FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES: CHILD AND FAMILY AGENCY TUSLA - AND - MS RITA O NEILL DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s)ADJ-00039411 CA-00051064-001 DETERMINATION: This matter came before the Court by way of an appeal and cross-appeal from a decision of an Adjudication Officer (ADJ-00039411/CA-00051064-001, dated 11 May 2023) under the Payment of Wages Act 1991 (‘the Act’). Ms Rita O’Neill (‘the Complainant’) appealed from the first instance decision by Notice of Appeal received in the Court on 6 June 2023. The Child and Family Agency – Tusla (‘the Respondent’) cross-appealed by Notice of Appeal received on 9 June 2023. The Complaint There are two elements to the Complainant’s complaint under the Act. Firstly, she submits that the Respondent made an unlawful deduction of €1,111.78 from her penultimate salary payment immediately prior to her retirement date. Secondly, the Complainant submits that she was paid in arrears throughout her employment and that she worked a fortnight in hand at the commencement of her career with the National Education and Welfare Board (‘NEWB’) from which organisation her employment transferred to the Respondent. She values this alleged underpayment at €1,966.52 gross/ €1,498.91 net. Brief Factual Background The Complainant commenced employment as a clerical officer with NEWB on 6 January 2004. The Respondent organisation was established on 1 January 2014 pursuant to the Child and Family Agency Act 2013.In 2014, the Complainant’s employment transferred to Respondent on her pre-existing terms and conditions and with her continuity of service preserved. Following its establishment, staff transferred into the Respondent from several different organisations each with different payroll arrangements and frequencies. For the purposes of administrative efficiency, the Respondent agreed arrangements with the trades unions representing staff to move to a single payroll with effect from 1 January 2015. To ensure that staff were not disadvantaged by the transition to the new payroll system, they were paid a technical adjustment payment in their final salary payment in December 2014. The amount of the technical adjustment payment in the Complainant’s case was €1,111.78. The Respondent undertook a detailed programme of engagement and communication with staff prior to the transfer to the new unified payroll system during which staff were informed that all monies paid to employees by way of a technical adjustment payment were fully repayable at a rate convenient to individual employees but that any amounts remaining unpaid prior to an individual’s retirement or resignation would automatically be deducted from salary. The Complainant retired on 25 March 2022. It is common case that €1,111.78 was deducted from her salary on 31 March 2022 under the heading “Technical Adjustment”. Submissions regarding the first element of complaint The Complainant submits that she never received an amount of €1,111.78 in her salary by way of a technical adjustment. She submits, therefore, that the deduction in that amount from her salary on 31 March 2022 is an unlawful deduction within the meaning of the Act. The Respondent submits that the Complainant received a technical adjustment of €1,111.78 to her salary on 31 December 2014 in the context of the transfer of staff from their pre-existing payroll arrangements to the new unified payroll system that commenced in January 2015. The Respondent further submits that had this payment not been made to the Complainant at that time, she would have received a salary payment of €185.00 for the first pay period in January 2015 and would have had to wait until the second pay period to receive her full fortnightly salary on 15 January 2015. Finally, the Respondent submits that the Complainant was fully informed – as were all staff, collectively and individually – that the amount of the technical adjustment had to be repaid in full. Decision regarding the first element of complaint Having carefully considered the Parties’ written and oral submissions, the Complainant’s payslips and the communications from the Respondent to staff in the context of the move to the new unified payroll system in late 2014/early 2015, the Court is satisfied that that the Complainant was paid €1,111.78 by way of a technical adjustment payment in December 2014 and was on full notice that this amount was fully repayable to the Respondent. The Court is also satisfied that the Complainant did not take steps to repay the amount of the technical adjustment thereafter and that the amount was therefore liable to be deducted from her salary on her retirement and was duly deducted at that time. The deduction of €1,111.78 from the Complainant’s salary on 31 March 2022 was not, therefore, an unlawful deduction. The Court accordingly upholds the decision of the Adjudication Officer with respect to this aspect of the Complainant’s claim and the Complainant’s appeal from that part of the Adjudication Officer's decision fails. Submissions regarding the second element of complaint The Complainant submits that she was at all times throughout her career with NEWB and with Respondent paid in arrears. She further submits that she worked a fortnight in hand at the commencement of her employment with NEWB and should, therefore, have been paid an additional fortnight’s salary on her retirement from the Respondent. She submits she received no such payment and the Respondent’s failure to make the payment is an underpayment for the purposes of the Act. It is accepted on behalf of the Respondent that the Complainant was paid in arrears at all material times. It is, however, denied that the Complainant worked a fortnight in hand at the commencement of her employment with NEWB. The Respondent exhibited the Complainant’s payroll records from January 2004 that demonstrate that the Complainant commenced employment with NEWB on 6 January 2004 and received her first salary payment on Thursday 15 January 2004 for the pay period 5 January to 16 January 2004. Decision regarding the second element of complaint The evidence before the Court clearly demonstrates that the Complainant is mistaken in her assertion that she was required to work a fortnight in hand at the commencement of her employment with NEWB. She was paid in arrears in the normal way, on a fortnightly basis, from the commencement of her employment. She was not, therefore, due a further fortnightly salary payment on cessation of employment as she alleges. This aspect of her claim is, therefore, not well-founded; the decision of the Adjudication Officer in relation to this matter is set aside and the Respondent’s appeal succeeds. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |