Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Representatives

Colleen Minihane SIPTU

Anne O'Connell Anne O'Connell Solicitors

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-00052837-001

15/09/2022

The Complainant  commenced employment on 1  March 2017 with the Respondent and rose to a managerial role in a safety critical position  on a monthly salary of €5570.76 gross; net €4041.84 in 2020.  On 13 April 2021 the Complainant was notified in a meeting with the  Respondent that he was to be put on paid leave owing to a Garda investigation into family matters. This investigation  was brought to the Respondent’s attention by the Complainant’s father, who was also the Complainant’s overseer at the Respondent company. He was put on unpaid leave from  1 April 2022 for health and safety reasons due to a deterioration in his mental health, having received full pay until then. The Complainant submits that he was not paid €27,853.80 in breach of the Payment of Wages Act 1991 (the “1991 Act”).

The Respondent rejects the claim arguing that the Complainant remains on lay-off in line with his contract of employment and no payment is due.

The Complainant opened the 1991 Act on unlawful deduction and the Redundancy Payment Act 1967 (the “1967 Act”) in relation to lay off.

The Complainant  has been deprived of his livelihood without justification and has been without pay since 1 April 2022. The Complainant asserts there is work available for him to do however, it is the Respondent’s choice to deny him the opportunity to undertake his normal work.

The Complainant submits that the  lay-off in question is not legitimate as per the 1967 Act, as his work is currently being undertaken by another worker therefore, wages properly payable have been withheld.

The Complainant asserts that the  Respondent refers to the necessity of lay-off due to health and safety concerns regarding the Complainant’s mental health however, it has not sought to support him in any way with regard to their supposed concerns despite, section 12 of the proposed contract of employment stating:

“12.2 The Company shall also be entitled to require you to undergo a medical examination by a registered medical practitioner nominated by the Company during your employment.

12.3 In any medical examination you will be obliged to disclose to the Company’s doctor any medical or other conditions of which you are aware, and which could affect your ability to perform your duties safely, taking into account their own health and safety and the health and safety of others.”

The Complainant claims the  Respondent is seeking to rely on one part of an unsigned contract and ignore other parts of the same contract. The Complainant  is not disputing the difficulties of his personal circumstances, however, the solution is not to put him on a fabricated lay-off, when he could undertake his duties without having contact with his family members, instead of depriving him of his livelihood. The Complainant argues the  Respondent did not assert that the deduction from the Complainant’s wages during this period was required or authorised by statute, nor that the Complainant had given his prior consent in writing to the deduction. The Respondent cannot assert it is a contractual term of the Complainant ’s employment as the contract was not signed by the Complainant.   The  Complainant opened the Labour Court decision in the case ofCounty Tipperary Chamber of Commerce v David Shanahan (PWD2246)  where the Complainant did not give his consent in writing to a deduction in pay. The Complainant submits that the Respondent is wholly relying on a contract of employment that was not agreed between the parties thus, the deduction of wages was unlawful as per the Act.

The Complainant was relieved of his duties on 13 April 2021 when the Complainant had agreed with the Respondent that he was in no fit state to work due to the  allegations which had been made  against him within his family. This was  the subject of a Garda investigation. The Respondent paid the Complainant for approximately a full year but could not continue to do so. The place of work where the Respondent operated was quite confined and the Respondent could not offer him work at the location. This was due to the fact that the Complainant did not want to work with his father, who was the person he reported to at work. It was the Complainant’s  father who brought the matter of a Garda investigation  to the attention of the Respondent. Furthermore, the Complainant’s son, did not want to work with the Complainant at the Respondent location. The Respondent argues that the Complainant, by his own admission, could not no go back to the safety critical post he held at present. The Respondent could not find him suitable alternative work at the location,  though the Complainant is still an employee of the company. The Respondent contends therefore that it had no other option but to put the Complainant on temporary lay-off.

The Respondent opened the Labour Court case of Barbara Ciszewska v William P Keeling and Sons Unlimited Co. (PWD2010) where the Court determined that there is no obligation to pay wages where the potential for lay-off is provided for in a complainant’s contract.

The Respondent exhibited the Complainant’s contract where it stated that the Respondent reserved the right to lay  off the Complainant from work ,or reduce his hours, due to circumstances beyond its control.

The Applicable Law:

The Payment of Wages Act at Section 5(1) provides as follows:

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.

Section 5(6) of the Act provides:

(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.

Section 6 of the Act in relevant part provides as follows:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that —

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

Wages are defined in s. 1 of the Act in relevant part as:-

“…any sums payable to the employee by the employer in connection with his employment, Including (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise…”

The question to be determined here is whether there is an obligation that requires the Respondent to pay the salary of the Complainant in the period of lay-off. I note in the contract that the potential for lay-off is provided for with explicitly no requirement to pay the Complainant during such a period. The Complainant argued through his representative   that he never signed this contract, notwithstanding the fact that he sought to rely upon it in his submission on the issue of medical examination. No  evidence was forwarded on behalf of the Complainant of him having  resiled  from the  contract, nor otherwise having repudiated it. Moreover,  he worked for the stipulated  salary  and carried out the duties and responsibilities desired of him. This contract was very much drafted and personalised for  him only, and I am satisfied that the terms of the contract were accepted by him and, as implied by his conduct, to be  binding on him. Therefore, I find that it is a valid contract that specifies that no payment is  due during lay-off.

The Complainant refers to the definition of lay-off in the  1967 Act. However, the 1967  Act is not before me and it is not within my jurisdiction to examine the specific reasons for lay-off under the 1991 Act. My  role here is to determine whether wages that were “properly payable” to the Complainant during the lay-off period were deducted unlawfully, contrary to section 5 of the 1991 Act.

I am satisfied, for the reasons outlined above, that the Complainant has not established that he was  entitled to pay during the lay-off period.

 I find that the complaint was not well founded.

CA-00052873-001: For the reasons outlined above, I find that the complaint was not well founded.

Payment of Wages Act 1991, Contract of Employment.