Complainant

Respondent

Parties

Michael  Caulfield

Hickey Fabrication Services ltd (amended on consent at hearing)

Representatives

 Derek Connors

Ms Sinead Finnerty,  Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00043298-001

29/03/2021

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

Both parties considered the implications of Zalewski v Adjudication Officer [2021] IESC 24 and confirmed that they were happy to progress with the case.

On 29 March 2021, the Complainant, a Maintenance Electrician submitted a claim for payment of €2,140.00 in unpaid wages.

On May 7, 2021, Peninsula came on record for the Respondent in the case. The Respondent filed a written submission prehearing on July 7, 2021.The claim is disputed.

The Complainant has worked as a Maintenance Engineer since March 1, 2007. He is paid €1070.00 nett weekly. He has claimed €2140.00 in unpaid wages covering 1-14 February 2021. He has submitted that during this period, he was not permitted to attend his place of work, through no fault or default of his own.

On February 1, 2021, the Complainant was alerted that he may have become potentially exposed to Covid 19 virus in his place of work. He was instructed to stay at home and take the PCR diagnostic test. He refused to take that test.

The Complainant experienced a pay deduction because of this refusal. He determined this to be inequitable as several other potential Covid 19 workers were allowed back on site and did not attract a pay reduction.

Complainant Evidence:

There had been an outbreak of Covid 19 in his workplace around 25 January 2021. The General Manager told him to stay off work to secure the PCR diagnostic test, pending confirmation of a negative finding.

The Complainant asked whether he would be paid and was informed that if he did not take the test he would not be paid or allowed back to work.

The Complainant did not undertake the test and contended that he had been treated differently as other colleagues had been paid and allowed back to work. He believed that he had been discriminated against and had made genuine efforts to resolve the matter.

Cross examination

The Complainant confirmed that he had signed the Self Evaluation form on Covid 19. He accepted that the Company did not operate a sick leave scheme.

It was the complainant case, that he had not been deemed a close contact and nothing he heard had convinced that he was a close contact.

He stated that he had not been working on the turbo wheel in February and clarified that he had been in the vicinity of the Turbo wheel around January 25.

He had not applied for the Covid support payment (PUP) as he had just been deemed “at risk” and was not sick.

He accepted that the HSE had made a recommendation on the 15 minutes of presence rule.

He queried those others, who were allowed work when he was not permitted to do so. He accepted that he was not notified that he would not be paid but argued that he had not given consent for the reduction.

The Complainant explained that he had personal reasons for not presenting for the PCR test and listed 3 reasons.

When questioned on what category of worker he considered himself to be in at that time vis a vis Covid 19, he answered,” I was not a close contact” he told the hearing that he remained ready, willing and able to work and was unfairly treated by his long-term employer.

The Complainant side re-affirmed that the complainant had not fallen into the category of close contact to justify submission for testing. He had personal reasons for absenting from the test and disputed the arbitrary reduction in his monthly wage.

The Respondent operates a bespoke design and manufacturing business of 300 employees and confirmed that the complainant had been employed as a Maintenance Electrician from March 1, 2007. The contract of employment was exhibited.

The Respondent rejected the claim for unpaid wages.

The Respondent representative outlined that the complainant was placed to work on a secondary site, one which the respondent provided maintenance engineers to.

The Respondent Representative outlined that Covid 19 prompted a detailed Management approach by the respondent.

Employees were required to comply with a “daily covid 19 self-evaluation manual form” which incorporated confirmation of close contacts and adherence to HSE guidelines.

The Respondent Business had several confirmed positive cases of Covid 19 in January 2021. Fourteen of these cases were linked to an on-site transmission during the week of January 25, 2021.

The Health Authority identified groups for testing and the complainant was covered in this grouping. He was a potential close contact of a confirmed case of Covid 19. The Plant was subject to external Public Health advice. This advice recommended testing of specific contacts who had been 15 minutes in the vicinity of the confirmed case, that was the two weeks preceding 2February, 2021. By that profile, the Complainant was deemed to have met the criteria for testing.

The Respondent exhibited the Employee Communications of February 3 and 17 ,2021

The Complainant refused to attend for testing. He was informed that as he had refused a covid test, in line with public health advice, he would be required to quarantine at home for a period of 14 days. The Company did not pay sick pay.

If you do not undertake the test as a potential close contact, I cannot guarantee that you are covid negative, and accordingly not a risk to your colleagues. Ultimately, it is your decision not to take a test, however, it is my duty of care towards all our staff to ensure their wellbeing and while there is any doubt about your covid status, you will not be required to work as you will need to self-isolate as you are declining to take a test, this will be deemed your own decision. To clarify, this period of isolation will be unpaid. You will be permitted to return to work Monday, 15 February, provided you have no Covid 19 related symptoms. The Respondent engaged in correspondence with the complainant. He was not paid for his period of absence.

