Complainant

Respondent

Anonymised Parties

A Hotel Night Manager

A Hotel

Representatives

 David O’Regan, BL, instructed by Fitzpatrick Solicitors

Ken Stafford Management Consultancy Services

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00031060-001

23/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00031060-002

23/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00031060-003

23/09/2019

The Complainant commenced employment, in the role of hotel Night Manager, with the Respondent, a hotel, on 28 March 2011.

On 23 December 2018, the hotel General Manager (Mr A) received an email from the Duty Manager (Ms B). The correspondence contained details of a number of allegations against the Complainant and a request that these matters be investigated.

On 27 December 2018, Mr. A wrote to the Complainant, outlining the nature of the complaints received and placing him on suspension with full pay.

On 2 January 2019, Mr. A wrote to the Complainant setting out the results of his investigation and attaching copies of statements taken from other staff during the investigation process.

On 4 January 2019, one of the Respondent’s Directors (Mr C) wrote to the Complainant requesting his attendance at a disciplinary hearing on 11 January 2019.  The Complainant failed to turn up for this hearing and the letter which had been sent to him was returned to the Respondent marked “Gone Away”.

On 26 January 2019, the Complainant acknowledged receipt of notification for a rescheduled disciplinary hearing on 30 January 2019. The Complainant confirmed that he would attend the rescheduled hearing, on condition that the Respondent restored his salary, which had been discontinued due to his failure to attend the first meeting on 11 January 2019.

Despite initially informing the Complainant that if he did not attend the rescheduled hearing on 30 January 2019, it would be conducted in his absence, Mr C subsequently scheduled a disciplinary hearing for 8 March 2019, which the Complainant attended.

On 14 March 2019, Mr C wrote to the Complainant advising that he was being dismissed for gross misconduct. The Complainant appealed the decision and attended an Appeal Hearing on 29 April 2019, which was conducted by the Respondent’s Financial Director (Mr D)

The appeal outcome, which upheld the original decision to dismiss, issued on 2 May 2019.

On 23 September 2019, the Complainant submitted the following complaints to the Workplace Relations Commission:

1.       Complaint under the Unfair Dismissals Act, 1977, for unfair dismissal (Complaint reference - CA-00031060-001)

2.       Complaint under the Payment of Wages Act, 1991, for failure to pay in lieu of notice on termination. (Complaint reference - CA-00031060-002)

3.       Complaint under the Organisation of Working Time Act, 1997, in relation to unpaid annual leave. (Complaint reference - CA-00031060-003)

The above claims are the subject of this adjudication.

Introduction:

In presenting the submission on behalf of the Complainant, his legal representative confirmed the background details, as set out in the previous section. However, reference was made to an incident which took place in September 2012 where a patron who was assaulted on the grounds of the hotel later died. It was submitted that the Complainant was the first on the scene to assist the person involved.

According to the submissions made on his behalf, the Complainant referred to the 2012 incident during the disciplinary process when he provided it as a reason why, when there was a function in the hotel, he, as Night Manager, might have been in an unoccupied bedroom, which had an overview of the entire grounds. According to the Complainant’s submissions, it was inconceivable that Mr. A, as General Manager appears to have been unaware of that event.

While it was conceded that the 2012 incident was not the reason for his being in the vacant room on the night in question, the Complainant contends that the reason he provided for being there (i.e., to check out a water leak in the room) was not properly recorded or explored by either Mr C or Mr D during their respective stages of the disciplinary processes. 

Credibility of Respondent:

According to the submission made on behalf of the Complainant, the complaints against him, the investigation of those complaints and the disciplinary/appeal hearings which followed on from the investigation bring the credibility of the Respondent’s processes and handling of the situation into question.

