Complainant

Respondent

Parties

Ashling  Kempton

Work Web West Limited trading as Employability Mayo

Representatives

Martina Weir Siptu - Works Rights Centre

 Greg Barry – Co-Ordinator

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-00051587-001

07/07/2022

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

CA-00053979-001

02/12/2022

This case is concerned with a reduction in the Complainants wages commencing in October 2021 which has continued since then. There was an earlier complaint by the Complainant which was dealt with in ADJ-00036436 which concerned the cognisable period of between the 14th of June and the 13th of December 2021 which was upheld.

The first complaint here was submitted to the WRC on the 7th of July 2022. The second was submitted on the 2nd of December 2022. The cognisable period covered by the first complaint is therefore any deductions made between the 8th of January and 7th July 2022. The cognisable period covered by the second complaint is any deductions made between the 8th of July 2022 and the 2nd of December 2022.

Both complaints consider a deduction of €30.56 net per week. The first complaint is for 26 weeks, therefore €794.56 net. The second complaint concerns 21 weeks, therefore €641.76 net.

The employment operates in what is broadly known as the Community Employment Sector whose budget is funded by the Department of Employment Affairs and Social Protection (hereinafter the “DEASP”).

The Complainant was represented by Ms Martina Weir of SIPTU. She did not give evidence under oath. The Respondent was represented by Mr Greg Barry, Co-Ordinator. He gave evidence under oath. The Complainant did not wish to cross-examine Mr Barry as there was little in dispute between the parties.

The Complainant commenced employment as an employment facilitator with the Respondent in October 2016. Her role was to integrate people with disabilities into employment. In the years which followed, including 2020, she received an annual increment. This was the norm with the Respondent. It was not expressly set out in her written contract of employment which did refer to increments being dependent on funding. In October 2020 the Complainant’s gross annual rate of pay had increased to reach point five of the salary scale or €669.12 gross per week x 52 = €34,794.00 gross per annum.

In February 2021, and without her agreement, the employer reduced her pay back to point four of the pay scale. The only discussion with her prior to the deduction was on the 4th of February 2021 when she received a phone call from the Respondents witness when he advised of concerns around the budget allocation from the DEASP. That call initially advised her that there may be a difficulty in paying the next increment due in October 2021. Then the possible effects on her increment the previous October was also mentioned.

The Complainant had a further conversation on the issue on the 5th of February. She then found the deduction had been made from her payslip on the 11th of February. The Complainant had received the increment between October 2020 and February 2021. When she complained about the deduction, the Complainant was told that the full budget sought was not allocated to the Respondent by the DEASP, it was a nationwide issue. The Respondent resubmitted their budget but there was no change in the position. The Complainant complained to the Respondent witness about the cut and noted that she was the only member of staff to experience a cut in her wages. She was advised to take it up with her local politicians.

The terms of section 5(1) of the Payment of Wages Act 1991 were cited in support of the complaint on the basis that none of the terms of subsections (a) (b) (c) of that section were in place in February 2021 when the deductions commenced. In addition to the deductions from February 2021, payment of the annual increment which fell due in October 2021 was withheld.

Reference was made to ADJ-00036436 where the Complainant had an earlier complaint on this issue for a cognisable period between the 14th of June and the 13th of December 2021 upheld by an Adjudication Officer. The Respondent had paid her the award.

It was accepted the Respondent had continued to seek to remedy the issue for the Complainant. As recently as the first week in February 2023 there had been further engagement on the issue.

The Co-Ordinator gave evidence under Oath on behalf of the Respondent.

In October 2020, the Respondent paid the annual increment which brought the Complainant to point five of the agreed pay scale. That scale was in place since 2008 when it was approved by FAS who were then the funding body. In 2011 the DEASP took over the local employment schemes and continued to implement the funding of staff salaries on the basis of the FAS rates without issue until 2019. Each employees increments were applied for individually by the Respondent.

