Complainant

Respondent

Parties

Michael  McGagh

U-Casadh

Representatives

Mark Walsh Kenny Stephenson Chapman Solicitors

Rebecca DeGroot Peninsula Group Limited

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-00036390-001

28/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00036390-002

28/05/2020

The Complainant stated that he was not paid salary from January 2020 until July 2021 contrary to the provisions of the Payment of Wages Act [1991-2017] and that he is owed holiday pay and expenses. The Complainant further stated that he did not receive a statement of his terms and conditions of employment contrary to the Terms of Employment (Information Act) [1994-2020]. These complaints are disputed and rejected by the Respondent.

CA-00036390-001

The Respondent raised a preliminary matter in relation to the payment of wages complaint. In that regard the Respondent stated that the Complaint Form was received by the WRC on 28 May 2020 and that any alleged contravention after that date was pre-lodged and therefore outside the scope of the six month reference time for making a complaint. In support of its position the Respondent cited the case of Health Service Executive V John McDermott [2014] IEHC 331. In the alternative, the Complainant argued that his complaint re loss of wages was continuing at the time of the submission of his Complaint Form to the WRC, that the same set of facts persisted throughout, that regard should be had to the date of the hearing and that in all the circumstances, the entirety of his complaint was within time. The Complainant cited the Supreme Court decision of Helen O’Toole V Charles J.Heavey [SC 299/90] and drew my attention to decisions in protected disclosure cases.

I advised the parties that I would hear the complaints in full and reserve my decision.

 CA-00036390-001

The Complainant commenced employment with the Respondent in 2017 as an outreach worker. The Complainant stated that the Respondent was a private limited company which provided rehabilitative support for those exiting the criminal justice system through the use of community employment schemes, training and various education initiatives. The Complainant stated that the Respondent was fully funded by the probation service of the Department of Justice, Equality and Law Reform and that accordingly, his salary was paid by way of grant from the Department.

The Complainant outlined the background to his complaint including in respect of a protected disclosure which he made in 2018 and High Court proceedings which he had initiated. Between September and December 2019 the Complainant took periods of sick leave for various reasons but stated that he returned to work on Monday, 2 December 2019 having being certified fit to do so by his GP. He stated that he provided a medical return to work certificate. The Complainant submits that the Respondent acknowledged his return to work by conducting a return to work meeting with him on 3 December 2019. Thereafter, the Complainant stated that he stayed at work until he took annual leave from 9 December until 27 December 2019 – and that he was  paid his usual salary for all of December 2019.

On the 20th December 2019, the Respondent wrote to the Complainant in relation to his contract renewal and advised him not to return to work after his Christmas holidays and “until such time as his contract renewal was finalised”. In the letter the Respondent invited the Complainant to a meeting scheduled for 9 January 2020. This meeting did not take place and there were further exchanges between the Respondent and the Complainant in relation to arranging a proposed meeting, which in fact never took place. However, it is the position of the Complainant that at all times he “readily engaged with the Respondent as regards the holding of such a meeting….”. 

The Complainant stated that on the 27th August 2020, the Respondent wrote to him and advised that it had instigated a formal investigation into certain instances of alleged misconduct on his part including his absence from work in the period from 2019 into 2020 and the matter of the provision of medical certification. Terms of Reference were provided for the investigation and the Complainant stated that he fully co-operated with the process which was conducted by a Third Party – ie Mr Nicholas Young of Graphite HRM (the Investigator) - on behalf of the Respondent. The investigation was completed on the 7th May 2021 and the conclusion found that the Complainant had no case to answer in respect of all the allegations. Thereafter and by agreement with the Respondent, the Complainant returned to work on 19 July 2021, was restored to the payroll and was granted a Contract of Indefinite Duration (CID).

It is the position of the Complainant that on foot of the direction contained in the Respondent’s letter to him of the 20th December 2019, he was not permitted to return to his employment between 27 December 2019 and 19 July 2021 notwithstanding his willingness and availability  to do, that effectively he was on unpaid suspension from work during this time which he stated was wholly unjustified, in breach of fair procedures and constituted an unlawful deduction of his wages contrary to the Payment of Wages Act [1991-2017]. The Complainant submitted that at all times he continued to be in the employ of the Respondent and that the Investigator had confirmed this to him as otherwise a workplace investigation could not have been undertaken during 2020/2021.