Unfair dismissal complaint: - CA-00031060-001

With regard to the issue of his failure to attend the first disciplinary hearing, the Complainant refuted the Respondent's contention that he was attempting to avoid the disciplinary process. It was submitted on his behalf, that the initial failure in this regard was on the part of the Respondent. It was further submitted that, while the Complainant informed the company of his new address on 17 December 2018, all of the correspondence relating to the disciplinary issue was sent to his old address.

In addition, it was submitted on behalf of the Complainant that it was unlikely that any person, whose pay had been suspended, would refuse to attend a disciplinary hearing where the possibility existed that his pay and role might be restored. It was further submitted that the Respondent’s explanation for stopping the Complainant’s wages lacked credibility.

According to the submissions on behalf of the Complainant, the Respondent’s decision to stop his pay was a punitive measure and is indicative of a finding of some form of misconduct on the part of the employee. It was further submitted that the only inference that can be drawn from the Respondents actions in this regard is that they wanted to be rid of the Complainant and that the disciplinary hearing and later appeal were undertaken to provide a fig leaf to cover the lack of fair procedure and the predetermined nature of those proceedings.

In support of the Complainant's contention that the Respondent's investigation and disciplinary process was flawed, his legal representative refer to the following aspects:

·       The bona fides of the complaints made against the Complainant is questionable.

·       None of the Complainant’s colleagues who provided statements to Mr A's investigation were called to stand over their statements at the later disciplinary and appeal hearings.

·       The statements provided at the investigation stage contradict each other in respect of central aspects of the claim against the Complainant.

·       The disciplinary hearing relied on what were flawed statements.

·       Mr. A failed to interview the Complainant as part of his investigation into the complaints against him.

·       Mr. A’s attendance at the disciplinary hearing was inappropriate.

·       There are many discrepancies and inconsistencies in relation to the photographs used as part of the investigation process.

In concluding the submissions on behalf of the Complainant in relation to the unfair dismissal claim, his legal representative submitted that the actions of the Respondent were not those of a reasonable employer. It was further submitted that the Respondent’s failure to provide fair procedure was not only a breach of Section 6 (7) of the 1977 Act but indicated that the outcome of the process was predetermined from the outset.

In seeking a favorable outcome to his complaint, the Complainant sought compensation as his form of redress.

Payment of Wages complaint: - CA-00031060-002

According to the Complainant's submission, the Respondent ceased paying him on 13 January 2019 and he remained unpaid until 9 May 2019.

In support of the Complainant's claim in this regard, it is contended that he did not receive notice that his pay was being stopped, either in writing or verbally and he did not consent in writing to it being stopped.

According to the Complainant’s evidence, seven days after the alleged administrative error, which had led to his pay being stopped, he brought the matter to the attention of the Respondent. However, the matter was not rectified, and the Respondent continued to blame the Complainant for the error which was clearly their fault.

According to the submissions on behalf of the Complainant, the 1991 Act provides that an employer shall not make a deduction from the wages of an employee and there are no exceptions which might be used to justify the deductions made in this case.

In summary, the Complainant is seeking compensation for the period of his suspension which, it is claimed, commenced on 13 January 2019 and ended on 9 May 2019, the date of his dismissal. In this regard, the Complainant is seeking 17 weeks’ pay.

Organisation of Working Time complaint: - CA-00031060-003

This claim was withdrawn by the Complainant at the oral hearing.

Introduction:

The Respondent submitted that the Complainant was employed as a Night Manager, from October 2001 until the termination of his employment on 2 May 2019. As a result of complaints received from colleagues of the Complainant, he was suspended, with full pay, on 27 December 2018 while the matter was further investigated.

According to the Respondent, a disciplinary procedure was initiated, which ended in the Complainant’s dismissal for gross misconduct.

Unfair dismissal complaint: - CA-00031060-001

The Respondent provided a detailed submission in relation to the chronology of events leading to the Complainant’s dismissal. The detailed timeline provided by the Respondent is consistent with that contained in the background to the complaint as set out above.

