Complainant

Respondent

Parties

Rita  O Neill

Child And Family Agency Tusla

Representatives

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-00051064-001

08/06/2022

The Complainant alleges that a sum of money was deducted from her wages when she retired in relation to a technical adjustment payment made in 2015 when she was moved over to the SAP payroll system.

Payment in arrears.

The Complainant commenced working for the Respondent on 06.01 2004.She was paid by credit transfer fortnightly in arrears. Paid in arrears referred to an employee being paid in a previous paid period. She received no salary for the 1st two weeks worked in January 2004.

Tulsa have acknowledged in correspondence that the Complainant was paid in arrears.

Then the respondent decided to move every department onto the same payroll system. Those who would have been affected by the move were to be paid a technical adjustment payment. This technical adjustment only applies to HSE staff. It is designed to prevent staff going into arrears. The word national is not used in document. The Respondent uses that term all the time. It is not relevant to this payment.

The Respondent says “The technical adjustment is a national payment and must be repaid upon retirement”. A technical adjustment is paid to staff who have been subsumed into another agency to assure no financial loss.  They say that it is not a cash advance, they say that it is not a loan so what are the employees to pay back? That is not evident from any of the documentation.

The Complainant states that there are a number of inaccuracies in the Respondents analysis of the payslips for example, the pay slip 21.11.14, that pay date was actually the 20.11.2014 and that is varied by the payslip. The 20th is a Thursday. The dates are 08.11. 14 – 21.11.14 is a Saturday to a Friday. The following payslip with a pay date of the 02.12.2014, that is actually a pay date of the 04.12.2014 because the 2nd of the December was a Tuesday and the Complainant’s pay day is a Thursday. The dates worked on the slip are also incorrect because the days she worked as set out on the payslip are not actually the days she worked. Those inaccuracies throw all of the Respondent’s analysis into question.

The next payslip in issue is the 31.12.2014 – the Complainant was due to be paid on that date anyway. They took the basic pay and they paid from the 20.12. to 21.12, the 20th and 21st 2014 were a Saturday and a Sunday. The Complainant never worked on the weekends.

All the pay dates are the same.

The penultimate payslip, period 7 – the technical payment was deducted. The final payslip, days worked 21.03 to 03.04.22 basic pay is 983.26. That is for 5 days worked. That is up to the 25th March. That was her last day of work.

Technical adjustment payment.

HSE national financial regulation – The technical adjustment only applied to HSE staff. At paragraph 4.3.4 it states “ the provision of this regulation applied equally to the recoupment of the HSE  pay technical adjustments in incidents were an officers leaves HSE employment. The Technical adjustment is a term used describe the payment to employees to facilitate the rationalisation of pay  groups since 2005. The technical adjustment is an intervention in pay arrangements to prevent a one off cash flow loss to staff at the time of transition to fortnightly pay where an employees pay is going into arrears for the first time.

The Complainant was already on fortnight pay and she was never at risk of going into arrears. 

The words “notional “ is not used in the documents at all. The aforementioned documents states that “a technical adjustment is a notional payment to ensure that there is no cashflow disadvantage to employees moving pay period or as result of any tax implications that may arise. The adjustment is a notional payment and must be repaid.”

A technical adjustment is described as “it is payment to staff whose agencies have been subsumed into another agency under a transfer of undertakings were staff she should not be disadvantaged by virtue of the fact that a government decision caused them to move.”

This payment is described as notional payment. The technical adjustment under the HSE financial regulation is not notional. The Respondent is trying to say that it is notional to ensure there is no cash flow disadvantage to employees transferring over. The adjustment is a notional payment and it “is not a cash advance and it is not a loan and it must be repaid”.

The Complainant argues that all that defies logic. If something is not a cash advance or is not a loan what is there to pay back? The Complainant’s salary was not at risk of going into arrears therefore there wasn’t anything to deduct at the end of her employment.

In a letter from Kim Hayes to the Complainant she states that the technical adjustment is a notional payment. She also states that it is not a cash advance, and it is not a loan. Also, when one looks that the payslips, it is clear that there was nothing paid that needed to be paid back. The relevant payslip is the one dated 31.12.2014 this is one where the technical adjustment was added in.  The Respondent took the Complainant’s basic pay € 1,297.00, they paid her from the 20.12 2014 to the 21.12.2014 two days. Those two days are a Saturday and a Sunday. The Complainant did not work Saturdays or Sundays. They paid her the two days and called the balance due a technical adjustment. She ended up with her normal pay and her deductions were the same.

The Complainant’s penultimate payslip removed the technical payment. In her final payslip she was paid for the five days she worked up to the date she retired. Her two weeks she worked in arrears at the start of her employment were not paid to her.  She has expected that she would have been paid it. Had she have stayed on the old system she would have been paid.

Payment in arrears:

It is important to understand how and when staff on the various payrolls were paid to understand why the Respondent states that the Complainant is not out of pocket since her retirement.