Respondent Evidence

Mr A is the Managing Director of the business and confirmed that 250 employees made up the company.

The Company did not pay sick leave.

The Respondent was alerted to an outbreak of 20 cases of covid 19, within the workforce, by February 2021.

Mr A outlined the duty of care he believed was owed to the workforce. The affected grouping had been working with the confirmed covid case. The Complainant in particular had been training with the person. He decided that the Company could not take the risk of leaving him at work, without intervention.

He submitted that the complainant was deemed a close contact and placed on leave. He was not requested to provide a sick note, and none was produced. He was informed that he could claim the covid support payment, PUP.

It was the respondent case that the complainant did not comply with the HSE guidelines and was the sole employee who refused to present for diagnostic testing. He had clarified, when asked that the Company was not paying the complainant for being at home.

Cross examination

Mr A denied that his refusal to pay they complainant contravened the Payment of Wages Act6. The Respondent distinguished the complainant from others allowed to return to work pending test results by saying that he had been in direct contact with a positive covid 19 workers.

The Respondent confirmed that he had adhered to his duty of care to the workforce and their families when following HSE advice in seeking that employee be tested for the covid 19 virus. The complainant was refused pay when he failed to attend for testing.

The Respondent classified the complainant as a high potential contact.

He confirmed that the Union had not raised any grievance for the complainant, a long serving shop steward and added that without a confirmed negative test linked to an “at risk “employee., the plant and their families were at risk.

The Respondent confirmed that the complainant could not enter the premises without a covid test. He did not have work for him as a result.  When asked if the complainant had been laid off in accordance with his contract of employment, he confirmed that he had been laid off for the two weeks.

The Respondent confirmed that 3 confirmed cases of covid had followed, all of whom had recovered fully.

The Respondent concluded by describing the non-payment of wages as a justified action of Lay off by a concerned employer. The decision was framed against the backdrop of a national emergency period and safety health and welfare concerns for both the complainant and the remaining staff.

Provision within the Union / Management Agreement to address the claim locally had not been exhausted.

Findings and Conclusions:

I have been requested to make a decision on this claim for unpaid wages governing the period 1-14 February 2021. In reaching my decision, I have had regard for all written and oral submissions. I have also had regard for evidence adduced at hearing.

This case comes before the WRC as a claim for unpaid wages following a period where the Complainant was sent home from his job against the background of several positive covid diagnosis amongst the workforces.  The confirmed case at the centre of this case seems to have evolved from an occurrence around January 25, 2021.

The kernel of the case centres on how, firstly the respondent categorised the complainant in terms of his proximity to a confirmed covid case in early February 2021 and secondly, how the complainant took issue with this categorisation and sought to dispute it. The deduction of two weeks wages is at issue.

As an Adjudicator, my jurisdiction in this case rests firmly with Sections 1, 5 and 6 of the Payment of Wages Act, 1991, where Section 1 defines wages as:

 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:

Section 5 of the Act prohibits a deduction in wages save by statute, contract or mutual agreement.

Regulation of certain deductions made, and payments received by employers.

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 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.

In the instant case, the Respondent issued a Communication to staff dated February 3, 2021. This reflected a stark employment back drop referred to a COVID 19 update. This referred to the Plant where the Complainant was based.

 This period coincided with a period of National Lockdown, where only essential services/industry were deemed eligible for trading. The Complainant worked in essential maintenance. The email, not sighted by the complainant, yet addressed to all Plant based staff. It detailed the steps being taken in response to a serious outbreak of 14 cases of covid 19 linked to one specific outbreak.

 It was the knock on from these cases that prompted universal testing on foot of external medical advice. The critical area was accepted by the Complainant as an area where he had interfaced with an identified machine. The confirmed case shared a similar work experience in the same time period.

The Respondent requested the complainant’s presence for testing and when he refused, he was requested to stay at home for 14 days as a default position. He returned to work on February 15, 2021.

My attention was drawn to the Letter from Mr A to the Complainant dated February 4, 2021. This correspondence accepted that the complainant had a right to refuse a covid 19 test. However, the acceptance was qualified by a statement that the complainant would not be required to work as a result of his having too self-isolate.

I accept the Complainants submission that he was not requested to submit to a risk assessment to evaluate this finding.