However, the Respondent made specific reference to the exchange of communication between the parties in the period between 19 January 2019 and 2 May 2019. According to the Respondent’s evidence, this communication shows that the Complainant attempted to avoid and disrupt the disciplinary process.

In particular, the Respondent referred to the multiple attempts made by Mr. A to make contact with the Complainant, particularly in the early stages of the disciplinary process. According to the Respondent, these communications included regular mail, email, telephone and text communication. The Respondent contends that the Complainant failed to respond to any of these communications.

Disciplinary Procedures:

The Respondent submitted that the disciplinary procedures were applied appropriately and fairly in this case.

According to the Respondent’s evidence, serious allegations in relation to the Complainant were raised in an email, which the Duty Manager, Ms B sent to Mr. A on 23 December 2018.These allegations included the following:

·       Being in a hotel bedroom, watching TV, while on duty.

·       Taking naps while on his shift.

·       Using foul language to subordinate colleagues.

In support of their contention that a proper investigation was conducted into these allegations and that proper and fair procedures were followed at all times, the Respondent made the following submission:

·       the Complainant was fully informed of the allegations made against him and was given copies of the relevant documents used in the process.

·       the Complainant was given copies of the statement made by six of his colleagues, along with a photograph taken by one of the colleagues.

·       the Complainant was given a copy of an earlier email from a senior manager, which was germane to the matter in hand.

·       a properly convened disciplinary hearing was conducted by a senior manager, who was not the investigating manager.

·       the disciplinary decision was that the Complainant had committed gross misconduct and the penalty was dismissal.

·       the Complainant made an appeal against this decision and that was conducted by a senior company director.

·       the disciplinary decision was upheld at appeal.

The Respondent also made submission in relation to the position adopted and the responses provided by the Complainant during the disciplinary process. According to the Respondent, the Complainant's defence, at the disciplinary hearing, was lacking in substance for the following reasons:

·       the Complainant's assertion that the witnesses and the General Manager were engaged in an “set up” entirely lacks credibility.

·       the Complainant’s claim that he was in the bedroom to “check outside” for his safety is also not credible and ignores the fact that he was sleeping or resting on the bed and was watching television.

·       the Complainant’s claims about taking his break entitlements were not accepted. Staff are not entitled to use bedrooms for personal rest. The rooms have been prepared for guests and must not be used by anyone for rest or other purposes. In any case, there are ample facilities for staff to take breaks, without using bedrooms.

With regard to the appeal process, the Respondent submitted that the Complainant added little or nothing by way of new defense but repeated his denial of the allegations. It was further submitted that the Complainant made reference to a number of unrelated matters, none of which had any bearing on the matter in hand.

The Respondent further submitted that the Complainant did not, at any stage of the procedures, offer any mitigation or any regrets for anything he might have done. According to the Respondent’s evidence, by taking a position that all the allegations were false or were part of a conspiracy, the Complainant put himself in a position where the two hearing managers had no choice but to conclude that he was not giving truthful evidence.

It was further submitted that the Complainant left no scope for middle ground. According to the Respondent, if the Complainant could not accept that he had engaged in any wrongdoing then the Respondent could rightly conclude that he was liable to engage in similar wrongdoing if he was to be kept in employment.

In summary, the Respondent submitted that the Complainant’s actions and failures left no alternative but to apply summary dismissal for gross misconduct and, therefore, there was no valid basis for his unfair dismissal claim. 

Payment of Wages complaint: - CA-00031060-002

With regard to the issue of minimum notice, the Respondent submitted that the Complainant was dismissed for gross misconduct and is, therefore, not entitled to notice payment.

On the matter of “pay while suspended”, the Respondent stated that this claim was not valid. According to the Respondent, the WRC form makes it clear that the claim is for minimum notice. Consequently, the Respondent contends that the claim for pay while suspended is not properly lodged.

Notwithstanding the above, the Respondent submitted that it is clear that the Complainant was solely responsible for delaying the process and he should not be paid for unpaid time that was of his own making. 