The Complainant stated that his annual gross salary was €39,992.00. At the adjudication hearing he stated that he was fully paid for December 2019 and that he was seeking the amount of €61,795.85 in respect of 565 days of unpaid wages – ie from 1 January 2020 until his return to the payroll on 19 July 2021 (although on his Complaint Form the figure was €15,381.40). The Complainant is also seeking €461.42 in holiday pay owed since 1 January 2020 together with work related and travel expenses for the amount of €4,869.

CA-00036390-002

The Complainant stated that in 2019 and 2020, he had repeatedly but unsuccessfully requested copies of his contracts of employment but was advised that his request could not be processed whilst the issues relating to his return to work remained outstanding. In particular the Complainant referred to the failure to provide him with a contract of employment for the year 2020.

The Respondent stated that it was a charitable and non-profit organisation providing support services for offenders, ex-offenders and those at risk of offending and their families to facilitate full participation in community and economic life. The Respondent stated that it relied on government funding and accordingly it was not always possible to make roles permanent as these were subject to funding which was reviewed on a regular basis.

The Respondent' stated that the Complainant commenced employment on 8 May 2017 as a Project and Outreach Worker. He was employed on successive fixed term contracts until December 2019.The Respondent stated that on his return to work in July 2021 the Complainant was granted a Contract of Indefinite Duration (CID).

CA-00036390-001

The Respondent disputes and denies that the Complainant is owed wages for the period January 2020 – July 2021 and maintains that he had no entitlement to payment during this time as he had not provided the correct medical certification of fitness to return to work in December 2019 and in any event, his fixed term contract expired on 31 December 2019 and he was therefore out of contract after that. The Respondent outlined the Complainant’s sick leave towards the end of 2019. In that regard, the Respondent stated that on the 17th October 2019, the Complainant’s Medical Practitioner stated that he would be fit to return to work as of 1 December 2020 but that due to the length of intervening time, on 28 November 2019 the Respondent requested the Complainant to provide a medical certificate of fitness to return to work. The Respondent stated that on 3 December 2019, the Complainant provided a social welfare illness form and that he was informed this not a fitness to return to work medical certificate.

In addition to its consideration of the Complainant’s medical certification, the Respondent stated that it also needed to review the Complainant’s role. The Respondent stated that it had issues to discuss with the Complainant and that it wrote to him on 20 December 2019 informing him that his contract was due to expire on 31 December 2019 and that it sought to arrange a review and consultation meeting with him regarding the outstanding issues.

Thereafter, there followed an exchange of correspondence between the Complainant/his representative and the Respondent in relation to the matter of the Complainant’s fitness to return to work, the provision of a medical certificate of fitness to return and the issue of arranging a review meeting with the Complainant. Ultimately no direct meeting took place between the Complainant and the Respondent.

The Respondent initiated an investigation conducted by a third party/Graphite HRM during 2020/2021 in relation to various allegations concerning alleged absence from work and alleged failure to follow certain of the Respondent’s policies and procedures. The Investigator found that the Complainant had no case to answer with regard to all of the allegations and thereafter he returned to work in July 2021.

It is the position of the Respondent that the Complainant’s fixed term contract expired on 31 December 2019 and that he was out of contract until he returned in July 2021. The Respondent stated that the Complainant had  “failed to renew or consult on any contract beyond 31st December 2019.” The Respondent also stated that the Complainant “[had] failed to provide the Respondent with a medical certificate to excuse his absence, to make way for any discretionary sickness payment to be made to him”. Further, the Respondent stated that the Complainant failed to perform any work between January 2020 and July 2021 and accordingly, no wages were due to him. In addition, the Respondent maintained that the Complainant could not have accrued annual leave during this time. In relation to expenses, the Respondent stated that the Complainant did not provide receipts, that the expenditure had not been authorised in accordance with the Respondent’s expenses policy and that such complaint was outside the scope of the Payment of Wages Act [1991-2017].

CA-00036390-002

The Respondent denied that it had not provided the Complainant with a statement of his main terms and conditions. In that regard, the Respondent stated that it had provided the Complainant with a contract of employment – which the Complainant had signed - for each period of employment. The Respondent cited various Statements of Terms of Employment signed by the Complainant on the 16th June 2017, 26th November 2018 and 6th June 2019 to reflect different periods of employment up to the end of 2019 and to its Induction Document signed by the Complainant on the 19th June 2017. Accordingly, the Respondent maintained that the Complainant was at all times aware of his terms and conditions of employment - for example - in relation to his pay, sick leave, pension and various policies and/or collective agreements. The Respondent stated that the Complainant was out of contract for 2020 but had received a new contract when he returned to work in July 2021.

