Complainant

Respondent

Parties

Joseph  Kelly

KDK Scaffolding Limited

Representatives

Shonagh Byrne SIPTU

Michelle Tully Construction Industry Federation

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-00049204-002

15/03/2022

The Complainant was employed as a scaffolder with the Respondent from January 2017 until his employment ended in May 2022. He is seeking to be repaid his loss of wages from a one-day’s suspension without pay which took place on the 3rd March 2022. The Complainant’s net daily rate of pay for the week ending the 6th March 2022 was €176.92 net.

The Complainant was employed as a scaffolder with the Respondent from January 2017 until his employment ended in May 2022.

On the 13th December 2021 the Complainant was asked to prepare a written statement of his account of an incident which occurred on the 25th November 2021 which he duly did. On the 26th January 2022 he was invited to attend a disciplinary hearing on the 4th February 2022. The disciplinary hearing was scheduled to deal with allegations against the Complainant from the 25th November 2021 and the 12th January 2022 which were as follows:

1. Not taking instruction from the relevant site supervisor on the 25th November 2021.

2. Walking off site on the 25th November 2021.

3. Unauthorised absence on the 26th November 2021.

4. Not taking instruction from the relevant site supervisor on the 12th January 2022.

The disciplinary hearing took place on the 4th February 2022 and was conducted by the Project Manager and the Site Supervisor. Following the disciplinary hearing the Respondent issued the Complainant with a first written warning with a 12 month duration and a second sanction of one-day’s suspension without pay. According to the Complainant the decision regarding the disciplinary sanction was taken by the Managing Director. The Managing Director did not conduct the disciplinary hearing himself but took the decision to issue the Complainant with the double sanction. The Complainant did not believe that the relevant site supervisor or any other staff member was interviewed regarding the incident on the 25th November 2021.

The Complainant was advised that he could appeal the decision to the Managing Director. The Complainant appealed the sanction on the 20th February 2022 and set out in writing his grounds of appeal. The Managing Director responded on the 22nd February 2022 advising that the Respondent would not be granting another hearing and the sanction stood. Therefore, no appeal hearing took place. The Complainant responded on the 23rd February 2022 stating that he was referring the matter to SIPTU. On the 25th February 2022 the Complainant was advised that he would receive a one-day’s suspension without pay on the 3rd March 2022 and he was deducted one-day’s wages for that day.

The Complainant gave evidence that and that as far as he was aware the Respondent’s disciplinary procedure was a “three strikes” procedure which the Respondent failed to follow. The Complainant stated that he was aware following the disciplinary hearing that the sanction to be imposed was a first written warning and a one-day's suspension without pay but he did not agree or consent to this deduction from his wages, whether orally or in writing.

Under cross examination the Complainant accepted that he admitted the four allegations that were levelled against him and that he signed off on the minutes of the disciplinary meeting on the 4th February 2022 however he stated that he did so as he believed he had no choice. The Complainant stated that the Respondent did not have a HR department or grievance policy but that if you had a grievance you went to your manager who then went to the Project Manager who then went to the Managing Director which is what he did regarding his health and safety complaints but all his complaints were ignored by the Respondent’s management.

It was submitted on behalf of the Complainant that the deduction of one day’s wages on the 3rd March 2022 was an unlawful deduction on the basis that the Complainant did not consent to the deduction from his wages, it was disproportionate, unfair and was not just or equitable or reasonable in all the circumstances and therefore it was in breach of Section 5 of the Payment of Wages Act 1991 and he was seeking the compensation of one day’s wages.

The Respondent submitted that on the 26th January 2022 the Complainant was invited to a disciplinary hearing in relation to four incidents which occurred on the 25th November 2021 and the 12th January 2022, namely:

1. Not taking instruction from the relevant site supervisor on the 25th November 2021.

2. Walking off site on the 25th November 2021.

3. Unauthorised absence on the 26th November 2021.

4. Not taking instruction from the relevant site supervisor on the 12th January 2022.

The disciplinary hearing took place on the 4th February 2022 and was conducted by the Project Manager and the Site Supervisor. Minutes were taken from the meeting and they were signed by all parties including the Complainant. In evidence the Managing Director denied that he made the decision to impose disciplinary sanctions on the Complainant stating that his only involvement was at the appeal stage of the process despite his name appearing at the bottom of all of the correspondence. He stated that the Respondent’s IT system was set up in such a way that all correspondence generated bore his signature at the bottom of the page.  The Managing Director gave evidence that in referencing the “three strikes” procedure the Complainant was confusing the Respondent’s health and safety policy with its disciplinary procedure.

