Complainant

Respondent

Parties

James  Quinn

Quinn Motors (Castlecomer) Limited Quinn Motors

Representatives

Mr Donnchadh Morgan BL instructed by Morrissey Minchin Solicitors

 Mr John Fitzgerald HR Consultant

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-00052463-001

30/08/2022

The Complainant was involved in a workplace incident arising from which an investigation and disciplinary process was instigated. The complaint concerns the Complainant’s payment during the process.

The Complainant commenced employment in the Respondent’s family business in or around 3 January 2005. The Complainant stated he was a loyal and diligent employee. He stated that he had encountered difficulties with the Dealer Principal (DP) since her joining the business. He stated that he was involved in a verbal exchange with another employee on 1 February 2022 but denied assaulting this person and maintained that his denial was acknowledged in the final outcome.  Arising from this exchange a complaint was made against the Complainant. The Respondent engaged an external third party to conduct an investigation on foot of which a disciplinary process was subsequently commenced. The Complainant took issue with the escalation of matters to a formal investigation and with the investigation process generally and he rejected its outcome. He also took issue with the disciplinary process including the involvement of the DP and he maintained the process was prejudged. The Complainant stated that as a result he suffered stress and serious upset for which he was treated by his GP.

Following the incident with the other employee, the Complainant was suspended on full pay with effect from the 3rd February 2022. This continued until the 28th February 2022 when the Complainant commenced lodging sick certs – which certs continued to be submitted up until 6 April 2022. Thereafter, the Complainant was not restored to paid suspension but was maintained on unpaid leave. In this regard, the Complainant stated that the Respondent had claimed that the paid suspension was for the purpose of the investigation process only and that he/the Complainant was not engaging with the disciplinary process – which suggestion the Complainant strongly disputed. The Complainant referred to an email from the Respondent’s Solicitor of the 22nd June 2022 which stated:

“We acknowledge the changed stance and reengagement with company procedures. James (Complainant) will recommence on Payroll with full pay from Monday 20th June, the date you confirmed this in writing”

The investigation upheld the complaint against the Complainant and a disciplinary meeting took place on the 5th July 2022. By letter of the 6th July the Respondent set out the outcome of the disciplinary process including various recommendations. In the letter the Complainant was advised  that “the appropriate sanction…..should be summary dismissal” but that in the alternative he was being reinstated with effect from the 11th July 2022 on his existing terms and conditions and that “The period of time when [he was] not active with the company will be deemed as a period of suspension unpaid”.

In his reply letter of the 8th July 2022 the Complainant advised that he would return to work on 18th July “in accordance with his terms and conditions of employment” and that he wished to appeal the decision to deem “his period of enforced absence from work” as unpaid suspension. The Complainant stated that in a letter received from the Respondent on the 14th July 2022 he was refused the right of appeal on the basis that the Respondent considered such an appeal was “cherry-picking parts of the decision”. The Respondent agreed to the Complainant availing of five days annual leave from 11 July up until his proposed return to employment on 18 July 2022.

The Complainant gave evidence and was cross examined. In his evidence the Complainant stated that he was owed 15 weeks pay – ie 14 weeks from 17 March to June 20th 2022 and one week in July – ie from 18 – 25 July 2022. Under cross examination the Complainant accepted the Respondent did not operate a paid sick leave scheme and he clarified that he availed of carry over annual leave and was granted two days paid sick leave days for the period 28 February to 17 March 2022. However, he also stated he should be paid for the entirety of his sick leave up to 6 April 2022 given the stress he endured due to the investigation and disciplinary process. In relation to the week 18 July – 25 July 2022, the Complainant stated this was for a pre-booked holiday but he accepted he had no further annual leave built up to cover this week and hadn’t notified the Respondent he was taking this extra weeks leave. It was put to the Complainant that he did not reply to emails and could not expect to be paid when he did not make himself available to engage with the disciplinary process which the Complainant did not accept. The Complainant referred to various allegations he had to endure and stated that he wanted his name cleared. The Complainant stated that he was paid €780/week gross including a pension contribution of €20/week paid by the Respondent.

It is the position of the Complainant that he was subjected to an unfair investigative and disciplinary process and that the retrospective and arbitrary imposition of unpaid suspension constituted a breach of his contract of employment and the Payment of Wages Act [1991-2017].

The Respondent stated that on foot of  the incident of the 1st February 2022 the DP received a written complaint of physical assault against the Complainant in this case. The Respondent stated that it was duty bound to investigate this complaint and that it acted with integrity throughout. The Respondent stated that it appointed an eminently qualified independent person to conduct the investigation and that the Complainant was placed on suspension with full pay whilst the investigation process was being carried out. The Respondent stated that the investigation concluded that the Complainant’s actions constituted gross misconduct and should be dealt with under the disciplinary procedure. The Respondent stated that the disciplinary process was due to commence on 1 March 2022 but was deferred as the Complainant became unwell. Thereafter, the Complainant certified his illness to the Respondent up until 6 April 2022. The Respondent stated that it was not notified by the Complainant that he was fit to return to work after 6 April 2022.