The payroll for Tulsa pays staff fortnightly for 14 days worked 11 days previously. The EWF paid staff in arrears 13 days and one day in advance. They got paid on a Thursday and the one day in advance being the Friday.

On the 19th December 2014 the EWF staff were paid for the days that they worked between the 3rd – 19th December. That was the last EWF payroll. They were paid in arrears for the days that they had just completed. The move to the next payroll aligned the EWF staff with the new payroll dates and all other staff. In comparison, staff at Tulsa were paid on the 15th January were being paid for days that they worked for days between the 22nd December and the 4th January. So, they were paid for the two weeks that they worked, eleven days previous. That is the key to understanding the alignment. To align the EWF staff to the payroll with the rest of the staff across TULSA, it meant that there was potentially a two weeks period where had they have paid the EWF staff, all that the Complainant would have received was € 185.30 because there was effectively only two days that she would have worked that were due to be paid on the new payroll. It is the difference between being paid up to date for the days you have just worked or being paid for days two weeks which you worked eleven days ago. Had the Complainant stayed on the same EWF payroll, when she retired the final date would have been on the last day that she worked. On the new system she had a pay date two weeks after she finished because the new system paid in arrears. She did receive a payment two weeks after she finished, and it is that payment that covers the amount being claimed by the Complainant.

Technical adjustment period.

There were ten different payrolls and they needed to be amalgamated into one system. All of the discussions and agreements were negotiated with the Unions. It was agreed that all staff moving over would not be financially disadvantaged. The new payroll does pay over a 14 day period including Saturday and Sunday. The staff payroll at the time did pay for the ten working days as opposed to 14 calendar days and that was agreed and explained to staff prior to the move. In terms of the notional payment and the NFR, technical adjustments are an agreed method to ensure that staff are abridged between the move from one pay roll and another. Those payments are not loans or a cash advance because if they were they would potentially be subject to BIK.  The agreement with the relevant departments was that nobody should be disadvantaged. There would have been a significant disadvantage for the Complainant if the technical adjustment was not made. The key part is, had the Complainant stayed on her old payroll she would not have received a payment two weeks into the new system. Her payment was the same as it always was because that was agreed with the various parties prior to the move. Options were given to staff in relation to how they would like to pay it back. They could have paid it in one lump sum, or in instalments over a period of time or at the end of their employment. The Complainant did not pay any of it back during her employment so her second last payment before her retirement it was recouped. It was recouped from her second last payslip because there wasn’t enough in the last payment to cover the payment.

Technical adjustment.

Having carefully considered the evidence adduced by both parties I am satisfied that the Complainant did receive a technical adjustment payment in first payment following the amalgamation of the payrolls.  That was on the 31.12.2014. Had the Complainant not been paid a technical adjustment she would only have received payment for two days €185.30. The Complainant was paid for the two days plus a twelve day technical adjustment payment of € 1,111.78. That was due to the fact that the new system paid two weeks worked eleven days ago meaning there was only a two days overlap in the old system and the new. It was clearly agreed by all parties concerned that no staff would be financially disadvantaged by the move and that is why the Complainant’s first payment reflected her previous payments. There is also no ambiguity around the re-payment of that sum. Staff had repayment options available to them. The Complainant chose not to pay it until the end of her employment, so it was recouped in her second last payment. The sum recouped was € 1,111.78 being the twelve days technical adjustment payment made on the 31.12.2014.

Section 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.

(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 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 regards to all of 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.

On the basis that there was a clear and unambiguous agreement with the Employees and their Union representative prior to the amalgamation that any technical adjustment payments would be recouped prior to the end of employment I can find nothing to suggest that the deduction made from the Complainant’s second last payment was unlawful.

Payment in arrears.

The complainant stated that due to her contractual terms she was not paid for the first two weeks worked in 2014. She had expected that payment to be made at the end of her employment, but it was not. The sum due to her was € 1,966.52 gross (€1,498.91 net). Having analysed the payslips submitted for the hearing I can find no payment made in that amount to the Complainant. The second last payslip dated 31.03.2022 (period 7) covers days worked from the 07.03.2022 – 20.03.2022. The net pay was € 914.22, taking into account the deduction of € 1,111.79 for the technical adjustment recoupment. That payment does not include the two weeks she worked at the start of her employment. The final payment dated 14.04.2022 was for the five days she worked before her retirement plus her annual leave entitlements. Again, no payment was made to allow for the two weeks worked at the start of her employment.  I note that at the commencement of the Complainant’s employment her annual salary was € 18,384.00, point 1 on the Clerical Officers scale. Based on the payslips submitted into evidence, I calculate the payment that should have been made amounted to € 1,297.05 gross (€ 881.56 net) .

I find that this part of the Complainant’s complaint is well founded and accordingly I direct the Respondent to pay to the Complainant the sum of € 881.56.

CA-00051064-001   

Technical adjustment: This part of the complaint is not well founded and accordingly fails.

Payment in arrears: This part of the complaint is well founded. I direct the respondent to pay to the Complainant the sum of € 881.56.