It was accepted the Complainant was informed in person that her pay would increase by increments in accordance with the salary scale of FAS.

In 2020 the Respondent moved the Complainant up the scale believing that the funding for 2021 would cover the payment of that increment (and the move to the next incremental point due in October 2021). This was done in good faith. The budget allocation for 2021 did not provide the funds either for the increment paid from October 2020 or the one due in 2021. The budget was resubmitted but to no avail.

The Respondent accepted this was discussed with the Complainant in February.

Representations to the Department officials resulted in a response ’the terms and conditions of staff including remuneration are a matter for the contracting organisation that employs them.’ Political representations were made to the Minister concerned but to no avail.

Regarding payments to other members of staff without any cuts, other staff were already at the top point of the pay scale approved in 2008 and therefor incremental payments did not arise.

In relation to the last case taken by the Complainant, the Respondent had not appealed this. They had paid it out of their own budget, not from the DEASP’s funding. They are a not for profit organisation and would not have funds for this going forward unless the DEASP fund it.

The first aspect to be considered is the contractual one which, among other terms, contains the agreed terms of payment. The wording of that contract in relation to pay is:

‘Your salary will be €26,210.00 per annum (pro Rata) paid weekly……...Pay increases and increments are depending on funding allocation and will be reviewed as necessary.’

As can be seen, there is no salary scale and no absolute commitment to annual increments in the written terms. However, a contract can be written as well as unwritten. The evidence of the Respondent to the hearing is that there was a verbal commitment to the Complainant to pay annual increments. This was based on the document issued to them by FAS which set out in detail the salary scales to apply to those on the supported employment programme effective from the 01/03/2008.

In the interim, responsibility for payments to those on the supported employment schemes and the rates of funding passed to a Government Department. Unfortunately the Complainant is caught in the middle of the funding shortfall caused directly by the Government Department refusing to recognise the commitment given by their predecessor funding body, FAS. Given the paltry sums involved (except to the Complainant) one really must wonder why a government department finds it necessary to reach down into the salary of one individual to such an extent that they would deny the Respondent the funding necessary to comply with the commitments given in 2008 and which operated for many years undisturbed thereafter. The only alternative it would seem open to the Respondent would have been to cut the wages of other staff - and the same matter of contractual breaches and obligations would apply there. The Ministers letter of 31 March 2021 suggesting that the terms of employment are exclusively a matter for the service provider does not sit easily with the reality where all funding is provided by and must be approved by the Ministers Department and that those terms were set by the predecessor organisation at national level some thirteen years prior to the refusal to fund the amount in question.

Notwithstanding any sympathy for the Respondent’s predicament, the reduction of wages in February 2021 represents a deduction or payment withheld. The increase paid in October 2020 was in line with the verbal contract with the Complainant, was implemented in line with the FAS circular of 2008 and was therefore properly payable. That deduction was not authorised by any agreement to vary the contracted terms. As such it was unlawful in accordance with section 5 of the Payment of Wages Act 1991 as follows:

Regulation of certain deductions made and payments received by employers.

“5.— (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.”

The Union is correct in asserting that none of the above terms applied or can be claimed to apply such that they could justify the (unlawful) deduction from the wages of the Complainant commencing in February 2021.

The complaint is well founded. The calculation below is based on the cognisable period as referenced earlier in this text.

Payment of Wages Act 1991 - CA-00051587-001 The complaint made by Ashling Kempton against Work Mayo Ltd. T/A Employability Mayo of unlawful deductions from her wages during the cognisable period is well-founded. The Respondent is to pay Ashling Kempton €794.56 nett in respect of those deductions.

Payment of Wages Act 1991 - CA-00053979-001 The complaint made by Ashling Kempton against Work Mayo Ltd. T/A Employability Mayo of unlawful deductions from her wages during the cognisable period is well-founded. The Respondent is to pay Ashling Kempton €641.76 nett in respect of those deductions.

Deductions/Reduction in pay without agreement/Payment of Wages