FULL RECOMMENDATION
PARTIES : THE IRISH WHEELCHAIR ASSOCIATION DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00028814 CA-00038711-005 The Adjudication Officer decided that the complaint was well founded. Background The Complainant made a complaint to the Workplace Relations Commission on 29thJune 2020. She contended that the Appellant had been in breach of the Act. Having regard to the date of the complaint, the Court accepts the submission of the Appellant that the alleged breach can, in light of the provisions of Section 41 of the Workplace Relations Act, 2015, only be contended to have occurred between 30thDecember 2019 and 29thJune 2020; a period which will hereafter be referred to as the cognisable period for the within complaint. The Court was not provided by the Complainant with any written submission in advance of its hearing and consequently was not provided by the Complainant with any particulars of her complaint. The Complainant notified the Court in advance of its hearing that she was not pursuing her complaint and that, consequently, she would not be attending a hearing of the Appellant’s appeal. The Court responded to that notification to advise the Complainant that, because the appeal to the Court had not been withdrawn, the hearing of that appeal would proceed as scheduled. The Complainant did not attend the hearing of the Court. The Appellant submitted that it had received a claim in 2017 from a trade union seeking implementation of certain arrangements in respect of payment of care staff engaged in sleepovers. The trade union sought implementation in the employment of the rates of pay set out in an earlier Recommendation of this Court in relation to another employer. That Recommendation of the Court was given under industrial relations legislation. The Appellant submitted that, in response to the claim of the trade union, it implemented these rates of pay in 2017 and that the Complainant had been paid these rates since that time. The Appellant submitted that these rates of pay were paid to the Complainant throughout the cognisable period for the within complaint and submitted relevant pay records to support that assertion. The Appellant submitted that the rates of pay implemented in 2017 and paid to the Complainant between 30thDecember 2019 and 29thJune 2020 were, within the meaning of the Act, the wages properly payable to her throughout the cognisable period for the within complaint. The Law The Act at Section 5(1) provides as follows: 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. Section 5(6) of the Act provides: (6) Where (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. Discussion and conclusions The High Court inMarek Balans v Tesco Ireland Limited [2020] IEHC 55,made clear that this Court, when considering a complaint under the Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made from the wages properly payable on the occasion, the Court would then consider whether that deduction was lawful. The Court has been provided with no particulars of her complaint by the Complainant. Against that background the Court is satisfied, on the basis of the uncontested submission of the Appellant, that the rates of pay implemented in the employment in 2017 were the rates of pay properly payable to the Complainant throughout the cognisable period for the within complaint. The Court is further satisfied, based on the uncontested submission of the Appellant and the payroll data submitted to the Court, that the wages which were actually paid to the Complainant throughout the period were the wages derived from the rates of pay implemented in the employment in 2017. There was no difference therefore between the wages properly payable to the Complainant and the wages actually paid to her during the cognisable period for the within complaint. The Court therefore concludes that no deduction from the wages properly payable to the Complainant occurred in the cognisable period for the within complaint. Decision The Court decides that no breach of the Act occurred during the cognisable period for the within complaint. The appeal therefore must succeed and the decision of the Adjudication Officer is set aside. The Court so decides.
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