ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020439
Parties:
| Complainant | Respondent |
Parties | Paul Ruttledge | Our Lady of Consolation Nursing Home Limited |
Representatives | Self-Represented | Mr. Conor Quinn, John J Quinn & Co Solicitors |
Complaints:
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-00025386-001 | 29/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00025386-002 | 29/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00025386-003 | 29/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00025386-006 | 29/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00025386-007 | 29/01/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 4(1) of the European Communities (Occurrence Reporting in Civil Aviation) Regulations 2007 | CA-00025386-008 | 29/01/2019 |
Date of Adjudication Hearing: 13/04/2021
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced employment with the Respondent on the 8th September 2018. At all times the Complainant was employed as a chef for the Respondent. The Complainant worked for 12 hours per week at a rate of €15.00 per hour. On the 14th January 2019, just over four months after commencement, the Complainant’s employment was terminated by way of resignation. On 29th January 2019, the Complainant lodged number of complaints under various legislation with the Commission. A hearing in relation to this matter was initially convened for the 18th November 2019. At this hearing, the matter was adjourned to allow the Complainant to consider and respond to a preliminary application raised by the Respondent. The matter was duly reconvened for 13th January 2020. As matters transpired, on that date the Complainant’s mode of transport was cancelled due to inclement weather and a national weather warning that was in place. Given the exceptional nature of the rationale for the Complainant’s non-attendance, and the fact the circumstances necessitating the same were entirely beyond his control, the matter was again adjourned. The matter was re-listed for 23rd March 2020. Unfortunately, due to the emergency measures imposed as a consequence of the Covid-19 pandemic, this hearing was cancelled. On the 13th April 2021, this matter was heard and finalised. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the Workplace Relations Commission as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. At the outset of the initial hearing, the Complainant withdrew the complaints under the European Communities (Occurrence Reporting in Civil Aviation) Regulations 2007, the Protection of Employees (Part-Time Work) Act, 2001 and the Safety, Health & Welfare at Work Act, 2005. He further confirmed that the complaint under the Payment of Wages Act bearing reference number CA-00025386-002 was a duplicate and this particular complaint was withdrawn. The Complainant confirmed that the matter was to proceed under the Unfair Dismissals Act and one complaint under the Payment of Wages Act only. At the outset of the hearing regarding the complaint under the Unfair Dismissals Act, the Respondent raised a preliminary issue as to my jurisdiction to hear the complaint. |
Preliminary Issue
Summary of the Respondent’s Case:
The Respondent submitted that as the Complainant had not accrued one year of continuous employment on the date of dismissal, he could not avail of the protections set out in the Act. On receipt of the Complainant’s subsequent submission, the Respondent further submitted that the Complainant’s dismissal did not fall under one of the excepted grounds set out in the Act. |
Summary of Complainant’s Case:
By response, the Complainant stated that the conduct of the Respondent was such that he had no choice but to terminate his contract of employment. When asked to specifically outline whether he believed any of the exemptions to the service requirement set out in the Act applied, the Complainant stated that he was bullied and harassed by the Director of the Respondent, and that he believed he was treated less favourably for raising a grievance against his formed employer. |
Findings and Conclusions:
Section 2(1) of the Unfair Dismissals Act provides that, This Act shall not apply in relation to any of the following persons: (a) an employee…who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him. The Act sets out exceptions to this service requirement and states: “Section 2 (1) … shall not apply to a person … who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of section 6.” On receipt of the Respondent’s submission in this regard, I allowed the Complainant an opportunity to review the Respondent’s application and to consider whether any of the exceptions set out in Section 6 applied to him. By further submission, received prior to the resumed date of hearing, the Complainant set out the alleged poor treatment he was subjected to at the hand of the Respondent. He then submitted that he believed that he was bullied and harassed by the Respondent and that he was treated differently to other employees when he raised a grievance regarding the same. In the course of this submission the Complainant did not expressly state that any of the exemptions set out in Section 6 applied to him. It is apparent that the matters raised by the Complainant would constitute the subject matter of the constructive dismissal complaint, should I have jurisdiction to hear the same. In light of the foregoing, I find that that as the Complainant did not have one year of continuous service on the date of his dismissal, I have no jurisdiction to hear the complaint. |
Complaint under the Payment of Wages Act
Summary of the Complainant’s Case:
The Complainant alleged that he had been subjected to an unlawful deduction of wages. Specifically, the Complainant stated that a deduction of €22 had been taken from his final payslip. While the Complainant accepted that he had agreed to a deduction from his wages in respect of a uniform allowance, this agreement had been finalised and no further payments were outstanding. The Complainant further submitted that he was unaware that the payment was going to be deducted from his final payslip. |
Summary of Respondent’s Case:
In answering the complaint, the Respondent submitted that they had entered into an agreement with the Complainant regarding the payment for his uniform. They submitted that it was agreed that the Respondent would cover the initial cost of the uniform, with the payment recovered over a period of weeks via deduction from the Complainant’s wages. They stated when the Complainant resigned his employment, €22 of this amount was still outstanding. As the Complainant’s final payment was the last opportunity to recover this outstanding sum, they deducted it from this payslip. By submission, the Respondent’s representative stated that the employee handbook contained a section permitting deductions from wages in agreed circumstances. As such an agreement was in place, the deduction was lawful for the purposes of the Act. |
Findings and Conclusions:
Section 5(1) of the Payment of Wages Act sets out the following prescriptive steps in order for a deduction from wages to be deemed lawful; “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.” Regarding the present case, I note that deductions from the Complainant’s wages were agreed between the parties, I further note that this agreement was provided for in the Complainant’s contract of employment. Nevertheless, it is also clear that this agreement was not reduced to writing as per subsection C listed above. In the circumstances, I find that the final deduction of €22 was an unlawful deduction for the purposes of the Act. |
Decision:
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 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00025386-001 – Complaint under the Payment of Wages Act I find that the Respondent is in breach of the Act and the Complainant’s complaint is well-found. In relation to redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the amount owed. Having regard to all he circumstances of the matter, I award the Complainant the sum of €22 in compensation. CA-00025386-003 – Complaint under the Unfair Dismissals Act I find that I do not have jurisdiction to hear the complaint. |
Dated: 8th September 2021
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Unlawful deduction, final payslip, continuous service. |