ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043114
Parties:
| Complainant | Respondent |
Parties | Kee Huang Khoo Loh | The Adelaide And Meath Hospital, Dublin Incorporating The National Children’S Hospital Tallaght University Hospital |
Representatives |
| Cait Lynch IBEC |
Complaint:
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-00053502-001 | 01/11/2022 |
Date of Adjudication Hearing: 08/06/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services I confirm I have been asked to deal with same.
The Complainant has brought a complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made.
Section 5 (1) states that an employer shall not make a deduction from an employee unless:
The deduction is required by Statute or Instrument;
The Deduction is required by the Contract of employment;
The employee has given his prior consent in writing;
Section 5 (2) does allow for some limited instances for deduction in respect of an Act or Omission or for the provision of something to the Employee. This might be where the deduction is specifically provided for in the Contract of Employment (and so on notice), the deduction is considered to be fair and reasonable in all the circumstances and the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.
It is noted that any deduction for an Act or Omission aforesaid must be implemented (in full or in part) not greater than six months after the Act or Omission became known.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 1st of November 2022 was submitted within the time allowed.
As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).
Background:
This hearing was to be conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was to be conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. Had evidence been given it would have been in compliance with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came intoeffecton the 29th of July 2021 and which accommodates situations where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint. In such circumstances, an oath or an affirmation may be required to be administered to any person giving evidence before me. It is noted that the giving of false statements or evidence is an offence. The Complaint herein was brought to the attention of the WRC on the 1st of November 2022 by way of a workplace relations complaint form. The hearing date of the 8th of June 2023 was assigned to hearing this case.
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Summary of Complainant’s Case:
The Complainant did not attend. I am satisfied that the Complainant was notified of the date, time and venue for this hearing by a letter sent from the WRC - dated the 3rd of May 2023 - and sent to the address provided by the Complainant on the workplace relations complaint form. From the Complaint form provided, I have discerned that the Complainant seeks to establish that she was discriminated against by the Respondent when she was asked to remove a bracelet which was a family heirloom of cultural significance. |
Summary of Respondent’s Case:
The Respondent had IBEC representation at this hearing. The Respondent provided me with a comprehensive submission outlining the Respondent position. I also note that the three witnesses attended the WRC hearing to given oral evidence in defence of the Employer herein. On the face of it, I noted that the Respondent categorically rejects that there has been any discrimination herein (not a complaint actually raised). There is Hospital wide catering policy prohibiting the wearing of jewellery for Health and Safety reasons. The Complainant was simply being asked to abide by this policy. The Complainant was not working and was not therefore getting paid.
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Findings and Conclusions:
I understand that the Complainant contacted the WRC administrative department indicating that she had been called to Madrid at short notice for a family emergency. This only became known to me, as Adjudicator, well after I had already allowed the Respondent team to leave the WRC as the Complainant had not showed up to the hearing. In the circumstances, I asked that the Complainant be contacted by email to provide evidence of a necessary last-minute trip to Madrid. This evidence has not been provided in the one-week period allotted, nor thereafter. I am therefore finding that the Complainant did not attend and did not provide any meaningful reasons for said non-attendance. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00053502-001 - The Complaint herein is not well founded. The Complainant did not attend and provided no evidence.
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Dated: 10-07-2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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