FULL RECOMMENDATION
PARTIES : SHANNONS SOLICITORS DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00029051 CA-00038770-001 BACKGROUND: DETERMINATION: Background The Appellant contends that she was employed by the Respondent from 10thFebruary 2020 until 22ndJune 2020. The Respondent contends that the Appellant was not employed by it under a contract of service at any material time and was engaged in an internship or work experience programme from November 2019. In the submission of the Respondent, she remained in such an internship or work experience programme until its termination on 26thMarch 2020. The internship or work experience programme was unpaid until the Respondent decided, in February 2020, to pay a stipend to her in acknowledgement of the work she was doing in the Respondent firm. The Appellant submitted that whereas she was involved in a form of unpaid internship from November 2020; she was offered and accepted employment with the Respondent with effect from 10thFebruary 2020 and that the salary offered to her and accepted by her was €20,000 per annum from that date. No matter concerning the nature of the relationship between the parties from November 2019 to 10thFebruary 2020 was before the Court. The Appellant contends that the wages properly payable to her in March 2020 were €1,153.84 but that, on the occasion, the Respondent paid to her an amount of €798.81 and that the difference amounted to a deduction within the meaning of the Act. It is clear that the matter before the Court will, in part, turn on whether the Appellant was engaged by the Respondent from 10thFebruary 2020 as an employee within the meaning of the Act. Summary position of Appellant The Appellant submitted that, following a period of unpaid engagement with the Respondent from November 2019, the Respondent in the person of Vincent Shannon, a senior partner of the Respondent, contacted her at the end of January 2020 to offer her employment as a full-time legal secretary in the Respondent firm. Mr Shannon, in a phone call at that time, offered her a salary of €20,000 per annum in return for a 37.5-hour week commencing on 10thFebruary 2020. She submitted that the job was offered to her by phone call from the Respondent in late January 2020 and that, consequent on that phone call, she terminated her permanent employment with another employer. She worked from 10thFebruary 2020 for three weeks in that month and received a salary payment of €1,153.84 which exactly reflects a calculation of three weeks’ pay based on a salary of €20,000 per annum. She provided the Court with a copy of a pay slip for that period, described on that pay slip as ‘monthly period 2’, provided to her by the Respondent which demonstrated that she was paid €1,153.84 and that the Respondent had paid employer contributions of €101.54 as well as having made deductions from her salary of €8.83 in employee PRSI contributions and €8.07 in Universal Social Charge. She submitted that she worked for three weeks between the 28thFebruary and 26thMarch 2020. She provided the Court with a copy of a pay slip for the period to 26thMarch 2020, described on that payslip as ‘monthly period 3’provided to her by the Respondent, which demonstrated that she was paid €798.81 in respect of the period to that date and that the Respondent had paid employer contributions of €70.30 as well as having made a deduction from her salary of €8.07 in Universal Social Charge. The Appellant submitted that the wages properly payable to her in respect of three weeks work in the period to 26thMarch 2020 were in the amount of €1,153.84 which reflected the annual salary of €20,000 as offered to her by Mr Vincent Shannon in January 2020 and as paid to her in respect of three weeks work in February 2020. She submitted that no provision of a contract of employment permitted a deduction from her wages at the material time. She submitted that, having regard to the Act at Section 5(1), a deduction was made from the wages properly payable to her on the occasion and that deduction from her wages was not required by virtue of statute or any contractual term in a contract of employment or relevant collective agreement. The Complainant submitted that she had not given her consent, written or otherwise, for the deduction to be made from her wages. She provided the Court with an e-mail from a partner of the Respondent on 26thMarch 2023 advising her to make a claim against the Department of Social protection but assuring her that she would be paid “for the three weeks you worked in March”. The Appellant also provided the Court with a letter dated 6thJuly 2020 from the Respondent which stated that she had “worked in this office from 29thNovember 2019 to 24thMarch 2020 as a legal intern and then a Legal Secretary. Due to Covid staff were let go at this time and her employment officially ended on June 22nd2020” She submitted that in the period in question she provided general secretarial assistance, production of correspondence and dictaphone work as well as supporting a partner and on occasion covering the main reception area of the practice. She said that she held more responsibility as an employee than she had as an intern / work experience participant previously. She submitted that she was required to complete a period of self-isolation due to Covid 19 from 24thMarch 2020 until 7thApril 2020. On the 22nd June 2020 she spoke with Vincent Shannon on the phone and he told her that the Respondent no longer had a job for her and advised her to continue to claim the pandemic unemployment payment (PUP). Summary position of Respondent The Respondent submitted that the Appellant was not at any time or at all engaged under a contract of service giving rise to an employer / employee relationship and consequently