ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00028712

Parties:

Complaint(s):

Date of Adjudication Hearing:  08/02/2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint(S) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

I find there were no objections to the remote hearing.

Payment of Wages Act 1991

Preliminary objection

The respondent submitted that the complaints under the payment of wages are out of time and the Adjudicator has no jurisdiction to hear them

The respondent stated that the contravention took place 2018 and the complaint was only received by the WRC on the 24th of June 2020.

The claimant’s representative submitted that the claimant only became aware that he was not receiving the monies due to him in April 2020 and the complaint is properly before the adjudicator

It was submitted that 6(4) of the Payment of Wages Act

States” A rights commissioner shall not entertain a complaint under this section unless it is presented to him with 6 months beginning on the date of the contravention of which the complaint relates or in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid such further period not exceeding 6 months as the rights commissioner “considers reasonable well outside the time frame under the Payment of Wages act 1991.

Findings

The claimant’s representative framed his complaint that the claimant only became aware in April 2020 that he was not getting paid the monies due to him.

The complaint was received by the WRC on the 24th June 2020

In accordance with the High Court decision in Health Executive v John McDermott 

“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 “.

“if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January 2014 onwards and which is presented to the Rights Commissioner in June 2014 will still be in time for the purposes of s. 6(4).”

The claimant’s representative submitted that he only became aware of the deduction in April 2020 I that decided that I have jurisdiction to hear the complaint.

Background

The claimant commenced employment with the respondent on the 15th February 2017 on a two-year fixed term contract.

The claimant submitted complaint to the WRC on 24th June 2020.

1. that the respondent failed to pay him 12 weeks sick pay which was part of his employment contract he was owed €5423.08
2.  It was submitted that he (claimant) was entitled to 31` days annual leave €843.80.
3. While he was employed by the respondent, he was the only member of Management not to receive a Security allowance €587.49.
4. The respondent was discriminated by not being paid a pension while he was employed by the Respondent it was submitted that he was due €5430.42.

The respondent submitted that the contract of employment that the respondent operates a sick pay of a maximum of 12 weeks certified illness in one calendar year-normal pay less social welfare.

It was the respondent’s position that this 12-week payment is based on service with the respondent service.

 The contract of employment also states that the contract should be read in conjunction with the Handbook.

The respondent position was that the claimant got his full holiday entitlement.

The contract of employment states that the respondent operates a Defined Contribution Pension Scheme, the details of which are outlined separately and are available from New Ireland Assurance at any time.

It was submitted that it was not a condition of employment for the claimant to join the scheme it was entirely up to him.

The respondent stated that only 2 members of staff have a security allowance.

Findings

Both parties made written and verbal submissions at the hearing

I find that Payment of Wages Act 1991 defines deductions in Section 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 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 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 after the provision of the goods or services.

Re Sick Pay

I find that the contract states up to 12 weeks sick pay less social welfare. I find that there is  some confusion between the contract of employment and the handbook.

I find that the claimant had an expectation of getting 12 weeks sick pay. Whereas he only received 6 weeks’ pay less social welfare payment.

 Holidays

I find that during the hearing reference was made by the claimant to discussions that had taken place with the former manager (now retired) about terms and conditions.

I find that no written evidence was produced to support the complaint.

I find that based on point 10 of the contract of employment 22 days holidays are covered

Security allowance.

 I find that for a complaint under the payment of Wages the deduction must be a term in the contract of employment

I find that there is no term in the contract of employment covering a “security allowance”

I also find that allowances are not covered under the Payment of Wages Acts

Pension

I find that claimant is seeking the respondent’s portion of their contributions to the Defined Contributory Pension

 I find that based on his contract of employment that his salary was €47,000 per annum   and completion of his CIMA exams leading to a full qualification an additional €2000 will be added to the above figure, bringing   his salary up to €49, 000 per annum.

I find there is no mention/note of the respondent’s pension contribution in the contract of employment

I find that the claimant did not apply to join the pension scheme and he therefore made no contributions to the scheme.

I find that based on evidence had the claimant joined and made contributions the respondent would have contributed 5 % as their contribution to the pension scheme.

 I find that no deduction has taken place.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)  in accordance with the relevant redress provisions under Schedule 6 of that Act

 I have decided based on the above findings the complaint on sick pay to be well founded and I award him (complainant) 6 weeks’ pay less Social Welfare

I have decided that based on the above findings the complaints in relation to holidays, Security Allowance and Pension are not well founded and fall.

Dated:   16th April 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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