FULL RECOMMENDATION
PARTIES : CAMPHILL COMMUNITIES OF IRELAND T/A CAMPHILL COMMUNITIES DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00030646. The Adjudication Officer decided that the complaint of the Appellant was not well founded. Background to Appeal: It is common case that the Appellant was employed under a contract of employment which stated that her normal working hours were 19 hours per week paid at the rate of €15.00 per hour. In early May 2020 the parties agreed that the Appellant’s normal weekly working hours would, for reasons she articulated in an e-mail to the Respondent, be 10 hours per week from that time onwards. Her pay was adjusted to reflect the new weekly working hours of the Appellant. The Appellant continued to work and be paid in respect of 10 hours per week at the rate of €15.00 per hour until it was agreed in September 2020 that she would revert to her contracted normal weekly working hours of 19 hours per week with effect from 28thSeptember 2020. Her pay was adjusted accordingly at that time. The Appellant makes no complaint that any unlawful deduction was made from her wages between May 2020 and 1stJuly 2020. The Appellant submitted that she had, in June 2020, sought a reversion to 19 hours per week with effect from 1stJuly 2020 but that the Respondent had not agreed to that. The Respondent submitted that no request had been made by the Appellant in June 2020 to revert to her contracted hours of 19 hours per week and that the matter had been considered only in September 2020 at which time it was agreed that the May 2020 agreement would come to an end and that the Appellant would return to working 19 hours per week and that she would be paid accordingly. Neither party offered sworn evidence on this conflict on matters of fact to the Court. The Court clarified to the parties at the hearing that it was for them to make their case as they might choose and for them to decide whether to call a witness or not to give sworn evidence. Both parties decided not to call witness evidence before the Court. The Appellant claims that the Respondent made deductions from her wages from 1stJuly 2020 to 28THSeptember 2020 which were unlawful. The Law: The Act at Section 5, in relevant part, 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. and 5(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. Summary position of the Appellant: The Appellant was employed by the Respondent from October 2018 and her contracted hours were 19 hours per week to be paid at a rate of €15.00 per hour which amounted to €570.00 per fortnight. Following engagement between the parties and arising from childcare issues at the time she agreed in May 2020 that her working hours would thenceforth be 10 hours per week. The Appellant approached the Respondent in June 2020 to say that her childcare issues had resolved themselves and that she wished to return to an arrangement in line with her contract whereby she would be engaged for 19 hours per week. The Respondent refused to restore her hours until 28thSeptember 2020. A deduction equivalent to nine hours pay per week was made from her wages by the Respondent from 1stJuly 2020 until 28thSeptember 2020 which was not authorised by her prior agreement, required or authorised by statute or the Appellant’s contract of employment. The deduction was therefore unlawful having regard to the terms of the Act. Summary position of the Respondent: The Appellant was engaged under a contract of employment which provided for 19 hours work per week and her rate of pay was €15.00 per hour. On 11thMay 2020 the Appellant e-mailed the Respondent to say that “due to COVID 19 and the unavailability of childcare I am unavailable to meet my full contractual hours. I am in a position to work 10 hours per week at present” It was at the Appellant’s request and not at the Respondent’s direction that her hours were reduced to 10 hours per week in May 2020 and her wages adjusted accordingly. The Appellant’s hours were increased by her to 19 hours per week in September 2020. There was no engagement between the Appellant and Respondent with regard to her hours of work between May 2020 and September 2020. Consequently, there can be no claim under Section 6 of the Act. Discussion and conclusions: In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Mac Grath J. considered Section 5 of the Act as follows: 34. Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where 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, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion. 35. Central to the court's analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation. 36. The provisions of s.5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the Employment Appeals Tribunal. It was argued that the Employment Appeals Tribunal should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p.482: “I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in *138 law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. I insofar as implicit in the determination of the Employment Appeals Tribunal a finding is that the appellant agreed to pay to the respondents service pay and a long service increment then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18 September 2002. In either case there has been an error of law. Accordingly I allow the appeal.” 37. This decision supports the proposition that the first matter which should be addressed by the Labour Court is to determine what wages are properly payable under the contract. This decision makes clear that this Court, when considering a complaint under the Act, must first determine the wages which were properly payable to the employee on the occasion. It is only when that is determined that the Court can proceed to examine whether that amount differs from that which was actually paid on the occasion and whether any difference amounted to a deduction within the meaning of the Act. It is agreed that the Appellant’s contract of employment provided for her to be paid on the basis of €15.00 per hour for 19 hours per week. It is common case however that the Appellant agreed in May 2020 that she would be paid on the basis of €15.00 per hour for 10 hours per week from that point onwards. It is clear therefore and undisputed by the parties that the wages properly payable to the Appellant by agreement with the Respondent from May 2020 onwards was €150.00 per week. The Appellant maintains that she sought to amend the May 2020 agreement in June 2020 so as to revert to a pay arrangement aligned with the terms of her contract of employment. The Respondent contends that no such request was made by the Appellant to the Respondent at that time. Neither party offered witness evidence to the Court to resolve this conflict on matters of fact. It is common case however that no agreement was made in June 2020 to bring to an end or alter the agreement which had been made in May 2020. It is also agreed that the Appellant continued to work for 10 hours per week between 1stJuly 2020 and 28thSeptember 2020 and that she was paid on that basis. The Trade Union asks the Court to accept that her alleged and disputed approach to the employer in June 2020 to revert to the working hours set out in her contract of employment and to thereby bring to an end the agreement made in May 2020 to alter the terms of that contract, had the effect of establishing that from 1stJuly 2020 the wages properly payable to her became 19 X €15.00 per week or €285.00 per week. The Court does not accept the submission of the Appellant in these respects. The agreement of May 2020 altered the terms of the Appellant’s contract of employment and, by common case, established the amount of €150.00 per week as the wages properly payable to the Appellant from that point onwards. The May agreement was, by common case, not altered by agreement until September 2020. The Court concludes that the wages properly payable to the Appellant from 1stJuly 2020 to 28thSeptember continued to be the wages due to her arising from the agreement of May 2020. It is not in controversy that these were the wages actually paid to the Appellant at all material times until September 28th2020. The Court therefore concludes that no deduction was made from the wages of the Appellant at the material time and consequently that her appeal must fail. Decision: For the reasons set out above the Court decides that the Respondent was not, as contended by the Appellant, in breach of the Act. The appeal fails and the decision of the Adjudication Officer is affirmed. The Court so decides.
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