FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : VURZOL DUBLIN WEST LIMITED BLUEBIRD CARE T/A BLUEBIRD CARE MEATH (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MS AISLING KEHOE (REPRESENTED BY JOAN KEHOE) DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's DecisionADJ-00023775 CA-00030370-002 Ms. Kehoe, ‘the Complainant’, initially worked for Bluebird Care Dublin West, ‘the Respondent’ from July 2016 to September 2017 as a Care Assistant. She returned to work for her former employer in March 2018 as a Social Care Worker. She was paid €15 per hour in this role. In July 2019 the Complainant met with her manager for a performance appraisal. The manager grew concerned as a result of this meeting that the Complainant, although she had a degree in Psychology, did not have the necessary qualifications for a Social Care worker role, (which the Complainant disputes). The directors of the Respondent decided subsequently in July 2019 that the Complainant could not continue in the Social Care Worker role and that she would be assigned to a lower pay grade, with a reduction in pay of €3.50 per hour down to €11.50 per hour, with effect from 1 July 2019. This was not acceptable to the Complainant, who lodged a complaint under the Payment of Wages Act, ‘the Act’, with the Workplace Relations Commission on 19 August 2019. The Adjudication Officer upheld the complaint and awarded payment of arrears up to 24 July 2019 at €15 per hour, (total €212.80) a holiday pay shortfall of €164 and compensation of €285. The Respondent appealed this Decision to this Court. Summary of Respondent arguments The Respondent was unaware that the Complainant lacked the qualifications necessary for the role of Social Care Worker and, on becoming aware, had no choice but to correct the error and to place the Complainant on the correct pay scale. S. 4 of the Act provides that an error or omission in good faith shall be regarded as complying with the Act. No unlawful deduction of wages was made as at no point was the Complainant’s salary below her appropriate pay grade. Deductions made were lawful under s.5 of the Act. The Respondent has not pursued monies owed to them for the period March 2018 to July 2019 when the Complainant was employed on an incorrect rate of pay but may have no option but to do so. The Court determined inAn Employer v. A Worker (PWD 1916)that where there is an overpayment, s. 5(5) of the Act allows the employer to seek recovery. Of relevance also areMeath County Council v. David Byrne (PWD2013)in which the Court held that the employer could revert an employee to his substantive grade;Monica Campion v. Department of Education and Skills (PW193/2015)in which the Court held that the cessation of an allowance was a lawful deduction;HSE North East Area v. Atiqa Rafiq (PWD1831)in which the Court held that a doctor who resigned to undergo training was not entitled to return to a previous pay scale;Aer Lingus v. Colin Matchett (PWD1822)in which the Court held that rectification of an error by the employer did not constitute an unlawful deduction. Note-the Respondent withdrew arguments regarding the differentiation between ‘deductions’ and ‘reductions’ in wages that are properly payable under the Act. The Respondent was restricted by the requirements of CORU, the relevant regulatory body and could not continue to allow the continued employment of the Complainant as a Social Care Worker. The Respondent could not treat the Complainant more favourably for pay purposes than other Care Assistants when she was reverted to that grade. She did not have the necessary qualifications for that role either, so the Respondent acted reasonably in allowing her paid leave at €11.50 per hour to pursue relevant qualifications. Summary of Complainant arguments The Complainant had a verbal agreement for a rate of pay of €15 per hour. Her pay was reduced, with effect from 1 July 2019, to €11.50 per hour, despite this contract. This reduction was applied to all hours worked up to 12 August 2019 and for requested annual leave up to 25 August 2019. This is contrary to the terms of the Act. The latter date was the last date on which the Complainant either worked for the Complainant or received pay for annual leave. The Complainant is entitled to recover underpayments up to 12 March 2020, as per s.4 of Schedule 7 of the Workplace Relations Act 2015 as her verbal contract remained in place up to that date. She was no longer available for work from that date. The Complainant had the necessary qualifications for the role of Social Care Worker. The Complainant made clear by e-mail on 29 July 2019 that she did not accept the deduction from her wages. On 31 July 2019, her pay slip showed that this deduction had been applied retrospectively to 1 July 2019. The Complainant sent a further email on 1 August 2019 to state that she did not accept the deduction. A further email was sent to confirm this non acceptance on 13 August 2019. A complaint was lodged with the Workplace Relations Commission on 19 August 2019. The Complainant has, therefore, made clear that she is not agreeable to this deduction and the deduction was made contrary to the rights of the Complainant under 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 Statements of wages and deductions from wages.