CA-00036390-001

Preliminary Matter:

Section 41(6) of the Workplace Relations Act [2015 - 2021] provides that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”

Having given careful consideration to the submissions and evidence, I am satisfied from the wording of the legislation that the contravention must precede the lodgement of the complaint. I am further satisfied that this approach is consistent with the High Court decision in Health Service Executive V John McDermott [2014] IEHC 331 upon which I am relying  – vis – that for the purposes of the Payment of Wages Act [1991-2017], each and every breach is considered a contravention provided such contravention occurred within the six months prior to the WRC complaint.  Accordingly, as the complaint was received by the WRC on the 28th May 2020, I am satisfied that I have jurisdiction to determine all complaints of contravention occurring within the previous six months but not after the 28th May 2020/ie date of WRC complaint.  

Section 1 of the Payment of Wages Act [1991-2017] sets out the definition of wages as

(a) “any fee, bonus or commission, or any holiday, sick and maternity pay, or any other emolument, referable to [the employee’s] employment, whether payable under [the] contract of employment or otherwise, and

(b) any sum payable to the employee upon….termination….;

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……”.

Section 5(1) of the Payment of Wages Act [1991-2017] sets out the parameters according to which deductions may be made from an employee’s wages:

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.

2)      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 thesupply 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

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services”.

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

             “5(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”.

The events in this case are for the most part not in dispute including that the Complainant was not paid any wages from 1 January 2020 until his resumption on 19 July 2021. In his evidence the Complainant was clear that he returned to work on 2 December 2019 and he stated that he had acted in good faith in relation to his medical certification and had provided the appropriate return to work certificate. I was furnished with a copy of a medical certificate from the Complainant’s GP dated 17 October 2019 which covered the period 17 October 2019 until 30 November 2019 and stated as follows: “Additional Note: Fit to return 01/12/20”. The Complainant stated that the date of 1 December 2020 was a mistake by the doctor and that it was clear it was intended to be 1 December 2019. The Complainant stated that this could have been clarified by a phone call. The Complainant also stated that he could not access social welfare payments during 2020 including the PUP as the Respondent had stated he was on sick leave.

For its part, the Respondent was not satisfied with the medical certification provided – including that it was not provided in a timely manner/ie proximate to the date of return of 1 December 2019 and that it was incorrectly dated. The Respondent was also concerned that the document provided by the Complainant on 3 December 2019 did not constitute a medical certificate of fitness to return to work. A number of other specific issues were raised by the Respondent with the Complainant in relation to the provision of medical certification. In all the circumstances, I am of the view that an Employer is entitled to query a medical certificate or seek further independent medical opinion.

I have noted that in the course of the hearing an issue arose as to whether the Complainant was suspended during 2020 but this was disputed by the Respondent who stated in evidence that reference to suspension in a letter of 17 June 2022 sent on its behalf was “mis-spoken”.

From the evidence, submissions and documentation the first question I must decide is whether the wages sought by the Complainant for the period 1 January 2020 until 28 May 2020 were properly payable in accordance with section 5(6) of the Payment of Wages Act [1991-2017]. In Noonan Services Group Ltd V  Dureza Sumayao, the Labour Court [No PWD2252] stated as follows:

“The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55,made clear that this Court, when considering a complaint under the Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether adeduction had been made. That matter having been addressed, it is for the Court to determine whether the wages actually paid on the occasion were less than the wages which were properly payable on the occasion. If the wages actually paid were less than the amount properly payable, then the difference could be concluded to be a deduction within the meaning of the Act. If it is established that a deduction within the meaning of the Act had been made from the wages properly payable on the occasion, the Court would then consider whether that deduction was lawful.”

In the instant case the Respondent has submitted that the Complainant was out of contract from 1 January 2020, that he did not comply with policy and the requirement to submit appropriate medical certification and that in any event, he performed no work during 2020. I cannot accept the Respondent’s approach in this regard for the following reasons:

·       Notwithstanding the dispute regarding the medical certification, I am satisfied from the evidence that the Complainant returned to work on the 2nd December 2019, that he remained at work for a number of days before taking annual leave and that he was paid his usual wages for all of December 2019. Accordingly, I am of the view that any concerns about the Complainant’s medical fitness to return to work should have been addressed by the Respondent prior to his return;

