Complainant

Respondent

Parties

Mathew  Mugri

St Patrick's Mental Health Services

Representatives

 Mairead Flanagan

Assistant Director of HR

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-00054913-001

07/02/2023

This hearing was 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 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.

In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to require that all parties giving oral evidence before me, would swear an Oath or make an affirmation as may be appropriate. I confirm that I have in the circumstances administered the Affirmation. It is noted that the giving of false statements or evidence is an offence.

As previously noted, the Complaint form issued on the 7th of February 2023 at which time the Complainant’s employment had already terminated as the Complainant left the workplace on the 7th of November 2022. In the circumstances I am bound under Statute (unless reasonable cause is sown) to consider any perceived deductions made within a six period prior to the 7th of February 2023. So, that is between the 8th of August 2021 and the 7th of February 2023.

The Complainant was not represented and made his own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth.  The Complainant relied on the submission outlined in the Workplace Relations Complaint Form together with a number of documents submitted prior to hearing. The Complainant’s  oral evidence was compatible with the statement made in the complaint form and no new issues arose. I was provided with a couple of supplemental documents being evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant provided me with a Medmark Medical report a few days after the hearing. I have considered the content of this report – dated the 7th of September 2022 – as part of the decision-making process.

The Complainant alleges that unlawful deductions had been made from his pay.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent entity was represented by the HR Manager. The Respondent provided me with a comprehensive submission received in the WRC on the 6th of June 2023. A number of witnesses presented to rebut the Complainant’s case including the Complainant’s Line Manager and the Director of ICT.

The Respondent rejects that there has been any unlawful deduction, and that any deduction (or perceived deduction) is specifically provided for in the Contract of Employment and/or the Employee Handbook (and so on notice). The Employer asserts that the Employee is on notice of the existence and effect of the said terms which the Employer claims allows for the deduction.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I requested a medical report (dated 7th of September 2022) sent to me after the hearing be sent on to the Respondent for consideration.

I have carefully considered the evidence in this matter. The Complainant is alleging that his Employer made unlawful deductions from his pay. The Complainant subdivided his claim into three specific instances wherein he says that unlawful deductions were made. I will come to these after outlining the facts as I understand them to have been relevant leading up to the complaint made.

The Complainant came to work with the Respondent medical facility on or about the 11th of April 2022. The Complainant was taken on as IT support. I note that the Respondent entity is an independent not for profit mental health care provider with up to 700 members of staff.

The Respondent was engaged on the basis of a two-year Fixed Term contract. The relevant Terms and Conditions set out in the said Contract of Employment were opened to me as and when  required so as to better understand the nature of the Complaint.

I note that the Contract includes a probationary period of six months and that the gross per annum payment was in the amount of €40,200.00.

As I understand it, the Complainant was due to be medically assessed as part of the pre-employment process and whilst the medical consultation may have taken part before the 11th of April date, it is clear that the outcome and findings of the medical report were not made known to Management until in or around the August of 2022. This meant that the Complainant was some four months in employment before the medical assessment findings were made known to the Employer. The parties both agree that the medical report appeared to waive some red-flag issues regarding the Complainant’s blood pressure. I have not seen the medical report and it was not volunteered. What is not clear to me is whether the Complainant had been aware of this issue before this medical examination and if he was, if that had been disclosed in any questionnaire that might have formed the application process.

In any event, it is clear that the Complainant did not believe that his health issues, as disclosed in the Respondent’s medical report, raised concerns which justified the steps taken. In this regard I note that the Complainant’s Line Manager had a conversation with the Complainant on or about the 11th or the 12th of August 2022 and asked him to step back from the workplace until such time as he had obtained a G.P. cert confirming he was fit to work. As part of this process the Respondent would be requiring the same confirmation from it’s own Doctor. Since the completion of the hearing I have had sight of the Medmark report in this regard.

Lest there be any doubt, I confirm that I accept the Respondent acted appropriately and responsibly at this time. It was faced with an unexpected medical report which revealed a medical condition which needed to be addressed. Whilst the Complainant might have felt that he had been working away with diligence and capability he needed to also understand that his Employer was bound to react to the medical report it had commissioned on his behalf.

In fact, to further emphasise how reasonable the Employer was being, I note that the Employee was put on the Hospital Sick Pay Scheme even though the Hospital had discretion to refuse that access in circumstances where the Complainant was still on probation. To my mind this indicates a real desire to treat the Complainant fairly and to get him back into the workplace quickly.

I note that the Employer explained that the salary which becomes payable in any period covered by the Sick pay scheme will be less than the Social Welfare Deduction to which the recipient is entitled. I understand that the Complainant would have been entitled to circa €220.00 per week Illness benefit. This should have been payable to him had he filled out an Illness Benefit Claim Form as well as submitting a certificate of incapacity for work from his G.P. I understand that the Complainant never did this, and this should be done within 6 weeks of becoming ill. The Complainant returned to work place some two and a half weeks later and after he was certified as being fit to work and his employer had the comfort of knowing that he had engaged with his G.P who found him fit to work and that his “hypertension requires ongoing workup with his G.P.”

The Complainant was surprised to note that his remuneration was deducted in accordance with the social welfare payments to which he was eligible for the period of his absence. Whilst I accept that the Employer was entitled to make that deduction per the terms of the scheme, I am not clear why the amount of €1,040.00 was deducted as I would have thought that a figure of €550.00 might be a more accurate figure. I note that the Complainant never requested the certificate of incapacity from his G.P. and therefore is at a loss of that money (or at least €550.00 of it) through no fault of his Employer. No reason for a further deduction of €490.00 was provided and I am inclined to restore that monies to the Complainant despite the fact that the Complainant wilfully disengaged from the process.

In addition to the above issue the Complainant submits that an unlawful deduction was made when his Employer purported to deduct pension contributions from his salary in the amount €256.21. The Complainant agreed with me (when I asked) that this was not an unlawful deduction and was an operation of the Contract of Employment which came into operation when the Complainant passed the six month probationary period. I understand that the Employer contribution matched and surpassed the contribution made.

Lastly, the Employee took issue with the fact that the Employer calculated divided the year into 26.09 separate fortnights (and not just 26 separate fortnights). The Respondent has asserted that Public Sector Circular 2/1977 – Payment or salaries on a fortnightly basis be applied to this (private) Contract of Employment. I understand that the Hospital has applied this Circular across the board for years and, of course, it is from this circular that the figure 26.18 is derived as being the actual number of fortnights in a year.  I am satisfied that the Complainant is wrong to have suggested that an unlawful deduction was being made. His Gross Salary of €40,200.00 would have been paid to him in a twelve-month period spread out over the 26.09 sperate periods. He was at no loss.

It is worth noting that after the Complainant resigned he went on to receive a Bonus of in excess of €2,000.00 in February of 2023 based on his KPI. This was unsolicited and demonstrates the code of fairness that this Employer operates under.

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

CA-00054913-001  - The Complaint herein is well-founded insofar as it relates to payment under the sick scheme and I direct that the Employer pay€490.00 to the Complainant.