Complainant

Respondent

Parties

Bridie  Mahon

Health Service Executive

Representatives

Vernon Hegarty SIPTU

Management.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032297-001

18/11/2019

The Complainant is employed by the Respondent as a Laundry Assistant and has been so for a number of years.

The complaint relates to three days payment that the Complainant claims was annual leave.

This complaint was received by the Workplace Relations Commission on 18th November 2019.

The Complainant is employed as a Laundry Attendant by the Respondent.

On 17 October 2019, the Complainant noticed a deduction of €385.59 from her payslip under the item 'BasHrsAdj'. We understand that this reflects supposed absence from work on 23 September (attributed to sick leave) and 24 & 25 September (described as 'unauthorised absence). The Complainant contends strongly that these days had been booked as annual leave on 16 September and will give evidence to this effect if asked.

Section 5(1) of the Payment of Wages Act 1991 provides that an employer shall not make a deduction from the wages of an employee unless the deduction is authorised by  statute or the contract of employment or by prior written consent. We say that none of these apply to the deduction of 17 October.

Section 5(2)(a)(iv) provides that an employer shall not make a deduction from the wages of an employee in respect of any act or omission of the employee unless 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. It should be common ground that this did not occur.

We presume that the employer will seek to rely on section 5(5)(a)(i), which provides that  nothing in the section applies to a deduction made for the purpose of the reimbursement of an overpayment of wages. The Complainant denies any overpayment (see para 2) and therefore we contend that this statutory saving does not apply. In any event, it is not accepted that the taking of leave in excess of the annual leave entitlement (which is not admitted: see para 2) constitutes an overpayment of wages.

 The employer is in breach of section 4(1), which states that 'An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom' (our emphasis).

Section 6(1) provides that the Adjudication Officer shall communicate a decision in writing to the parties setting forth his or her opinion on the merits of the dispute.

The Complainant seeks a decision that her complaint is well-founded and an order that the  employer pay her compensation of such amount (if any) as the Adjudication Officer thinks reasonable in the circumstances.

The Complainant claims that she was unlawfully deducted 3 days wages (€385.59) for dates 23rd, 24th and 25th September 2019 and that she had annual leave booked.

·       Respondent records show an email dated 23/09/2019 at 12.40hrs from the Laundry Manager to the Services Manager stating he had received a call on behalf of the Complainant stating she was not feeling well, and she would not be in today.

·       Leave in the Laundry Department is booked on the Managers/Supervisor excel sheet and there is no record of leave approved for dates 23rd, 24th and 25th September 2019. The way this works is a staff member asks about a date, if available we book it on the system and then confirm verbally its booked, if it’s not available we confirm verbally that it’s not available and it would not be entered on our system.

·       The Complainant was returned for USL (Uncertified Sick Leave) 23rd Sept and UPL (Unpaid Leave) for 24th & 25th September 2019 by Management.  The Complainant was not entitled to pay for any of the 3 days – 23.75 hours pay deducted from her on pay date 17.10.2019.

·       The Complainant had exhausted her uncertified leave entitlement which is 7 days over a 2-year period.

Management’s position is that the Complainant is not entitled to payment for the 3 days claimed. No annual leave was approved for these dates and the Complainant had exhausted her entitlement to pay.

The Respondent records show an email dated 23/09/2019 at 12.40hrs from the Laundry Manager to the Services Manager stating he had received a call on behalf of the Complainant stating she was not feeling well, and she would not be in today. This would be a very strange step to take if the Complainant was on annual leave.

During the hearing of the complaint the Respondent HR Manager outlined the process to be followed by employees when they are looking for annual leave. Part of this process involved the employee booking annual leave by completing the days on their annual leave card. Every employee has an annual leave card for this purpose.

The Complainant did not complete her annual leave card in relation to the days in question.

There is conflicting evidence from the parties. I therefore have to decide which evidence is more credible.

On the balance of probabilities, I accept the evidence of the Respondent and therefore deem the complaint not to be well founded.

On the balance of probabilities, I accept the evidence of the Respondent and therefore deem the complaint not to be well founded.

Payment of Wages Act.