·       The Respondent continued to engage with the Complainant from 1 January 2020 and throughout 2020 as if he was an employee – for example, the Respondent continued to seek to meet with the Complainant at various times regarding various matters including medical certification and invariably advised him that he was entitled to be accompanied by a fellow colleague/co-worker or union rep; the Respondent wrote to the Complainant on 27 August 2020 advising of the instigation of the formal investigation which it stated “will be carried out within the remit of the Organisation’s Disciplinary Policy”; a letter from the Respondent to the Complainant of 13 August 2021 proposed (on the basis of medical certification supplied by the Complainant on 20 April 2020) to fix his contract of employment as being effective from 1 May 2020 though he was not returned to the payroll until July 2021, and in its letter to the Complainant of 14 June 2021, the Respondent advised that it would determine “a suitable return to work date”. In addition, I refer to the letters to the Complainant of the 11th March and 17th April 2020 respectively, wherein the Respondent advised “….we are writing to confirm and remind you that you are an employee of U-Casadh and you are expected to be at work as soon as you are fit to be at work” and “As we have received no explanation for your absence we have no alternative but to conclude that you are absent without authorization”. In all the circumstances, I am satisfied from the course of dealings between the Respondent and the Complainant from 1 January 2020, that the Complainant was not out of contract and that the employment relationship continued in 2020; 

·       The Respondent’s letter to the Complainant of the 20th December 2019 advised him “that as [his] contract will expire on the 31st December 2019, [he] should not attend for work in the intervening period”. In my view irrespective of the issue of medical certification, the Complainant had no alternative but to comply with this direction from the Respondent. As I have already concluded that the employment relationship between the Complainant and the Respondent continued after the 1st January 2020 and as the Respondent clarified that the Complainant was not suspended from work, I find that this direction had the effect of excluding the Complainant from his workplace resulting in an unlawful deduction of the wages which were properly payable to him  to him contrary to the provisions of the Payment of Wages Act [1991-2017].  

The Complainant is also seeking an amount of €4,869 for expenses due to him. As is clear from the definition of wages set out at Section 1 of the  Payment of Wages Act [1991-2017] outlined above, expenses fall outside the legal definition of wages and accordingly I do not have jurisdiction to deal with this aspect of the Complainant’s claim.

CA-00036390-002

The Terms of Employment (Information) Act 1994 and the Employment (Miscellaneous Provisions) Act 2018 apply in relation to providing an employee with details of his/her terms and conditions of employment. Section 3 of the Act sets out the terms which should be included in a statement to be furnished to the employee within 2 months of his starting work. These include:

·       The full names of the employer and employee

·       The address of the employer

·       The expected duration of the contract (if the contract is temporary or fixed-term)

·       The rate or method of calculating your pay, and the ‘pay reference period’ (for example, whether you are paid weekly, fortnightly or monthly)

·       What the employer reasonably expects the normal length of your working day and week to be (for example, 8 hours a day, 5 days a week)

·       The place of work

·       The job title or nature of the work (such as a brief job description)

·       The date the employment started

·       Pay intervals (for example, weekly or monthly)

·       Any terms or conditions relating to hours of work (such as overtime)

·       Paid leave, including your annual leave and public holiday entitlements

·       Sick pay

·       Pension and pension schemes

·       Period of notice to be given by employer or employee

·       Details of any collective agreements that may affect your terms of employment.

In the instant case, from the evidence and submissions I am persuaded by the Respondent’s position that the Complainant was furnished with and signed various statements of terms of employment up to 2019 and I also accept that he was provided with an employee/induction handbook. Having concluded however, that the Complainant continued to be an employee of the Respondent during 2020, I find that he was not furnished with any type of contract or statement of terms of employment from 1 January 2020.

CA-00036390-001

For the reasons outlined this complaint is well founded.  I find that the non-payment of wages to the Complainant for the period 1 January 2020 to 28 May 2020 constituted an unlawful deduction contrary to the provisions of the Payment of Wages Act [1991-2017].  Based on the Complainant’s annual gross salary was €39,992.00, I order the Respondent to pay the Complainant €16,305.00 being the gross amount which should have been payable to the Complainant for the period 1 January 2020 to 28 May 2020, subject to such statutory deductions as may apply.

Based on the formula of 8% hours worked for the period 1 January – 28 May 2020, I order the Respondent to pay the Complainant the gross amount of €1,304.29 in holiday pay, subject to such statutory deductions as may apply.

CA-00036390-002

For the reasons outlined this complaint is well founded in respect of the year 2020.  Based on the Complainant’s annual gross salary of €39,992.00, I order the Respondent to pay the Complainant €2,307.21 which I consider is equivalent to three weeks remuneration – and this is subject to such statutory deductions as may apply.

Payment of Wages; Unlawful deduction; Statement of Terms of Employment