes agreed as part of Public Service pay agreements was unfair to her and that her wages were affected disproportionately negatively as a result.

The Complainant submitted that she had reached an agreement with the Respondent in May 2108 which provided for payment of €21,977.39 in resolution of all matters relating to arrears of wages due to her as part of the application of an upgrade agreed to take effect from 1^stJanuary 2014.

The Complainant submitted that she had received only €20,785.27 of the wages due to her arising from the implementation of the May 2018 agreement. She also submitted that the Respondent undertook in an e-mail dated 3^rdSeptember 2018 that an additional €5,268.94 would be paid to her and that, while a payment in that amount was received by her shortly after 3^rdSeptember, the Respondent had failed to pay to her the amount agreed in May 2018. She therefore contended that the failure to pay to her the amount committed to in May 2018 meant that she was paid less than the wages properly payable to her and that the Respondent had deducted €5,268.94 from wages properly payable to her and that this was an unlawful deduction within the meaning of the Act.

Summary position of the Respondent

The Respondent contended that all wages properly payable to the Complainant had been paid to her. She had been the subject of two re-grades. The second re-grade involved the placement of the Complainant, in 2018, on the first point of the relevant salary scale with effect from January 2014 in accordance with the provisions of Circular 10/71. Th Respondent submitted that all calculations had been properly carried out and that full account had been taken of all pay movements and relevant factors including public service pay agreements in the period since 2014 in calculating arrears arising.

In May 2018, the Complainant was advised that arrears of pay due to her of €21,510.41 would be paid. Shortly thereafter this figure was revised by the Respondent to €21,977.39.

The Respondent submitted that an e-mail referred to by the Complainant dated 3^rdSeptember 2018 was not an e-mail undertaking to make payment over the amount undertaken in May 2018 but was rather an acknowledgement that a level of liability to the Complainant remained outstanding remained to be fully discharged. The amount specified in the e-mail was paid to the Complainant shortly after the issue of the e-mail and in advance of the within complaint having been made to the Workplace Relations Commission.

The Respondent submitted that any discrepancy in the amount actually paid to the complainant and the amount properly payable to her amounted to inadvertent error of computation and consequently not a deduction within the meaning of the Act.

The Law

The contention of the Appellant is that wages properly payable to her were not paid and that this failure constituted a deduction in accordance with Section 5 of the Act. The Appellant further contends that this deduction was unlawful having regard to Section 5 of the Act. Section 5(1) of the Act provides as follows:

• 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 virtue of any statute or any instrument made under statute,

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

Section 5(6) of the Act deals with regulation of certain deductions made and payments received by employers and 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.

The Court has given careful consideration to the written and oral submissions of the parties.

It is common case that the parties, in May 2018, agreed an amount of €21,977.39 to be paid to the Complainant in respect of arrears of pay arising from her upgrading. It follows therefore that the amount of wages properly payable to the Complainant in respect of the matter was €21,977.39.

There was no dispute between the parties that the total amount actually paid to the Complainant in three tranches was €20,785.27. The Court is satisfied that the difference between the amount actually paid and the amount properly payable to the Complainant is a deduction within the meaning of the Act.

The Court cannot accept the Respondent’s contention that the deduction at issue represents an error of computation. Neither can the Court conclude that the deduction arises for any of the reasons set out in the Act at Section 5(1).

The Court therefore concludes that a deduction of €1,191.12 was made from the wages properly payable to the Complainant during the cognisable period and that this deduction was unlawful within the meaning of the Act.

The Court has been given no basis to support the Complainant’s contention that, in addition to payment of an agreed amount of €21,997.39, the Respondent undertook on 3^rdSeptember 2018 to make a further payment of €5,268.94. Neither has the Complainant specified what deduction from wages might have occurred in the cognisable period as a result of incorrect calculation of increments in the period since 2014. The Court therefore cannot conclude that any further deduction beyond an amount of €1,191.12 was made from the wages properly payable to the Complainant during the cognisable period for the within complaint.

Determination

The Court determines that the total amount of wages properly payable to the Complainant in respect of agreed arrears of wages was €21,997.39 and that she was actually paid a total of €20,785.27. The Court therefore determines that she suffered a deduction from her wages during the cognisable period for the within complaint of €1,191.12 and that this deduction was unlawful.

The Court directs the Respondent to pay the Complainant the sum of €1,191.12 by way of compensation.

The decision of the Adjudication Officer is varied.

The Court so Determines.

	Signed on behalf of the Labour Court
	Kevin Foley
CR	______________________
2 November, 2020	Chairman