Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Lucy O'Neill Mason Hayes & Curran

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-00037809-001

18/06/2020

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

CA-00038826-001

20/07/2020

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

CA-00038826-002

20/07/2020

The Complainant is seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 and has submitted that he was underpaid €376.82 on the 28th May 2020 (CA-00040502-001).

The Complainant is seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 and has submitted that he was underpaid €504.33 on the 25th June 2020 (CA-00040502-002).

The Complainant is seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 and has submitted that he was underpaid on the 30th July 2020 by €550.09 and the 27th August 2020 by €155.66. (CA-00040502-003).

Complaints CA-00037809-001, CA-00038826-001, CA-00038826-002 are duplications and were withdrawn.

The Complainant commenced employment with the Respondent Company on the 9th November 2015 2023. The Complainant was employed as a CSC office hardware support specialist and his net pay was €2,330.26 per month.

The Complainant has submitted that his salary was illegally reduced on the 28th May 2020 by €376.82, on the 25th June 2020 by €504.53, on the 30th July 2020 by €550.09 and the 27th August 2020 by €155.66. The total under payment was €1,587.10.

The Complainant submitted that he was informed by the Respondent at a meeting on the 30th April 2020 that due to the pandemic there was to be a reduction of both working hours and salary by thirty percent.

In essence, the Complainant has submitted that the changes to his contract of employment wherein there was unilateral reduction of working hours and salary were not legal as they had to be agreed by both the Complainant and Respondent and he never agreed to same.

Following the hearing of the matter, the Complainant sent an email to the WRC on the 30th March 2021 summarising the nature of his Complaints and effectively seeking compensation for the underpayment of 90 days when he was on reduced working hours.

Ultimately, the Complainants employment with the Respondent on the 13th July 2021.

These Complaints were received by the Workplace Relations Commission on the 20th October 2020.

The Respondent accepts the background facts and timeline in relation to the Complainant’s employment.

The Respondent submitted that due to the onset of the pandemic, they reduced employees hours of work by thirty percent with a proportionate reduction in pay. This temporary reduction was between the 11th May 2020 and the 10th August 2020. The reduced hours program was implemented in all jurisdictions where the Respondent provided services and affected approximately 5000 employees. The Respondent stated this operational measure meant that redundancies were avoided during the worst of the pandemic.

The Respondent accepts that it would have been preferable to go through a formal consultation process before the introduction of the reduced hours program but these were unprecedented times and the Respondent continued to consult with employee representatives for the duration of the said program.

The Respondent stated that on the 26th February 2021 employees with more than one years service received a goodwill gesture payment of 10 additional days and this amounted to €847.00 gross to the Complainant.

The Respondent submitted that the Complainant was paid in full for the hours that he worked for the duration of the temporary measures. The Respondent denies that  it paid the Complainant less than the amount due or made an unlawful deduction from his wages and his Complaints are limited to that aspect.

In response to the Complainants aforementioned email of the 30th March 2021, the Respondent further submitted that they accepted that the Complainants hours of work were temporarily reduced with a proportionate reduction in pay and he did not agree to these temporary measures. Further, the Respondent submitted that following the hearing of this matter that the Complainants complaints are misconceived as he is seeking a finding in relation to the alleged unilateral breach of his employment contract.

It is the Respondents position that the Complainant was paid for all the hours that he worked for the duration of the temporary measures and accordingly there was no unlawful deduction from his wages and accordingly these Complaints must fail.

I have carefully listened to the evidence tendered and submissions, both oral and written, made in the course of the hearing of this matter and after the hearing by both parties.

It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions for the material time of this complaint.  Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee 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, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment 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:  Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i)any payment in respect of expenses incurred by the employee in carrying out his employment, (ii)any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii)any payment referable to the employee's redundancy, (iv)any payment to the employee otherwise than in his capacity as an employee, (v)any payment in kind or benefit” 

Section 5(1) of the Payment of Wages Act 1991 provides: “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 2 provides “ An employer shall not make a deduction from the wages of an employee in respect of (a) any act or omission of the employee, or (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and (iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

 (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof, (II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991. 

Each case will turn on its own particular facts and in the instant case, it will be necessary to ascertain (1) whether the temporary reduction in pay was accepted by the Complainant (2) was there an unlawful deduction from the Complainants  wages  and (3) has there been a contravention of Section 5 of the Act.

Turning to the first issue, it is accepted by both parties that temporary reduction in pay was not accepted by the Complainant.  In the case of  Cowey -v- Liberian Operations Ltd (1996) 2 LLR 45, it was stated that what is contractual, and not merely a work practice, may not be varied unilaterally .. such variation must be agreed between the parties regardless of whether the term is express or implied

The Respondent accepts that it would have been preferable to go through a formal consultation process before the introduction of the Reduced Hours program. Further, the Respondent accepts that the Complainant refused to accept the temporary reduction but it was implemented on the 11th May 2020.

 It is well established law that “Terms can be implied into a contract of employment in a variety of ways - such as by statute, by law, by custom and practice and by the conduct of the parties.  Once a term is implied into a contract, it will have the same effect as if it was written down and expressed between the parties.” (Regan & Murphy Employment Law, Bloomsbury, 2nd Edition [2017], Paragraph 3.48)

I am therefore satisfied on the balance of probabilities that the Complainant has established contractual entitlement to his payment as per his contract of employment and no other terms had been implied. I am further satisfied that the unilateral reduction of the Complainants wages constituted a contravention of Section 5 of the Payment of Wages Act 1991 and an unlawful deduction from his wages.

Section 6 (2) of the Payment of Wages Act, 1991 provides:

 Where a rights commissioner decides, as respects a complaint under this section in relation to a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances..

I am satisfied that these Complainants are well founded but taking into consideration the extraordinary circumstances the Respondent faced in light of the pandemic and that the Complainant, along with other employees, received a good will gesture of €847 which was paid on the 26th February 2021, I find that it is reasonable in the circumstances for the Respondent to pay the Complainant the sum of €500.00.

I find that the Complaints (CA- CA-00040502-001, CA-00040502-002, CA-00040502-003) made pursuant to Section 6 of the Payment of Wages Act, 1991 are well founded and award the Complainant the sum of €500.00.