PWD2029

1.An appeal of an Adjudication Officer's Decision No. ADJ-00026761.

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 15 June 2020. A Labour Court hearing took place on 2 October 2020. The following is the Determination of the Court:


DETERMINATION:

The Complainant was employed as an office administrator in the Respondent company from 1 January 2005 to 24 January 2020 in the Respondent’s warehouse in Grand Canal Quay, Dublin. In September 2016 she was offered and accepted a 4% increase in her wages. When she left the employment, the Complainant discovered that this increase had not been paid. She sought payment from the Respondent but this was not forthcoming.

The Complainant lodged a claim under the Payment of Wages Act, ‘the Act’, with the Workplace Relations Commission. The Adjudication Officer upheld the claim. The Respondent appealed that Decision to this Court.

Summary of Respondent arguments

The claim was made outside the time limits provided for in s.6(4) of the Act.

An offer of a pay increase was made to the Complainant in September 2016 but it is not clear if this was ever accepted.

The Complainant never raised non implementation of the pay increase with the Respondent and, therefore, through custom and practice, the existing terms of her contract remained in place.

The Respondent provided a number of improved conditions to the Complainant above those provided for in her contract.

Summary of Complainant arguments

An offer of a 4% pay increase was made and accepted in writing.

The failure to apply this increase only came to light when the Complainant left the employment.

This increase forms part of the Complainant’s contract and is payable in accordance with the Act.

The applicable law

Payment of Wages Act 1991

“ wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

• ( a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

  ( b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

• (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.

(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,

• (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)

• (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.

Workplace Relations Act 2015

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 complaint relates.

8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Deliberation and Determination

In the course of the hearing, the Respondent’s representative agreed that an offer of a 4% pay increase had been made and accepted in September 2016. This then formed part of the Complainant’s contracted wages.

The question of time limits in respect of claims under the Act was set out with great clarity in Health Service Executive v. John McDermott (2014) IEHC 331. Hogan J. in that case held that ‘there is a rolling time limit in the law’ and that time runs for the purposes of the Act from the date of contravention ‘to which the complaint relates’ and not from the first contravention.

As the Respondent continued in their failure to pay the Complainant her contracted wages which were properly payable under the Act, they continued in breach of s.5(1) of the Act, as set out above, until the date that the employment relationship was terminated.

The Complainant referred her complaint to the Workplace Relations Commission on 29 January 2020. The cognisable six month period, therefore, is from 30 July 2019 until the date of the complaint.

In the course of the hearing, it was accepted for the Complainant that her proper wage should have been €488.90 per week rather than the €470.10 that she was paid, a difference of €18.80 per week. This means that the Complainant is owed €18.80 x by 26 weeks =€488.80 and the Court determines that this amount should be paid to the Complainant, subject to lawful deductions. This calculation differs from that of the Adjudication Officer.

The Decision of the Adjudication Officer is varied accordingly.

	Signed on behalf of the Labour Court
	Tom Geraghty
CR	______________________
16 October, 2020	Deputy Chairman