Organisation of Working Time complaint: - CA-00031060-003

The Respondent claims that the Complainant was paid all his holiday entitlements, in full, on termination of his employment.

With regard to the issues arising in relation to this complaint, the Complainant and the Respondent made written submission and also provided oral evidence at the Hearing. I have carefully considered and evaluated all of the evidence and submissions adduced in this regard in reaching my determinations as set out below.

Unfair Dismissal Complaint: - CA-00031060-001

The Complainant was dismissed by the Respondent on the basis that his actions/behaviour on the nights of 21/22 December 2018, constituted gross misconduct.

The law which applies to the consideration of the Complainant’s complaint is as follows:

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following….(b) the conduct of the employee….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”

Finally, Section 6 (7) of the Act states as follows:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so –

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act.”

The combined effect of the above sections of the Act requires me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the accused of wrongdoing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

With regard to the case in hand, it is clear from the evidence adduced that the termination of the Complainant’s employment was affected on 2 May 2019, arising from the events of 21/22 December 2018.

The Respondent presented compelling evidence in relation to the Complainant’s actions and behaviours on the nights in question and in the period while he was suspended from work. In addition, to the evidence presented by the Respondent, I found issues with the credibility of some elements of the evidence presented by and on behalf of the Complainant during the oral hearings.

In particular, I found there to be credibility issues with the Complainant’s evidence with regard to correspondence/communication difficulties which arose when the Respondent attempted to advise the Complainant of the outcome of the investigation and invite him to a disciplinary hearing.  The Complainant placed significant emphasis on his contention that, as he had informed the Respondent of his change of address prior to the incidents of 21/22 December 2018, the Respondent must take full responsibility for the delays which occurred as a result of the correspondence being sent to his old address.

The evidence shows that the Complainant notified his change of address to a member of the Respondent’s finance team, which is based at the group headquarters in a different location. It is noted that while the Complainant advised his new address, this information was only submitted in response to a specific request in relation to the sending of P60s to the Complainant. There is no evidence to suggest that the Complainant made any attempt to advise management at his work location that his postal address had changed, which, according to the Respondent, he had done in relation to two previous changes of address.

This is particularly of note given that the letter which was hand delivered tby Mr. A on 27 December 2018, placing the Complainant on suspension pending conclusion of an investigation, clearly stated that management would be writing to him in due course. It would not be unreasonable to expect that in such a situation the Complainant might have advised Mr. A of the change in his postal address, which had taken place some three months earlier.

When the original letter of 4 January 2019 was returned to sender on 11 January 29 with the notification that the Complainant had “gone away”, the Respondent made several attempts through email, telephone and text to contact the Complainant. However, the Complainant contended that he did not receive any of these communications for a variety of reasons including, email going to spam and very poor mobile phone coverage.

Having carefully considered all of the evidence adduced in this regard, I am of the view that there are credibility issues with that presented by the Complainant and that there is a certain validity to the Respondent’s contention that the Complainant attempted to avoid and disrupt the disciplinary process.

A key element of the Complainant’s defense during the disciplinary/ grievance process revolves around the contention that the statements made by colleagues to the internal investigation process where false and, in fact, constituted a conspiracy against the Complainant. Having carefully considered all of the evidence adduced in this regard, I find that the Complainant’s claims in this regard are not well founded. The evidence suggests that rather than this being a conspiracy against the Complainant, their raising complaints with management and supporting these with written statements, more likely represents a dissatisfaction and frustration being experienced by his colleagues, as a result of his actions and behaviours in the workplace and their impact on the work environment.

Consequently, taking all of the above into consideration and based on the evidence presented, I am satisfied that the Complainant’s behaviour and actions, as reported on by Ms B in her email of 23 December 2018, were such that any reasonable employer would be justified in initiating the disciplinary procedures in the circumstances.