(2) A statement under this section shall be given to the employee concerned— (a) if the relevant payment is made by a mode specified insection 2(1) (f), as soon as may be thereafter, (b) if the payment is made by a mode of payment specified in regulations undersection 2(1) (h), at such time as may be specified in the regulations, (c) if the payment is made by any other mode of payment, at the time of the payment. (3) Where a statement under this section contains an error or omission, the statement shall be regarded as complying with the provisions of this section if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith. Regulation of certain deductions made and payments received by employers.
(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 insubparagraph (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. (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 (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 Complaint to adjudication officer undersection 41of Workplace Relations Act 2015
(a) the net amount of the wages (after the making of any lawful deduction therefrom) that — (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to inparagraph (a), twice the former amount. (2) (a) An adjudication officer shall not give a decision referred to insubsection (1)in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment. (b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to insubsection (1)in relation to the deduction or payment. Note—s.6(2)(a) and (b) above incorporate the changes referred to in the Complainant’s submission in Schedule 7 of the Workplace Relations Act 2015. Deliberation The Complainant, in arguing that she is entitled to recover deductions made after the date that her claim was submitted to the Workplace Relations Commission by virtue of s. 6(2),(a) and (b), set out above, has raised an issue regarding the scope of the claim that the Court has to deal with first before considering the rest of the arguments made by the parties. The Complainant’s representative has read these provisions to mean that the Complainant is entitled to make claims under the Act up to the commencement of any proceedings after her claim was submitted. This is an incorrect reading of these sections, which are intended to refer only to the Civil Courts and not to the Workplace Relations Commission and/or this Court. The intent of the sections concerned is to avoid a situation where the same claims can be brought both to the Commission, (and to this Court, on appeal), and to the Civil Courts. It is clear from the remainder of that section of the Act that the purpose of the legislation is to offer protections to employees against unlawful deductions that have been made prior to the lodgement of a claim under the Act. The only restriction on this right to retrospective claim is that set out in s. 41 of the Workplace Relations Act 2015, which is not of relevance to the facts of this case. The period to which the Court is required to give attention, therefore, is the period from 1 July 2019, from which date a deduction was made from the Complainant’s wages, to 19 August 2019, on which date the complaint was lodged with the Workplace Relations Commission. The issue for the Court is to determine if, in that period, an unlawful deduction was made from the wages that were payable to the Complainant. The Court, often despite its best efforts, heard a great deal about the qualifications required of a Social Care Worker. The Court is not competent to determine what these may be. Rather, the issue for the Court is to determine if, having identified what they believed to be deficiencies in the Complainant’s qualifications, the Respondent was entitled to deal with that by introducing a deduction from her wages. The absence of a written contract is not an impediment in this case as it is accepted by the Respondent that there was a verbal contract to pay the Complainant a rate of €15 per hour when she was re-engaged by them. There was, therefore, a contractual commitment in place for this rate to be paid. This was the rate properly payable to the Complainant by her employer. The circumstances in which it is lawful for an employer to make deductions from the wages to which an employee is normally entitled are set out in the Act as quoted above. The Respondent argues that, as per s.4(3), in cases of errors, compliance with the Act should be assumed. However, there was no error in the contract. A rate of payment was agreed, the Complainant carried out the work agreed and nothing in this section can be used to support the decision to cease paying the Complainant the wages agreed for the performance of that work. A second argument by the Respondent that s.5(5) allows an employer to recoup overpayments which, they argue, is the situation in this case is, in the view of the Court, also invalid. This provision is evidently intended to provide for recovery of monies that, for whatever reason, are paid to an employee in excess of the employer’s contractual obligation. Again, the Court looks to the verbal contract, in which it was provided that the Complainant would perform certain work for which she was to receive a rate of pay of €15 per hour. There is no suggestion that the Complainant failed to meet her obligations in terms of the performance of her duties and, therefore, she is entitled to be paid as per the contract agreed between the parties. The Respondent argued that they had no choice but to do what they did. This is not the case and an employer cannot decide unilaterally to cut the wages of an employee as a solution to their view that the contract between the parties has been voided. The Court, having satisfied itself that the deduction from the Complainant’s wages was unlawful, must turn its attention to the question of quantum. The hours worked in July were set out in the pay slip for the month of July. This shows hours worked of 232.01. In addition, there were 13 working days between 1 August and 19 August, inclusive. The parties are in agreement that the Complainant was scheduled to be paid for 32 hours in that period. Five of those hours were at double time for a bank holiday, giving payment for 37 hours. This gives a total of 232.01 + 37 = 269.01 hours in which the Complainant was entitled to be paid an additional €3.50 per hour, resulting in a total underpayment due to her of €941.53. The Court determines that this amount should be paid by the Respondent to the Complainant. Determination The Decision of the Adjudication Officer is varied, as set out above.
NOTE Enquiries concerning this Determination should be addressed to Noel Jordan, Court Secretary. |