no breach of the Act as alleged could have occurred. She had made unsolicited contact with the Respondent in November 2019 and a non-remunerative work experience placement was discussed. Upon accepting the placement, it did not give rise to a contract of employment. When asked by the Court to comment on the letter of the Respondent dated 6thJuly which asserted that the Appellant worked in the office until 24thMarch as a legal intern and then as a legal secretary and that her employment officially ended on June 22nd2020, the Respondent’s representative submitted that this letter was by way of a reference. He agreed that a reference document was a serious document and that a person reading its content was entitled to believe that it was true. The Court asked the Respondent’s representative to comment on the proposition that the payment made to the Appellant on 28thFebruary 2020 was the exact amount which would have been due to be paid to her in respect of three weeks work had she been engaged on a salary of €20,000 as she alleged from 10thFebruary until 28thFebruary 2020. The representative submitted that if this was the mathematical reality it was, according to his instructions, a co-incidence. Mr Vincent Shannon, a senior partner, gave evidence on behalf of the Respondent. He said that the Appellant was never an employee. He said that he could not recollect a telephone conversation with the Appellant at the end of January and stated that he did not offer her employment on a full-time basis. He accepted in evidence that the Appellant did work for 37.5 hours per week and that she carried out the tasks as described by her in her submission with effect from 10thFebruary 2020 and that she did work more intensively in the period after 10thFebruary than she had previously. He stated that the Respondent’s letter of 6thJuly 2020 was ‘not completely accurate’, that he was trying to oblige the Appellant, and, in that context, he had felt it appropriate to ‘gild the lily’in terms of her role with the Respondent. He had felt in February 2020 that it was not fair to have the Appellant in the office on work experience and to be receiving no remuneration. He felt that an ex-gratia or stipendiary payment should be made to her. He stated that the accountant for the Respondent handled all matters with associated with payments to the Appellant and that he could not give evidence as regards calculations or deductions from the payments made to her in February or March 2020. When questioned by the Court he could not clarify when the Appellant had been advised as to why a payment would be made into her bank account in February 2020 but believed that she must have been so advised by him. 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 in Marek 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. It is common case that the Appellant worked for 37.5 hours per week in the Respondent firm with effect from 10thFebruary 2020 and at the material time. According to the Appellant she was working under a contract of service following an offer of employment made to her by Vincent Shannon in a ‘phone call in late January 2020. According to Mr Shannon, he could not recollect a phone conversation with the Appellant at the end of January. In any event he stated in evidence that no offer of employment was made to her at that time or at all. It is a mathematical fact that the payment made to the Appellant on 28thFebruary was in the exact amount which would have been due to her had she, as she alleged, accepted an offer of employment commencing on 10thFebruary on a salary of €20,000 per annum. It is also a fact that in a letter dated 6thJuly the Respondent did record the fact that the Appellant had worked for the Respondent as she alleged as a Legal secretary and that her employment had, as she alleged, been terminated on 22ndJune 2020. There is no dispute between the parties that the Appellant carried out the tasks and duties which she alleged she had carried out on behalf of the Respondent with effect from 10thFebruary 2020. In all the circumstances, the Court concludes that the amount of the payment made to the Appellant in February 2020 was not a co-incidence. It was an exact calculation of the wages which would have been due to her arising from a salary of €20,000 per annum. In those circumstances, the Court concludes that the payment was, as the Appellant alleges, a salary payment arising from a contract of employment within the meaning of the Act. The Court is fortified in this conclusion by the fact that the accountant for the Respondent made statutory deductions and payments appropriate to an employer and employee when calculating the payments to be paid to the Appellant in both February and March 2020. For these reasons the Court concludes that the Appellant was engaged by the Respondent under a contract of employment within the meaning of the Act with effect from 10thFebruary 2020. The Court further concludes that the wages properly payable to the Appellant in respect of the three weeks which she worked to 26thMarch 2020 were, as she has alleged, in the amount of €1,153.84. The wages actually paid to the Appellant on the occasion amounted to €798.81. The Court concludes that difference between the amount properly payable to her on the occasion and that actually paid amounted to a deduction in the amount of €355.03. No submission has been made to the Court that the deduction made from the wages properly payable to the Appellant on the occasion were required or authorised by statute or the contract of employment or that such deduction was the subject of prior consent given by the Appellant. In those circumstances, the Court concludes that the deduction amounted to a breach of the Act at Section 5(1). Decision
NOTE |