However, notwithstanding the fact that the Respondent may have had reasonable grounds, based on the Complainant’s conduct, to consider termination of the employment, there is an onus and responsibility on the Respondent to ensure that fair process is applied in reaching that conclusion and that the Complainant is provided with full access to an appropriate procedure which recognises and protect his rights in this regard.

Having carefully considered all of the evidence adduced in this regard, I find that the Respondent failed to apply fair process or procedure in their termination of the Complainant’s employment. In particular, I note the following aspects of the process/ procedure as applied by the Respondent, as underpinning my findings in this regard:

Firstly, it is clear from the outcome of Mr A’s investigation, as contained in the letter dated 2 January 2019, that his conclusions were primarily based on the evidence contained in statements provided to that investigation by a number of the Complainant’s colleagues. In addition, Mr. A state that he is “entirely satisfied that the statements are truthful and accurate, and compelling in their content”. As already stated, I find it is fully acceptable and reasonable, based on the findings of Mr A’s investigation of the original complaints, that the disciplinary procedures should be invoked.

However, while it is acceptable that, having conducted the investigation, Mr. A might take such a position in relation to the witness statements, it cannot be considered acceptable, in my view, that these statements should travel through the disciplinary/appeal process, without any attempt being made by the Respondent, to examine those statements and/or the robustness of the investigation process. In my view there was a procedural responsibility on the Disciplining Officer or, in the event that it was not done at this stage, on the Appeals Officer to have satisfied themselves that Mr A’s assessment of the witness evidence and their statements formed a reasonable and fair basis for the findings made.

In an internal disciplinary process, it may not be necessary or appropriate to expose witnesses to a full cross examination by a defendant. However, in such circumstances, those tasked with making disciplinary decisions, particularly where dismissal is the potential outcome, have a very clear responsibility to ensure that the evidence on which the decision is being based has been fully tested.

Based on the evidence adduced, I can only conclude that the Complainant was dismissed on the basis of the findings of Mr A’s investigation. In the absence of a clear and proper testing of the witness evidence, the position might have been rectified or alleviated had Mr. A being called before either the Disciplinary Hearing or the Appeal Hearing to attest his investigation and its findings, thereby giving the Complainant an opportunity to directly challenge and/or respond to the evidence.

However, the evidence shows that while Mr. A did attend both the Disciplinary Hearing and the Appeal Hearing, he did so in the role of Note Taker on both occasions. In the circumstances, I find this to be wholly inappropriate and seriously undermining the objectivity and impartiality that should be the hallmark of any disciplinary or appeal hearing. This can only be considered as a further flaw in a disciplinary process, the outcome of which was dismissal for gross misconduct.

Therefore, taking all of the above into consideration, I find that the Respondent’s failed to provide the Complainant with a fair and objective disciplinary process/procedure. It should be noted that this finding in no way impinges on the validity of the evidence provided to Mr A’s investigation or the bona fides of those employees who provided it. However, notwithstanding this, I find that the failure to provide appropriate processes/procedure with regard to the termination of the Complainant’s employment renders his dismissal unfair.

In addition, notwithstanding the above finding, I am satisfied that the Complainant’s conduct, as it applied in relation to the events of the nights of 21/22 December 2018 and during the subsequent investigation/disciplinary processes, can only be considered as a contributing factor in his dismissal.

Therefore, I can only conclude that the Complainant was primarily responsible for his own dismissal and the only reason I am finding in favour of his claim for unfair dismissal is because of the Respondent’s failure to provide reasonable and appropriate process in arriving at and implementing the decision to dismiss.

When considering redress, which is by way of compensation, I have, in line with Section 7 (2) (f) of the Unfair Dismissals Act, as amended, factored in the extent to which the Complainant contributed to his dismissal. The Complainant attained new employment on 3 June 2019, giving a period of 4 weeks without work. Consequently, the compensation figure is based on a weekly wage of €487.00 (gross) and applying a personal contributing ration of 35%

Payment of Wages complaint: - CA-00031060-002

This element of the Complainant’s complaint relates to a period during his suspension, when he was removed from the payroll. 

