Complainant

Respondent

Parties

Thomas Carmody

Mondelez Ireland Production Ltd

Representatives

Colleen Minihane, SIPTU

Sophie Crosbie, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052306-001

18/08/2022

The respondent is a chocolate crumb processing plant in Rathmore, County Kerry.  The complainant commenced there in August 2010 as a general operative.  On Saturday, February 12th 2022, his wife tested positive for Covid-19 and he phoned a section manager in the plant to inform him.  The complainant was then absent for six days and he was deducted six days’ wages as a result.  His complaint is that he remained out of work on the advice of the company’s occupational health nurse and that he was entitled to be paid.

In a submission which she provided in advance of the hearing, Ms Minihane set out the complainant’s case that he was entitled to be paid Covid pay from the company when he was at home during the week that his wife tested positive for Covid-19. 

The complainant was due to start a week of night shifts at midnight on Sunday, February 13th 2022.  When he phoned the section manager on Saturday, February 12th to let him know that his wife had tested positive for Covid, he was advised to contact the respondent’s occupational health service in Dublin.  This service wasn’t available at weekends and the complainant left a voice message on the answering machine.  Ms Minihane said that a nurse phoned the complainant on Monday at 13.36 and advised him to remain out of work until Friday, February 18th.  She told the complainant that she would ring later in the week to see how he was getting on. 

On the afternoon of Wednesday, February 16th, another nurse from the occupational health department phoned the complainant.  In his evidence, he said that he told the nurse that his wife was still testing positive.  Ms Minihane said that the complainant expressed his concern about what he should do.  The nurse phoned again an hour later and she also spoke with the complainant’s wife.  As his wife was due to be out of isolation on Sunday, February 20th, the nurse advised the complainant that he could return to work on Monday the 21st.  However, on the Friday before he was due to return, he got a telephone call from his section manager telling him that he wouldn’t be paid for the duration of his absence and that three days’ holidays that he had remaining would be used to offset three of the six days on which he was at home.  The complainant did not consent to the use of his annual leave in this manner, but the holidays had already been processed by the payroll department.  The following week, his holidays were restored and the equivalent amount was deducted in wages.

On Saturday, February 19th, Ms Minihane said that the complainant sent a copy of his close contact details which he had uploaded to the HSE’s Covid portal to the company’s Covid WhatsApp function. 

On his behalf, the complainant’s shop steward made enquires with the management about the deduction in his wages, in circumstances in which he was advised by the occupational health nurse to stay at home.  The result of this intervention was a letter from the factory manager on July 29th 2022 in which the manager said that no money was owed to the complainant for the following reasons:

§  He had not tested positive for Covid-19;

§  In February 2022, close contacts were not required to self-isolate;

§  The company’s sick pay scheme is discretionary;

§  The scheme does not cover child-minding requirements.

The Complainant’s Case that he is Entitled to be Paid

In her submission, Ms Minihane referred to section 5 of the Payment of Wages Act which deals with deductions from earnings.  She argued that the complainant’s wages for his six days of absence in February 2022 were “properly payable,” in accordance with section 5(6) of the Act.

The complainant had been advised by the respondent’s occupational health department to remain at home and he was not advised until February 18th that he would not be paid.  Ms Minihane said that, if the complainant had been informed that he was at risk of not being paid, he could have made alternative arrangements.  She said that the complainant was not offered the option of taking force majeure leave.  Also, he was treated differently to the shop steward, who was paid when he was absent in January 2022 when he was a close contact of a person with Covid-19.

Case Law

In support of the complainant’s case that he was entitled to be paid his wages when he was absent arising from his wife testing positive for Covid-19, Ms Minihane referred to the following precedents:

ADJ-00012241:  A General Operative v A Wholesaler of Hardware

The employer in this case withdrew the benefit of a discretionary sick pay scheme.  The adjudication officer found in favour of the complainant.  In the case of the complainant in the instant case, he was not informed of the reason for the deduction until five months later and, contrary to any fair procedure, he was not offered an opportunity to appeal.

