CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision ADJ-00043477 issued on 01/09/2023 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043477
Parties:
| Complainant | Respondent |
Parties | Katarzyna Mruklik-Iglinska | Ocwm Law Llp |
Representatives |
|
|
Complaint(s):
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-00054280-001 | 23/12/2022 |
Date of Adjudication Hearing: 15/06/2023
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The parties were afforded an opportunity to examine and cross-examine each other’s evidence. All evidence was given under oath or by affirmation.
Background:
The complainant says the respondent topped up her statutory maternity leave by €1,496.45. She left their employment three months after her return from maternity leave and this amount was deducted from her final pay. The complainant says this is an illegal deduction. The respondent says this was done in accordance with their maternity leave policy. |
Summary of Complainant’s Case:
The respondent started her employment with the respondent on 18 February 2019 as a Legal Administrator/Legal Secretary. She went on maternity leave in October 2021 and she submits the respondent decided to top up her statutory maternity pay. This totalled €1,496.45. She says there was no clawback provision in her contract or the employee handbook. Nor did she sign anything before she went on maternity leave regarding conditions for this top-up. She returned to work in September 2022 and worked until December 2022. She left the respondent’s employment on 16 December 2022. On 21 December she received a payslip which showed a deduction of €1,496.45. She emailed the company who processed pay for the respondent and was told this was “Maternity pay repayment to OCWM Law of €1,496.45 in respect of maternity top up payment paid to you during maternity leave which is in accordance with the OCWM policy as advised to us is repayable by you to the firm as you are leaving employment within the 6 months of returning from maternity leave”. The complainant says she was not aware of that policy and she did not agree to this term of employment and this amounts to an illegal deduction. |
Summary of Respondent’s Case:
The respondent submits the complainant commenced employment with them on 15 February 2019 as a receptionist. The complainant moved on to being a legal assistant/legal administrator/legal executive. The respondent had no difficulties with the complainant as an employee. The complainant returned from maternity leave on 5 September 2022. On 17 November 2022 the complainant handed in her letter of resignation, with the last day of work as 16 December 2022. Contractually a 3 month notice period was required, but the respondent accepted a 1 month notice period. The respondent submits the complainant’s final payments were entirely correct and duly explained by their accountants. |
Findings and Conclusions:
The complainant received a payment to top up her statutory maternity leave from the respondent. This totalled €1,496.45. She left three months after returning from maternity leave. The top-up payment was deducted from her final pay. The respondent says this is in accordance with their maternity policy. The complainant says she did not sign up to any such policy when she signed her original contract. She also says she was not subsequently made aware of any such policy and she did not sign any agreement regarding the repayment. Section 5 (1) of the Payment of Wages Act states: “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.”
At the hearing Philip O’Connor, Partner, for the respondent gave evidence that the complainant was the first employee to go on maternity leave. This caused them to draw up a Maternity Policy, which included the provision “The above maternity pay top up contributions will be contingent on an undertaking being provided to the Employer that the employee will return to work for the Employer for a minimum period of 6 months after the full statutory entitlement and any further unpaid leave has been taken. The employee will be required to provide an undertaking in writing otherwise the Employer will make no salary payment during maternity leave. Where an employee leaves within the 6 months after return from maternity from maternity leave then the maternity leave top up amounts paid to the employee during maternity leave will be required to be repaid to the Employer.” On 17 June 2021 the complainant asked if she would receive maternity pay during her maternity leave. On 30 June the Office Manager replied “Apologies for the delay in reverting to you on your maternity leave query but a combination of you being the first person in OCWM to fall into this policy requirement and as I am moving on, we had to accelerate putting this policy into our Handbook. Please find attached the policy requirements and any query please speak to Philip or myself or one of the partners if any follow up queries.” Mr O’Connor sent a further email to the complainant on 30 June 2021 stating the respondent’s maternity policy allowed for a top up and gave details of what this meant for the complainant. The complainant replied, thanking Mr O’Connor for the information. The complainant says she agreed to the top up figures but there was no agreement to any terms attached to the top-up and she has no recollection of receiving any updates to the Employee Handbook. The issue for me to decide is whether the repayment of the maternity top up payments had become “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 the employee has given his prior consent in writing to it.” The email sent by the Office Manager on 30 June 2022 refers to attaching the “policy requirements”. The written submission provided by the respondent in advance of the hearing did not show the policy had been attached. The respondent was given an opportunity to submit a further copy of the email with whatever was attached, after the hearing. They did this immediately after the hearing. This new evidence was sent to the complainant who denied having received the policy. From the submission made after the hearing I am satisfied the new maternity policy was sent to the complainant on 30 June 2022. However, she was not asked to sign an undertaking in writing about the six months return period, which is an express provision of the maternity policy. I therefore conclude the respondent did make a deduction from the complainant’s wages in contravention of the Payment of Wages Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons given above I find the complaint is well founded and I award the complainant €1,496.45. |
Dated: 01st September 2023
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Key Words:
Illegal deduction – payment of wages |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043477
Parties:
| Complainant | Respondent |
Parties | Katarzyna Mruklik-Iglinska | Ocwm Law Llp |
Representatives |
|
|
Complaint(s):
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-00054280-001 | 23/12/2022 |
Date of Adjudication Hearing: 15/06/2023
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The parties were afforded an opportunity to examine and cross-examine each other’s evidence. All evidence was given under oath or by affirmation.
