ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032866
Parties:
| Complainant | Respondent |
Parties | Jason Colman | Alpha Facilities Maintenance Limited |
Representatives |
| Anthony Brady Construction Industry Federation |
Complaint:
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-00042203-001 | 28/01/2021 |
Date of Adjudication Hearing: 12/07/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act (or Acts) contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 1st of February 2019 was submitted within the time allowed.
As the Adjudication Officer, I must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5) and found:
“Not withstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”
The Labour Court stated:
“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”
I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. In this regard I have explained that emergency legislation is pending which will empower Adjudicators to administer said oath. The parties were happy to proceed in the absence of said oath/affirmation.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.
Background:
The Complainant herein issued a workplace relations complaint form on the 28th of January 2021. At that time (January 2021) the Complainant was no longer working with the Respondent company as the employment relationship terminated in November 2020. The Complainant had worked with the Respondent company for a period of one year and ten months i.e. from January 2019 to November 2020. The Complainant has raised a complaint that his Employer made unlawful deductions from his wages from 1st of April 2020 to the 29th of July 2020 (pay periods 14 to 31). As previously stated the Adjudication Officer shall not entertain a complaint referred to the said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates. On the face of it, I can only consider any contravention which happened on or after the 29th of July 2020 and up to the 28th of January 2021. However (per Section 41(8)) I may entertain a Complaint or dispute to which section 41 applies after the expiration of the six-month period referred to (though not later than a further six months after the initial expiration as the case may be) if I am satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. If the Complainant can show that a reasonable cause gave rise to his failure to present his case earlier, then I can consider any alleged contravention of the Act in the period from the end of January 2020 to January 2021. |
Summary of Complainant’s Case:
The Complainant was unrepresented and gave evidence on his own behalf. The Complainant prepared a very helpful submission and brought me through his various exhibits. The Complainant is adamant that the Employer unlawfully deducted his remuneration against his will when the Employer availed of the TWSS. The nett effect, says the Complaint, is that his pay per hour was reduced from €23.50 to €18.58. This was identified in the supporting documentation. |
Summary of Respondent’s Case:
The Respondent provided me with a submission and has sought in particular to exclude the Complainant from including contraventions which might have occurred prior to the 28th of July 2020. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant gave his own evidence. He commenced his employment as a Maintenance Technician (working in air conditioning and refrigeration) on the 2nd of January 2019. The Complainant was on a 38-hour week at an hourly rate of €23.50. His normal gross weekly pay was therefore in and around €917.00 with take home pay at about €690.00. When the Covid Pandemic hit, the Respondent company opted to avail of the Temporary Wage Subsidy Scheme which was a Government initiative to try and ensure companies hard hit by economic loss would be able to continue paying salaries with the assistance of a subvention from the state. As it was explained to me, the State paid the first €350.00 of the individual worker salary. This was then topped up by the company to bring the individual’s weekly pay up to whatever figure would represent his normal Nett (take-home) pay. This was €690. In theory, the Complainant is therefore not at a loss from week to week as his take home pay is what it would have been in a normal, non-covid, period. The Complainant put together a very helpful appendix (2) setting out his calculations and I note therefrom that what was happening was that the state money of €350.00 together with the Respondent top up of in and around €374.00 gave rise to a gross payment of circa €724.00 which has a nominal tax deducted from it giving a take home pay of circa €693.00. It seems that the tax was paid on the Respondent portion of the salary and not on the €350.00 payment provided by the Government. There was therefore a tax liability accruing as tax would eventually be re-cooped on the Government element.. I am satisfied that parties availing of the TWSS and PUP payments were all aware that there would be a further tax liability which was to be deferred. In his evidence, the Complainant confirmed that he was aware that there was going to be a tax liability, but I do accept that he had no idea of the amount involved until after he had left the company at which time in January 2021 the complainant was advised he had a tax bill in the amount of €2,448.00. The Complainant went to his Employer to ask them to discharge or help discharge this bill and they refused. It is crucial to note that the Complainant argues that he continued to perform a full working week for the duration of the pandemic. Whilst there may be some argument in respect of a couple of weeks (e.g. weeks 15 and 16 where there was nett salary pay but no work) it seems to be accepted by the Employer that he did indeed work his regular hours and he worked in presumably worrying and difficult circumstances. Having established this fact, the Complainant argues that he should have been paid the full week salary of €917.00 which would have meant he was paying the correct tax liability. The Complainant says he never consented to the deduction that in reality took place. There was no conversation and he was effectively bounced into the arrangement. The monies deducted represented the tax liability that the Complainant was presented with in January 2021. In their defence, the Respondent said it was a very fluid time, everything was up in the air. The Respondent naturally availed of the Government interventions as this was the safest course of action where there were so many unknowns. I fully accept the evidence of Ms. O’S that the objective was to preserve jobs and stay afloat. On balance however, I am inclined to agree that the Complaint herein is well founded. The decisive factor is the fact that the Complainant worked his full hours but his pay was, without his consent, deducted contrary to the Payment of Wages Act 1991. The last deduction occurred on the 29th of July 2020 which just falls within the time frame of six months prior to the date of the issuing of the Complaint. The totality of the deduction accrues on that date. I do not need to consider the question of reasonable cause. Having found that the complaint is well-founded it is open to me to direct that the employer pay to the employee compensation of such amount (if any) as I think reasonable in the circumstances. In my calculations it should be noted I have taken into account the fact that the Complainant was paid for two weeks where he worked no hours. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00042203-001 – The Complaint is well founded and I direct that the Respondent pay to the Complainant the sum of €1,800.00 |
Dated: 23rd February 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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