The Respondent submitted that the outcome of the disciplinary hearing was communicated to the Complainant on the 17th February 2022 and that the one-day’s unpaid suspended leave was communicated in writing to the Complainant on the 25th February 2022. It was stated on behalf of the Respondent that it felt that the quantity of the allegations gave way to skipping progressive sanctions however the Respondent did not want to issue a final written warning to the Complainant as such a harsh sanction could only have a negative impact on the Complainant’s morale. The Respondent therefore imposed a lesser sanction of a first written warning and a one-day’s suspension without pay in the hope that the sanction would deter the Complainant from further misconduct.

The Respondent’s representative made reference to the S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 and in particular Sections 10 and 11 thereof and to the Respondent’s disciplinary procedures in support of the Respondent’s contention that the deduction of the Complainant’s wages on the 3rd March 2022 was a lawful deduction. It was submitted that the Respondent invoked fair procedures in accordance with its  disciplinary procedure and that the Complainant fairly received a first written warning for what was described as “numerous well-founded allegations to which he admitted to doing” and a one-day’s suspension without pay in order to highlight the severity of the situation without providing a final written warning for four upheld allegations.

In making these findings I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Relevant Law:

Payment of Wages Act 1991

In considering whether the Complainant’s wages were the subject of an unlawful deduction as alleged, it is necessary to examine the relevant provisions of the Payment of Wages Act 1991 as amended (hereinafter referred to as “the 1991 Act”).

Section 5 of the 1991 Act serves to regulate certain deductions made and payments received by employers.   Sections 5(1), (2), (3) and (4) of the 1991 Act place a number of restrictions on employers in relation to such deductions or payments with regard to the authority for making the deduction, the fairness and reasonableness of the deduction and the manner in which the deduction is to be notified to the employee.

Section 5(1) of the 1991 Act 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(2) of the 1991 provides that:

5(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 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) of the 1991 Act addresses the circumstances in which wages which are properly payable are not paid:

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 non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer.  The question to be decided is whether the wages claimed were properly payable.

Whilst the Respondent submitted a number of documents generated during the course of the disciplinary process to the Workplace Relations Commission in advance of the hearing there was no evidence before me that the Complainant was furnished with a contract of employment or a written statement of his terms and conditions of employment. Furthermore, the Complainant’s pay slips for the relevant period were not submitted to the Workplace Relations Commission in advance of or at the hearing.

The Complainant gave evidence that he was paid an hourly rate of pay  €17.50 x 8 hours per day together with a travel and subsistence payment, referred to as “Country Money”, in the sum of €36 per day and that his net daily rate of pay was approximately €170. The Managing Director stated in evidence that he could not say with certainty what the Complainant’s net daily rate of pay was but he undertook to submit copies of the Complainant’s relevant pay slips. Post hearing the Respondent submitted a pay slip for the week ending the 6th March 2022 and it appears therefrom that the Complainant’s net daily rate of pay was €176.92.  

The Complainant’s complaint is that the wages properly payable to him for the week ending the 6th March 2022 were not paid to him on the basis that Respondent unlawfully deducted one-day’s wages on the 3rd March 2022 in breach of Section 5 of the 1991 Act.

The Respondent admitted that the Complainant was not paid his wages for the 3rd March 2022 however it submitted that it was a lawful deduction. The Respondent’s representative made reference to S.I. No. 146/2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 and submitted that Section 10 provides that disciplinary action may include suspension without pay and Section 11 which provides that there may be instances where more serious action, including dismissal, is warranted at an earlier stage. Reference was also made to the Respondent’s disciplinary procedures. It was submitted that the Respondent invoked fair procedures in accordance with its disciplinary procedure and that the Complainant received a first written warning for what the Respondent described as “numerous well founded allegations to which [the Complainant] admitted to doing” and that the escalation of adding a one-day’s suspension without pay was to highlight the severity of the Complainant’s conduct without providing a final written warning for four upheld allegations. 

Due to its brevity it is worth including the contents of the entirety of the Respondent’s disciplinary procedure hereunder:

Dismissal Procedures / Disciplinary Rules

The terms of the Redundancy Payments Acts, Minimum Notice and Terms of Employment Act 1973, Organisation of Working Time Act and the Unfair Dismissals Act 1977/1993 will be observed. In cases of unsatisfactory conduct or work performance, the following steps will be taken:

a) Verbal Warning

b) Written Warning

c) Final written warning and/or suspension without pay

d) Dismissal

Gross misconduct may lead to instant dismissal, without notice or written warnings.