Background:
The complainant says the respondent topped up her statutory maternity leave by €1,496.45. She left their employment three months after her return from maternity leave and this amount was deducted from her final pay. The complainant says this is an illegal deduction. The respondent says this was done in accordance with their maternity leave policy. |
Summary of Complainant’s Case:
The respondent started her employment with the respondent on 18 February 2019 as a Legal Administrator/Legal Secretary. She went on maternity leave in October 2021 and she submits the respondent decided to top up her statutory maternity pay. This totalled €1,496.45. She says there was no clawback provision in her contract or the employee handbook. Nor did she sign anything before she went on maternity leave regarding conditions for this top-up. She returned to work in September 2022 and worked until December 2022. She left the respondent’s employment on 16 December 2022. On 21 December she received a payslip which showed a deduction of €1,496.45. She emailed the company who processed pay for the respondent and was told this was “Maternity pay repayment to OCWM Law of €1,496.45 in respect of maternity top up payment paid to you during maternity leave which is in accordance with the OCWM policy as advised to us is repayable by you to the firm as you are leaving employment within the 6 months of returning from maternity leave”. The complainant says she was not aware of that policy and she did not agree to this term of employment and this amounts to an illegal deduction. |
Summary of Respondent’s Case:
The respondent submits the complainant commenced employment with them on 15 February 2019 as a receptionist. The complainant moved on to being a legal assistant/legal administrator/legal executive. The respondent had no difficulties with the complainant as an employee. The complainant returned from maternity leave on 5 September 2022. On 17 November 2022 the complainant handed in her letter of resignation, with the last day of work as 16 December 2022. Contractually a 3 month notice period was required, but the respondent accepted a 1 month notice period. The respondent submits the complainant’s final payments were entirely correct and duly explained by their accountants. |
Findings and Conclusions:
The complainant received a payment to top up her statutory maternity leave from the respondent. This totalled €1,496.45. She left three months after returning from maternity. The top-up payment was deducted from her final pay. The respondent says this is in accordance with their maternity policy. The complainant says she did sign up to any such policy when she signed her original contract. She also says she was not subsequently made aware of any such policy and she did sign any agreement regarding the repayment. Section 5 (1) of the Payment of Wages Act states: “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.”
At the hearing Philip O’Connor, Partner, for the respondent gave evidence that the complainant was the first employee to go on maternity leave. This caused them to draw up a Maternity Policy, which included the provision “The above maternity pay top up contributions will be contingent on an undertaking being provided to the Employer that the employee will return to work for the Employer for a minimum period of 6 months after the full statutory entitlement and any further unpaid leave has been taken. The employee will be required to provide an undertaking in writing otherwise the Employer will make no salary payment during maternity leave. Where an employee leaves within the 6 months after return from maternity from maternity leave then the maternity leave top up amounts paid to the employee during maternity leave will be required to be repaid to the Employer.” On 17 June 2021 the complainant asked if she would receive maternity pay during her maternity leave. On 30 June the Office Manager replied “Apologies for the delay in reverting to you on your maternity leave query but a combination of you being the first person in OCWM to fall into this policy requirement and as I am moving on, we had to accelerate putting this policy into our Handbook. Please find attached the policy requirements and any query please speak to Philip or myself or one of the partners if any follow up queries.” Mr O’Connor sent a further email to the complainant on 30 June 2021 stating the respondent’s maternity policy allowed for a top up and gave details of what this meant for the complainant. The complainant replied, thanking Mr O’Connor for the information. The complainant says she agreed to the top up figures but there was no agreement to any terms attached to the top-up and she has no recollection of receiving any updates to the Employee Handbook. The issue for me to decide is whether the repayment of the maternity top up payments had become “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 the employee has given his prior consent in writing to it.” Firstly, the email sent by the Office Manager refers to attaching the “policy requirements”. No attachment was provided in evidence. The respondent was given an opportunity to submit a further copy of the email with whatever was attached, after the hearing, but they made no submission. I therefore find it difficult to accept the complainant was given sight of the new maternity policy. Secondly, she was not asked to sign an undertaking in writing about the six months return period, which is an express provision of the maternity policy. I therefore conclude the respondent did make a deduction from the complainant’s wages in contravention of the Payment of Wages Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons given above I find the complaint is well founded and I award the complainant €1,496.45. |
Dated: 01st September 2023
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Key Words:
Illegal deduction – payment of wages |