Having carefully considered all of the evidence adduced in this regard, I find that the actions of both the Respondent and the Complainant contributed to the difficulties underpinning this element of the Complainant’s complaint.

While the Respondent’s decision to take the Complainant off the payroll, as a result of their difficulties in contacting him and his refusal to attend a disciplinary hearing until he was restored to the payroll, might be considered as somewhat arbitrary and unreasonable in the circumstances, I am of the view that, similar to the situation in relation to his unfair dismissal claim, the Complainant also contributed to the situation.  

In the letter of suspension, dated 27 December 2018, the Complainant was advised that he would continue to receive his salary during the disciplinary process. From the evidence adduced at the hearing, it is clear that the Complainant was removed from the payroll with affect from 19 January 2019. This action was initially taken as a result of the Complainant’s failure to attend a disciplinary hearing on 11 January 2019.

However, according to the evidence adduced, the Complainant did show up for a rescheduled hearing on 30 January 2019 but was not willing to engage in the disciplinary process until his wages were reinstated. In the context of a disciplinary process, which could have serious consequences for him, the Complainant’s refusal to proceed with the hearing on the day must be considered as somewhat ill-advised or unreasonable. 

In reply, the Respondent advised that the Complainant’s wages dispute was separate to the disciplinary matter and would be dealt with accordingly.  The Respondent’s contention in this regard is not tenable as the Complainant’s removal from the payroll was directly related to the disciplinary issue. 

On 8 February 2019, the Respondent rescheduled the Disciplinary Hearing for 6 March 2019, when the Complainant returned from a period of pre-approved annual leave (accumulated from 2017/ 2018) taken between 28 January to 3 March 2019, for which he received payment.

On the basis that his removal from the payroll resulted from his initial failure to attend the Disciplinary Hearing scheduled for 11 January 2019, it was not an unreasonable expectation on the Complainant’s behalf to have expected to return to the payroll on 4 March 2019, particularly given that it was clear, by then, he was now engaging with the disciplinary process. However, the Complainant was not restored to the payroll and remained without pay up to the effective date of his dismissal, i.e., 2 May 2019.

Sections (1) and (2) of the Payment of Wages Act, 1991, provides as follows:

“(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.

(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 particulars 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 as a result 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.”

Section (6) (b) goes on to state, as follows:

“Where—

(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”.

Having carefully considered all of the evidence adduced, I find that the Respondent’s failure to pay the Complainant, during the nine-week period between 4 March 2019 and 2 May 2019, in line with his contract of employment and, in particular, his letter of suspension dated 27 December 2018, represents an unlawful deduction from his wages, as set out in Section (6) (B) of the Act above.

Consequently, taking all of the above into consideration, I find that the Complainant’s claim under the Payment of Wages Act is well founded. It should be noted that, in making this finding I am applying the provisions of the Workplace Relations Act 2015, Section 41 (8).

Organisation of Working Time complaint: - CA-00031060-003

This complaint was withdrawn during the oral hearing.

Unfair dismissal complaint: - CA-00031060-001

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s dismissal was an unfair dismissal and, therefore, in breach of the Unfair Dismissal’s Act, 1977.

Based on the above decision I award the Complainant €1,600.00 in compensation, which figure includes notice.

Payment of Wages complaint: - CA-00031060-002

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Respondent has made a deduction from the wages of the Complainant, contrary to Section 5 (1) of the Payment of Wages Act. Consequently, I find that the Complainant’s complaint in this regard is well-founded and I find in his favour in the order of €4,383.00.

This award represents the gross amount due to the Complainant and is, therefore, subject to the normal statutory deductions that would apply to wages in such circumstances.

Organisation of Working Time complaint: - CA-00031060-003

This complaint was withdrawn during the oral hearing and consequently, no decision issues.

Unfair Dismissal

Payment of Wages

Organisation of Working Time