Complainant

Respondent

Parties

Binu  Samuel

Recovery At Home Ireland

Representatives

Barry Crushell, Crushell & Co Solicitors

Robin Hyde, Alastair Purdy & Co

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-00049748-001

19/04/2022

The Complainant is a nurse who was employed by the Respondent from 12th October 2021 to 13th January 2022.

This complaint was received by the Workplace Relations Commission on 19th April 2022.

The Complainant commenced employment with the Respondent on 12th October 2021.  The employment of the Complainant was terminated on 13th January 2022.  The Complainant was employed as a Nurse.  The Complainant enjoyed a salary of €25.00 per hour with the Respondent.  The Complainant has raised a complaint seeking adjudication by the Workplace Relations Commission (WRC) under Section 6 of the Payment of Wages Act 1991.  The Act gives employees the right to a pay slip showing their gross wages and details of any deductions.

The Complainant contends that his issues began a month after he started working for the Respondent.  The Complainant’s issues began because he was not given a time sheet and had to ring, text and email the Respondent numerous times in order to obtain one.  Without a time sheet, the Complainant couldn’t get paid.

The Complainant was supposed to be paid on 1st January 2022.  He received a payslip but was never paid.

The Complainant and other nurses were expected to see many patients every day.  This could take the Complainant anywhere between 12 and 15 hours.  One of the line managers suggested a new policy that the nurses should wait with every patient for 15 minutes after the antibiotics had been administered in order to make sure that they were okay.

The Complainant and some of his colleagues felt that this wasn’t possible given that they had so many patients to see every day.  They suggested reducing the patient load.  This conversation occurred on a Whatsapp group chat.

The CEO, A McD disagreed with this suggestion to reduce the patient load.  A few days after this, she removed the Complainant from the Whatsapp group.  Being removed from the Whatsapp group meant that the Complainant couldn’t get any shifts.

The Complainant contends that nobody formally told him that this employment was terminated.  However, he felt that removing him from the Whatsapp group was a clear indication that he was no longer needed by the company.

The Complainant was never paid for the work that he did.   The Complainant brought this to the attention of A McD and the Payroll Manager on numerous occasions.  He was ignored every time.

Eventually, the Complainant was informed that if he returned his kit bag he would get paid.  The Complainant brought this bag to the office and received a confirmation email that they had received it.   However, the Complainant was still not paid.

A McD blocked the Complainant on Whatsapp.  A McD eventually contacted the Complainant to inform him that a couple of issues had arisen which she wanted to discuss with him and said that she would get Hr to send him an email outlining what these issues were.  The Complainant never received an email.

A few weeks later, the Complainant got an email from a new Payroll Manager, named B, informing him that when he returned his kit bag he would be paid.  The Complainant informed her that he had already returned the bag.  B, said, that she would look into this and get back to him.  The Complainant never heard anything more.

The Respondent owes the Complainant €2,955 in unpaid wages.  This series of events has placed immense stress on the Complainant.

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 there from 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.

The High Court in Marek Balans v Tesco Ireland Limited [2020] IECH 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, the Court would then consider whether that deduction was lawful.  It is the position of the Complainant that unlawful deductions were made and/or that all amounts owed were not properly paid.

We note the decision of the Labour Court was held in the case of Foroige v Kieran O’Connell (PWD 178) that “In Dunnes Stores (Cornelscourt) v Lacey and Nuala O’Brien [2005] IEHC 417, unreported Finnegan P, the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant …. Subsection (6) (a) of Section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction”.

We further note the decision of General Operative v Manufacturing Company (Adjudication Reference ADJ-000235879) the position of the respondent is that they were entitled to withhold payment to the claimant as per the Employee Handbook paragraph “Termination of Employment without Giving Notice, Section A” as previously referred to.  As per the Employee Handbook “if you terminate your employment without giving notice or working the required period of notice you will have an amount equal to any additional costs of covering your duties during the notice period not worked deducted from any termination pay due to you”.  I believe that the position adopted by the Company is not tenable in the context of the Payment of Wages Act 1991.  McGivern v Irish National Insurance Company Ltd PS/1982 EAT stated that “Remuneration is not mere payment for work done but is what the doer expects to get as a result of the work he does insofar as what he expects to get is quantified in terms of money”.  It is the position of the Complainant that the Respondent withheld money properly payable to him, without legal cause.

The Respondent failed to attend the scheduled hearing however the Respondent’s legal representative attended and informed the hearing that the Respondent’s manager who was planning to attend was ill. This information was not supported by medical certification.

The legal representative requested an adjournment of the hearing. This request was denied and the hearing proceeded.

I accept the evidence presented on behalf of the Complainant and now order the Respondent to pay him the sum of €2,995.00. Such payment should be made within 42 days from the date of this decision.

As above.

Payment of Wages Act,1991.