Some Examples of Gross Misconduct :-

- theft or any other indictable offence

- falsification of records

- malicious damage

- physical violence

- provoking or threatening behaviour or instigating a fight

- contravention of safety regulations

- any other serious act of wilful misconduct

The company acknowledges the right of any employee to be accompanied by a trade union representative, shop steward or colleague. Representation by any other party is not permitted. The company also acknowledges the right of any employee to appeal against any disciplinary action taken against him/her.

No industrial action of any kind may be taken until such time as the disputes procedure has been exhausted and then only after the requirements of the Industrial Relations Act 1990 have been met. Failure to comply with this condition will be considered a serious breach of your contract of employment and may result in your dismissal.

It is apparent from the foregoing, and in particular the steps at a), b), c) and d) above, that whilst the Respondent’s disciplinary procedures provide for suspension without pay at step c), such a sanction is only prescribed to be in addition to or as an alternative to a final written warning.

While there was no documentation before me setting out the outcome of the disciplinary hearing it was accepted by the Complainant and the Respondent that the disciplinary sanction imposed on the Complainant was a sanction of a first written warning and a one-day’s suspension without pay and that this was communicated to the Complainant in writing on the 17th February 2022. The Complainant sought to appeal the sanctions imposed on him however the Managing Director confirmed by letter dated the 22nd February 2022 that the sanction of a first written warning and a one-day’s suspension without pay stood. By letter dated the 25th February 2022 the Managing Director confirmed that the one-day suspension without pay would take place on the 3rd March 2022 and set out the sanction as follows:

“1 day suspended without pay and date to be determined by the company.

Issued with first written warning which will be kept on your personnel file for a period of 12 months.

1 day suspended date without pay is now confirmed as Thursday 3rd March 2022.”

Whilst the Respondent’s Managing Director gave evidence that a double sanction of a first written warning and one day’s suspension without pay was imposed on the Complainant in order to emphasise the severity of what the Respondent regarded as serious health and safety breaches on the part of the Complainant, I find that there was no evidence before me that the deduction of one day’s wages was required or authorised by a term of the Complainant’s contract of employment. I find that the Respondent’s disciplinary procedures do not permit the imposition of suspension without pay in conjunction with a first written warning. The terms of the said procedure are clear in that a suspension without pay is only permitted in addition to or as an alternative to a final written warning.

Having considered the evidence adduced by the parties and the oral and written submissions made by and on behalf of the parties I find that there is no term or provision for unpaid suspension deductions from the wages of the Complainant in his contract of employment. I find that the only reference to suspension without pay is in the Respondent’s disciplinary procedure however the said procedures do not provide for unpaid suspension deduction from wages where the suspension without pay arises in conjunction with a first written warning as arose in instant case and the Complainant did not given his consent in writing to the deduction. I therefore find that the deduction made by the Respondent was not in accordance with Section 5(1) of the 1991 Act.

The Respondent submitted that the deduction of one day’s wages was a sanction imposed  for acts or omissions on the part of the Complainant, namely failing to take instructions from the relevant site supervisor on the 25th November 2021, walking off site on the 25th November 2021, an unauthorised absence on the 26th November 2021 and failing to take instructions from the relevant site supervisor on the 12th January 2022. It is noteworthy that neither the Complainant’s contract of employment or the letter of the 17th February 2022 setting out the outcome of the disciplinary hearing were before me despite the letter of the 17th February 2022 being referenced in the Respondent’s written submissions. Having considered the evidence adduced by the parties and the oral and written submissions made by and on behalf of the parties I find that there was no evidence before me that the deduction for the act or omission of the employee in this case was authorised by a term in the contract of employment nor was there evidence that a copy of the term or notice in writing of the existence and effect of the terms was furnished to the Complainant whether before the time of the act or omissions or otherwise and the deduction was not fair and reasonable having regard to all the circumstances. I therefore find that the deduction made Respondent was not in accordance with Section 5(2) of the 1991 Act.

In all the circumstances I therefore uphold the Complainant’s complaint and find that the wages which were properly payable to the Complainant were unlawfully deducted from the Complainant’s wages.

Redress

Redress is provided for in Section 6(1) of the 1991 Act 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 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities 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, or tip or gratuity as the case may be (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.

In accordance with Section 6 of the 1991 Act I determine that the Complainant is entitled to reasonable compensation equivalent to the unlawful deduction based upon the net amount of his wages at a daily rate of €176.92. The Complainant therefore is entitled to compensation of €176.92 being the equivalent to 1 days wages.

I decide that the complaint is well founded for the reasons set out above and I direct the Respondent to pay to the Complainant the net sum of €176.92 by way of compensation for the unlawful deduction of wages properly payable to the Complainant.