Complainant

Respondent

Parties

Joyce  Jein

Alzheimer Society of Ireland  t/a The Birches Alzheimer Day Centre

Representatives

Ms Taggart BL instructed by Conor MacGuill ,Solicitor , Conor MacGuill Solicitors

Mr S. O’Sullivan BL instructed by T.P Robinson Solicitors

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-00052210-001

11/08/2022

The issue in contention concerns a claim for Arrears of Pay that the Complainant alleges that she is due - dating back to her first appointment in 2012.

The amount claimed was stated to be in the region of €47,900.

The employment as a Care Assistant began on the 22 November 2012 and continues.

The rate of pay at the date of the hearing was stated to be €16.63 per hour for a 39.5-hour week.

The Complainant made an Oral testimony and was represented by Ms Taggart BL.

The employment began in November 2012 at a rate of €11.80 per hour. This was increased to €12.29 in October 2019, again in October 2020 - €14.42 and October 2021 to €16.63.

In 2012, a colleague, Ms NH, joined at a rate of €13.11 eventually reaching €19.15 in October 2021. A Ms PH had begun in January 2008 on an hourly rate of €13.14. Both were Care Assistants.

The Complainant strongly maintained that there was absolutely no practical or realistic difference between the jobs carried out by the three staff. She maintained that she should have been given pay parity with these colleagues.

She had provisionally accepted a pay rate (€16.78) offered by Ms S. O’C on the 21st January 2021 but subject to the proviso that her final agreement was contingent on her arrears claim being satisfactorily resolved. This did not happen, and the Complainant referred the complaint to the WRC.

The Respondent gave an Oral Testimony from Managers, Ms H and Ms K. The chief spokesperson was Mr O’Sullivan BL.

The Respondent made three major points.

Firstly, the subject of the Complainant’s hourly rate had been the subject of considerable local discussions since 2020. A Full Grievance Procedure with Senior Management had been followed in early 2021 with the outcome known by the 10th March 2021. The issue of the outstanding “Back Pay” appeared to be a major sticking point for the Complainant.

In parallel with this process the HSE, the principal funding body, had sanctioned a range of payments which were being implemented for all Care Assistants. This was following a WRC Conciliation Agreement between FORSA and the Society.

Secondly the Respondent argued that the Payment of Wages Act,1991 is not the correct vehicle for a claim of this nature. Section 5 of the Payment of Wages Act discusses “Deductions” from the Rata of Pay “properly payable”.

This case is at the most basic an Industrial Relations case regarding a wage negotiation. The Complainant quite properly made a wage claim and negotiations took place. It was never about Deductions from a current rate of pay. Accordingly, the complaint is misplaced.

In addition, the Complainant makes extensive reference to “Comparators” Ms PM and Ms NH. Reliance on Comparators is a feature of the Employment Equality Act ,1998 process. The Respondent argued that these comparators were not realistic as they had both been recruited on different pay rates according to the financial position of the Society at the time. In Industrial Relations terms this was an issue at the time of the complaint, but it was not a Payment of Wages Act,1991 matter.

Finally, the Respondent pointed to the effective or “cognisable” reference periods under the PoW Act,1991. Under Law the Complainant cannot seek to have Payments considered that fall before 12 months from the date of her WRC referral i.e., 12 months back from the 11th August 2022 i.e., back to the 12 August 2021. A claim going back to the start of the employment in 2012 is clearly “Out of Time.”

In cross examination between the Parties much of the above was discussed at length.

3:1        Opening Observations of Adjudication Officer.

It was clear that this was a difficult case for all sides. The Complainant was a valued worker with an excellent record. The Respondent was a HSE and voluntarily funded Organisation that was not totally free to implement pay rates as they might feel appropriate. The Grievance Process had been fully implemented and the Outcome while favourable on pay rates was not able to deal with the Arrears claims of the nature being pursued by the Respondent.

In discussion it may have appeared that a different piece of employment legislation than the Payment of Wages Act ,1991 might have been a more appropriate avenue for the Complainant.

3:2        Legal Position Payment of Wages Act,1991

Section 5 of the Payment of Wages Act,1991 is set out below.

Regulation of certain deductions made, and payments received by employers.

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.

Wages is defined as “any sums payable to the employee by the employer in connection with his employment” – Section 1 Interpretation.

In this case the Complainant argued strongly that her rate of pay was in effect in serious error by the Respondents. She was not getting the “proper rate”.  Unfortunately for the Complainant there was no Statutory Rate for Care Assistants that she could point to. Other Assistants had different rates, and this was an Industrial Relations issue with the Respondents.

In an old case quoted by Cox Corbett and Ryan -Employment Law in Ireland 2009 edition at page 435 – Clinton vSt Anne’s National school PW 70/2007 it had been found that the rate of pay was less than the national per diem, but the rate had been accepted on appointment. The employer was deemed to have been carrying out her “obligations properly” and the Complaint was lost. This case, while not exactly similar, is in the same context.

3:3       Adjudication Summary Conclusion.

Regrettably for the Complainant in this case the Payment of Wages Act,1991 is not properly applicable.

The Complaint has to be seen as Not Well Founded.

In plain English this complaint fails.

Payment of Wages Act, Dispute on Correct rate of Pay.