ADJ-00034631:  An Employee v A Public Transport Company

In this recommendation, having concluded that the terms of the company’s sick pay scheme were not explicit, the adjudication officer found in favour of the complainant.  In the case we are considering, the criteria for the payment of Covid-19 benefit were not explicit.  There was no site notice in place in February 2022.  The complainant followed the advice of the occupational health nurse and was then penalised.

In his evidence, the complainant said that he spoke with the occupational health nurse on Monday, February 14th and he told her that his wife was Covid-positive and was self-isolating.  He said that the nurse advised him to stay at home because there were too many variants of the virus in circulation.

A nurse phoned again twice on Wednesday and the complainant said that the nurse said that she couldn’t understand how he hadn’t tested positive at that stage.  The nurse also spoke to the complainant’s wife.  On Wednesday evening, the complainant said that he tried to send details of his and his wife’s status to the HSE portal, but the system was down.  He said that he uploaded the details on Saturday, February 19th and that he sent a copy to the company on its Covid-19 WhatsApp function.

The complainant said that he has two children aged five and eight, and that he had to take care of them when his wife was self-isolating.  He said that he understood that he would be entitled to Covid pay. 

In a submission at the hearing, Ms Crosbie said that the company operates a sick pay scheme which was collectively agreed with the union.  In March 2020, they introduced temporary, discretionary Covid pay for employees who were sick or who were required to self-isolate in accordance with HSE guidelines.  Covid pay was not subject to a collective agreement, but was a discretionary payment, introduced and removed at the discretion of the respondent. 

At a union meeting on November 11th 2021, the company confirmed that Covid pay would continue to be paid for those who were required to be absent or to self-isolate in accordance with public health guidance.  Covid pay was not paid to any employee who needed to stay at home to care for children. 

At midnight on January 14th 2022, the government introduced major changes to rules about self-isolation and testing.  These changes can be summarised as follows:

§    People who were fully vaccinated, who had received booster vaccinations and who were close contacts of someone with Covid-19 did not have to self-isolate for five days if they had no symptoms of the virus;

§    Those without booster vaccinations had to restrict their movements for seven days;

§    The isolation period for those testing positive for Covid-19 was reduced from 10 to seven days;

§    People between the ages of four and 39 did not have to confirm a positive antigen test with a PCR test and positive antigen test results could be uploaded to the HSE website;

§    On January 22nd 2022, the requirement for social distancing and the production of Covid-19 vaccination certificates in public places was ended.

On Sunday, February 13th, the complainant was scheduled to start five night shifts from midnight to 8.00am.  The day before his shift, he phoned the section manager to inform him that his wife had tested positive for Covid-19.  The manager advised the complainant to contact the occupational health service to see what he should do.  The complainant contacted occupational health and on Monday, February 14th, a nurse advised the management in Rathmore that the complainant was a close contact of a person with Covid-19 and that a “social situation is preventing attendance at work.”  The company’s position is that the instruction to the occupational health staff was to give people the advice recommended by the HSE and not to stray from that advice.  When the complainant contacted the nurse on Monday, February 14th, the public health advice was that fully vaccinated people were not required to self-isolate if they were close contacts.  Ms Crosbie said that this advice was issued to staff in a notice at the time.

On Wednesday, February 16th, a different nurse phoned the complainant and also spoke to his wife, who said that she was sick and that the complainant was her carer.  A copy of an email submitted in evidence shows that the nurse advised the complainant’s wife that, as he was not testing positive for Covid-19 and, as he was vaccinated, that, in accordance with HSE guidelines, he did not need to restrict his movements.  The email notes that the nurse said that the complainant’s wife disagreed and said that he should receive Covid pay.  The nurse recommended to the complainant’s wife that she provide written notification from the HSE regarding her Covid-19 status and the complainant’s close contact status.

In the week commencing February 19th, the complainant was paid only for three days’ holidays.  The following week, the holidays were reinstated and the equivalent in wages was deducted.

The company has no record of information being sent to the HSE by the complainant.  In consultation with the occupational health service, the management decided that the complainant’s wife was able to self-isolate on her own and that he was not required to restrict his movements and that discretionary Covid pay did not apply.  Ms Crosbie said that this was in line with the information provided to the union at a local meeting the previous November.

The impediment to the complainant being at work appears to be his responsibility for his children while his wife was self-isolating.