However, I was taken by the Respondent evidence at hearing that he was terrified at the prospect of the complainant attending work as a potential close contact of a confirmed case of covid 19. In these situations, I appreciate that the identity of the confirmed case was not released but the details of the resultant legacy risk of exposure was communicated widely within the workforce. I accept that the complainant held a principled objection to being tested for the virus and was faced with the default position of being placed off work. He took this personally.

I have reflected on the inter party correspondence from this time and I have reflected on the evidence. The complainant understood that he was not a close contact of a confirmed case and that absented him from having to submit to testing. He became aggrieved that colleagues who were tested were permitted to return to work without having to wait for test results, while he was compelled to remain at home following the letter of February 2, 2021. He asserted that he had been marginalised.

The National Pandemic has present in this Nation since March 2020. It has been an omnipresent risk to National health and Safety. I do not hold the skills to categorise the complainant into a risk category for the virus. However, I have placed some weighting on the Respondent evidence that he was advised to secure testing of all workers who worked in the vicinity of this Turbo Wheel. The Complainant did not dispute that he had been present there for a short period during the period under inquiry. I have found that the Respondent acted in good faith in first inviting the complainant to be tested and in the absence of traction there, he sought to exercise the temporary layoff clause in the complainant’s contract.

Temporary Lay off

Lay-off and short-time.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off. 

In the EAT case of Don Mc Donagh and Shoreline Taverns ltd [2014]25 ELR 98. The Tribunal considered whether a Lay Off in the Hospitality Industry prior to Redundancy attracted payment.

The Tribunal find that when s.11 is genuinely invoked, and the employer satisfies s.11(1)(a) and (b) then the contract of employment is temporarily suspended and there is no right to payment during that period. Furthermore, the Tribunal finds that there is a notorious custom and practice in this jurisdiction that employees will not be paid during a period of lay off. Lay off itself is an instrument of statute.

In Mc Donagh, the complainant did not have the benefit of a contract of employment. In the instant case, the complainants contract carries a lay off clause at section 17.

I find that the Respondent genuinely believed that he had invoked a temporary layoff when he instructed the complainant to stay home in the February 4 correspondence.

 I have also found that he satisfied Section 11(1)a) of the Redundancy Payments Act, 1967, as a result. He had placed a 14-day temporal limitation on the Layoff covering February 1 to February 15, 2021.

However, I have established that notice of lay off was issued on February 4 without prior notice of cessation, to comply with Section 11(1)(b) of the Temporary layoff clause.

I accept that notice of cessation was issued just prior to February 5, 2021.

This analysis results in a dichotomy during the period claimed:

February 1 to 4 inclusive did not fall fully within the definition of temporary layoff within Section 11(1)(a) and (b)

February 5 to February 14 inclusive complied with the contractual term of temporary layoff and fell within Section 11(1) (a) and (b) on Temporary Lay Off.

It is regrettable that this matter became polarised between the parties at an early juncture. The topic would have been much better suited to a mutual engagement within the company procedures.

 I note that the complainant was directed to pursue the statutory support benefits at this time. He told the hearing that he had not advanced this avenue.

I appreciate that these were extraordinary days for both parties in this case and both parties acted in good faith in their respective positions. Both parties continue to work together.

 However, I have established that a temporary layoff situation prevailed in part for the Respondent to support an element of   the deduction made in this case. I accept that faced with the heightened risk he associated with the complainant’s declaration on PCR testing, he triggered a temporary layoff circumstance. I have found that the complainant did not demonstrate an understanding of this aspect of his contract and perceived that he had been suspended. It may have benefitted both parties if the word “lay off “had been used contemporaneously.

This valid temporary layoff amounted to 6 working days from February 5 to February 14 inclusive.

I conclude that the Respondent contravened Section 5(1) when the first 4 days wages were deducted from February 1-4, 2021, inclusive.

I have found that the claim may have benefitted from a 1:1 engagement within the local dispute’s resolution mechanisms.

I find the complaint is well founded in part and the Respondent has contravened Section 5(1) of the Act in respect of 4   working days February 1-4, 2021, alone as Temporary Lay Off applied to the remaining days of absence as set out in the contract of employment.

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

Section 6 of the Payment of Wages, 1991 requires that I make a decision in accordance with Section 5 of that Act.

I have found the complaint to well founded in part. I order the Respondent to pay the Complainant €877.76 nett of statutory deductions, as reasonable compensation, in respect of the unpaid wages for the 4-day period, prior to the commencement of temporary lay off on February 5, 2021.

The parties may need to consider any Revenue Balancing Statement pertaining to this period.

Payment of Wages. Covid 19 Temporary Lay Off