Complainant

Respondent

Parties

Leeanne  O'Donnell

 Blue Bird Care Limerick

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00054180-001

11/12/2022

The Complainant commenced employment with the Respondent on 4th December 2020. At all relevant times the Complainant was engaged as a “supervisor” with the Respondent. The Complainant’s employment ended on 22nd July 2022.

On 11th December 2022, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent has failed to discharge all wages owing to her on the termination of her employment. In particular, the Complainant alleged that the Respondent failed to make payment for an amount of hours of overtime she had accrued during the final months of her employment. In disputing this allegation, the Respondent submitted that all relevant wages were paid to the Complainant.

A hearing in relation to this matter was convened for, and finalised on, 21st June 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

The Complainant gave evidence in support of her complaint, while a Director of the Respondent gave evidence in defense. All evidence was provided under affirmation and was opened to cross examination by the opposing side. 

At the outset of the hearing, the title of the Respondent was amended on consent to reflect their correct legal title.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In evidence, the Complainant stated that throughout her employment with the Respondent they operated a system of “banked” hours. In practice, the Complainant would be called into work on short notice and outside of her scheduled working hours. Rather than be paid for these hours, the Complainant would bank these to be taken as leave on another occasion.

In mid 2022, the Complainant’s employment came to an end. At the end of her employment the Complainant had a number of hours worked and banked in accordance with the prior arrangement. When the Complainant received her final payslip, she was disappointed to note that the hours due had not been paid. While she sought to resolve this matter locally with the Respondent, they refused to honour their prior commitment.

In summary, the Complainant submitted that she suffered an illegal deduction to the value of €537.60 in unpaid wages.

In denying the allegation above, the Respondent submitted that the Complainant received all wages due and owing to her in the course of her employment.

During the year of 2021, the Complainant took 32 days of annual leave and came into 2022 with an overpayment of fours days’ leave. While the Respondent accepted that they had formerly engaged in a system of banking of hours, they submitted that this practice was discontinued in early 2022. In evidence, a Director of the Respondent advised that he met with the Complainant and advised that the practice would be discontinued as it had become too difficult to administer. At the end of that meeting it was agreed that the Complainant would simply be paid for the amount of hours that she worked.

From the beginning of 2022 to the end of the Complainant’s employment, she took a total of 11.5 days of annual leave, resulting in an overpayment of €311.38 for this period. While this overpayment was not recouped, it did have the effect of the Complainant not being due any annual leave payment on the termination of her employment.

In the present case, the Complainant has alleged that she was entitled to a payment of outstanding wages on the termination of her employment. In denying this allegation, the Respondent submitted that the Complainant had been paid all outstanding sums and that no further wages were due.

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…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”.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which if there is a deficiency in respect of those such payments”.

In addition to the foregoing, it should be noted that the cognisable period for the purposes of the present complaint is 11th June 2022, being six months prior to the referral of the complaint, to 22nd July 2022, being the final date of employment.

Whilst the parties were in dispute in relation to much of the subject matter of this dispute, it is common case that the Respondent operated a “banking system” in respect of hours worked. In this regard, it is agreed that the Complainant would work over and above her scheduled hours and thereafter take the accrued hours as time off. In early 2022, the parties met with the Respondent informing the Complainant that this arrangement was to be discontinued and the Complainant was simply to be paid for all hours worked. Having regard to the foregoing, it is apparent that during the cognisable period for the purposes of the present complaint, the position was that hours of work above the Complainant’s scheduled hours would be discharged in the normal fashion. Having regard to the evidence as tendered, it appears that no dispute arises in relation to this period of employment.

The central aspect of the dispute involves the Complainant’s allegation that she had accrued a significant amount of banked hours by the termination of her employment. In circumstances whereby she could not avail of the same as time in lieu, she submitted that she should be paid for the same. In the alternative, the Respondent submitted that the Complainant had taken annual leave in excess of her statutory and contractual entitlements  and as a consequence of the same, she had no entitlement to a payment on termination.

Having reviewed the records in this regard, it is apparent that for the calendar year 2022, the Complainant had taken in excess of her statutory leave entitlement and no payment arising in relation to the same on termination. Regarding the allegation of accrued time in lieu, from the evidence of the parties, it is apparent that this arrangement had finalised some months prior to the cognisant period of the purposes of the complaint, and any breach in relation to the same falls outside the scope of the same.

Having regard to the foregoing, I find that the Complainant’s complaint is not well-founded.

I find that the complaint is not well-founded.

Payment of Wages, Time in Lieu