When the issue was raised by the union, the complainant was given the option of using up his remaining three days of annual leave, but he declined this, and asserted that he was entitled to Covid-19 pay.  He also had the option of taking force majeure leave, but he did not avail of this option either.

Between May 16th and July 30th 2022, Covid pay was phased out in the company, and the benefit was restricted to those who tested positive on an antigen test which was registered with the HSE for a maximum of five days.

The Claim under the Payment of Wages Act 1991

Referring to the provisions at section 5 of the Payment of Wages Act, Ms Crosbie said that the essence of a claim under the Act is that to be entitled to wages that are “properly payable,” an employee must be available for work.  The complainant was not available for work during the week in question and therefore, he was not entitled to be paid his wages.  Ms Crosbie submitted that a dispute about whether an employee is entitled to a discretionary payment is not a dispute about wages, because the Act defines “wages” as,

…any sums payable to the employee by the employer in connection with his employment, including -

(a)  any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment, or otherwise[.]

In the complainant’s case, he was not sick, he declined the option to take holidays and, Ms Crosbie submitted that a question arises whether the disputed Covid pay is an emolument, as intended by the legislation.

Ms Crosbie referred to the decision of the High Court in Dunnes Stores (Cornelscourt) v Lacey[1], where the Court held that any consideration under the Act must first determine the wages which were properly payable on the occasion.  In its decision in UCC v Finbarr Waldron[2], the Labour Court followed this approach and stated that, in consideration of a complaint about an illegal deduction from wages, its first task was to make a determination by reference to objective criteria, regarding the wages that are properly payable.

Concluding her submission for the respondent, Ms Crosbie asked me to find that this claim is not well founded for the following reasons:

§    The complainant was not available for work on his properly notified shifts;

§    He decided to remain at home, despite the public health advice that he was not required to self-isolate, and confirmation of this being provided by the occupational health consultant;

§    Covid pay was a discretionary payment for employees who were ill with Covid-19 or who were required to isolate in accordance with HSE guidelines.  Neither of these situations applied to the complainant.

§    The complainant declined the opportunity to avail of other forms of statutory leave such as holidays or force majeure leave.

In his evidence, the site manager, Mr Collins said that he received the initial confirmation from the occupational health service by email on Monday, February 14th at 13.52.  In this email, the nurse said that “a social situation” was preventing the complainant from being at work.  Mr Collins said that he phoned the nurse on Tuesday and asked her to follow up with the complainant regarding the social situation.  When he received the email from the nurse on Thursday, February 17th in which she confirmed that she told the complainant that he did not need to self-isolate, Mr Collins decided not to pay the complainant.  Mr Collins said that the complainant’s line manager phoned the complainant the following morning to let him know. 

Mr Collins said that wages are paid for shifts from Saturday to Friday and that wages are processed on Mondays.  Pay day is Thursday.  Pay slips were provided by the respondent after the hearing of this complaint and these show that, on Thursday, February 24th, the complainant received €809.76 gross in respect of 28 hours’ holiday pay.  This amount was deducted from his pay on Thursday, March 3rd.  In total, from his wages on February 24th and March 3rd, six days’ wages were deducted, to the value of €1,345 gross and €809.76 net.

The Relevant Law

This complaint has been submitted under the Payment of Wages Act 1991 (“the Act.”).  In her submission, Ms Crosbie referred to the definition of wages at section 1 of the Act:

[W]ages in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including -

(a)  any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment, or otherwise, and,

(b)  any sum payable to the employee upon the termination by the employer of his contract without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

Employers are responsible for deducting tax, social insurance contributions (PRSI) and the universal social charge (USC) from the wages of their employees and for remitting these payments to the exchequer.  Other deductions, such as pension contributions, club subscriptions and savings may also be deducted from wages and section 5(1) of the Act sets out the parameters according to which such deductions may be made:

(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.

It is clear from this section that, apart from statutory deductions of tax, PRSI and USC, before any other deduction is made from an employee’s wages, written consent must be given.

Section 5(6) addresses the circumstances in which wages which are properly payable are not paid:

(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.

From this, we understand that, where wages are properly payable, the failure of an employer to pay such wages is an illegal deduction.  The issue for consideration in respect of the complainant is, were his wages properly payable and was he legally entitled to Covid pay when he was absent from work to take care of his children due to his wife testing positive for Covid-19?

Findings

A key issue in dispute in this case is the complainant’s evidence that, on Monday, February 13th, he was instructed by the occupational health nurse to stay at home.  The email from the nurse to Mr Collins on that day at 13.52, indicates that the complainant was at home due to “a social situation.”  The nurse did not say that she told the complainant to stay at home and she simply stated that a “social situation is preventing attendance at work.”  It is clear to me from this email that the nurse did not instruct the complainant to stay at home, but that she understood the reason for him not being at work.

In a second email from the occupational health team on Thursday of that week, another nurse reported that she had a conversation with the complainant’s wife on Wednesday, and that there was a discussion about pay.  The nurse reported that the complainant’s wife said that her husband should be “on the Covid payment.”  From this, it is apparent that there was some discussion about pay and the possibility that the complainant would not be paid.

By February 2022, Covid-19 restrictions had been lifted to a considerable extent and close contacts were not required to isolate.  The respondent’s position is that its approach to Covid-19 absences mirrored the HSE’s guidelines, and that, by mid-February 2022, when close contacts were not required to isolate, employees who were close contacts should come to work.

Considering the changes to the HSE’s guidance regarding close contacts, it seems to me to be highly unlikely that, on Monday, February 14th, the complainant was instructed by an occupational health nurse to stay at home.  It is my view that the complainant prioritised the needs of his family over his obligation to attend work, and that his absence was not recommended or approved by anyone in the occupational health department.

I have considered the precedents submitted by Ms Minihane in support of the complainant’s case.  In her decision, ADJ-00012241, A General Operative and A Wholesaler of Hardware, the adjudicator found in favour of the complainant when the respondent had not initiated a disciplinary investigation before its decision not to pay sick pay to an absent employee.  This decision is not useful for the complainant’s case because he was not absent due to illness, he was not entitled to sick pay and I find no evidence that the respondent failed to comply with its own procedures.  ADJ-00034631, concerning An Employee and A Public Transport Company was a recommendation under the Industrial Relations Act 1969.  While the adjudicator found in favour of the employee, she did not conclude that he was legally entitled to sick pay, which had not been paid in accordance with the full benefit provided for in the respondent’s scheme.

Conclusion

The complainant said that he did not attend work because his wife was self-isolating and he had to take care of their young children.  I accept that the complainant had a responsibility towards his family; however, I recognise also that force majeure leave is specifically intended for situations like this.  In accordance with section 5(6) of the Payment of Wages Act, my task is to consider if, by not allowing him to avail of its Covid pay benefit, the respondent made an illegal deduction from the complainant’s wages.  Following the guidance of the Labour in UCC v Waldron (footnote 2), my first task is to consider if the Covid pay which the complainant claims he should have been paid while he was absent was properly payable.

The respondent’s position is that employees were entitled to benefit from its Covid pay scheme in line with the HSE’s guidelines on self-isolation for infected persons and close contacts.  By mid-February 2022, there was no requirement for close contacts who had been vaccinated to isolate.  When his wife tested positive for Covid-19 on February 12th, the complainant was not required to stay at home.  The complainant’s case is that he was instructed to stay at home by a nurse in the company’s occupational health service, but this doesn’t make sense, because the nurses who engaged with the complainant were fully aware of the changes to the guidelines, and there is no evidence that they told the complainant to stay at home.  All the evidence points to the complainant and his wife telling the nurses that he was staying at home and that he was entitled to be paid.

The company’s Covid pay scheme is not a statutory scheme, it was not negotiated between the company and the union and it does not form part of the complainant’s contract of employment.  It follows therefore, that, when he was absent from work for six days in February 2022, the complainant was not legally entitled to Covid pay.  As he had no legal entitlement to be paid while he was out of work due to his wife’s illness, the complainant’s wages were not properly payable and there can have been no illegal deduction from wages which were not due.

As I have concluded that there was no illegal deduction from the complainant’s wages, I decide that this complaint under the Payment of Wages Act 1991 is not well founded.

Illegal deduction from wages, wages properly payable