The Respondent stated that in 2022 it did not operate a paid sick leave scheme. Notwithstanding, it paid for two days sick leave and the Complainant availed of carry-over annual leave from the previous year. As a result the Complainant was paid up until 17 March 2022 and payment ceased from 18 March. The Respondent stated that the Complainant was refusing to cooperate with the disciplinary process and that following various exchanges he “agreed to reengage with the disciplinary process and was restored to the status of Suspended on Full Pay effective from Monday, June 20th”(2022).

The Respondent stated that whilst it regarded dismissal as the appropriate sanction, in light of the Complainant’s record of service and the representations made on his behalf, it reduced the sanction “from dismissal to reinstatement on Monday July 11th with no loss of service or status and the period of absence due to his non engagement with the disciplinary process to be deemed a period of unpaid suspension”.  In relation to the Complainant’s attempt to appeal this decision, the Respondent stated that it requested a statement of grounds of appeal and that as none were provided no appeal hearing took place. The Respondent stated that it advised the Complainant it was closing the appeal process and that the Complainant did not respond.

The DP gave evidence and was cross examined. The DP stated that she took advice in order to ensure a proper investigation and disciplinary process was conducted. In relation to the sanction, the DP stated that the last resort was dismissal for gross misconduct. She accepted there was no provision in the Respondent’s Company Handbook for the sanction of unpaid suspension but argued that a sanction needed to be applied, that she had discretion in the matter and that in all the circumstances it was a fair sanction. Under cross examination, the DP stated there were clear and rational explanations in relation to the Complainant’s payments and non-payments. In relation to the unpaid suspension, the DP stated that the Complainant was not paid because he was not adhering to the Respondent’s disciplinary process though she accepted – under questioning -  that the Complainant was not charged with non co-operation.  As regards the Complainant’s pay in July 2022, the DP stated that the Complainant availed of paid holiday leave from 11 July – 18 July 2022 and that the Complainant’s absence the following week – ie 18 - 25 July was “unexplained”.

The Respondent stated that it was duty bound as an employer to investigate a complaint of assault by an employee and that it conducted a fair and objective investigation and disciplinary process. It is the position of the  Respondent  that it was entitled to stop the Complainant’s payment on the basis that firstly, he refused to engage with the disciplinary process thereby prolonging matters unnecessarily and secondly, that the original proposed sanction was commuted “from dismissal to one of unpaid suspension and re-instatement”.

Section 1 of the Payment of Wages Act [1991-2017] sets out the definition of wages as “any fee, bonus or commission, or any holiday, sick and maternity pay, or any other emolument, referable to [the employee’s] employment, whether payable under [the] contract of employment or otherwise…”.

Section 5(1) of the Payment of Wages Act [1991-2017] sets out the parameters according to which deductions may be made from an employee’s wages:

“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) states as follows in relation to wages which are properly payable:

             “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”.

I have carefully considered the sworn evidence, submissions and documentation furnished and have come to the following conclusions:

·       There are differences of opinions between the parties in relation to the conduct of the investigation and disciplinary procedures. That being said, from the perspective of my function in making a decision pursuant to the Payment of Wages Act [1991-2017], I am satisfied that an incident occurred in the workplace on the 1st February 2022 and that as a result, the Respondent was entitled to initiate an investigation process. As the investigation concluded that gross misconduct had occurred the Respondent was then entitled to initiate its disciplinary policy. In relation to the Complainant’s entitlement to appeal, I am satisfied from all the evidence and documentation that the Complainant was afforded a right of appeal notwithstanding the reference to “cherry-picking”. In this regard I specifically refer to the Respondent’s email of 26 July 2022 which requested the Complainant “to set out the grounds upon which he is making the appeal….by close of business on Friday 29th July” ;

·       The Complainant was placed on paid suspension commencing 3/2/2022 and I am satisfied this was in accordance with the Respondent’s Disciplinary & Dismissal Procedures which provided for suspension of “an employee with full pay” in cases “which appear to involve serious misconduct”; 

·       From 28 February to 6 April 2022 the Complainant submitted sick certificates. From the evidence and submissions I am satisfied that no sick certificates were submitted after 6 April 2022. In this regard, I note the Respondent’s position that it was not notified the Complainant was fit to return after 6 April 2022. I also note a letter of 11/5/2022 from the Complainant’s legal representative to the Respondent which stated “Our client instructs that he is now certified fit to return to work”. The Complainant accepted under cross examination that the Respondent did not operate a paid sick leave scheme and stated that he utilised carry over annual leave and two days paid sick leave granted by the Respondent to secure payment up until 17 March 2022. The Respondent’s Handbook stated “Payment of wages for absence due to illness is at the company’s discretion but it generally unpaid in principle”. In all the circumstances I find that the failure to pay the Complainant between 18 March and 6 April 2022 was not an unlawful deduction from his wages as the granting of paid sick leave was discretionary and the deduction was authorised by the terms and conditions of the Complainant’s employment in force at the time;

·       There is no dispute that the Complainant was restored to the payroll on 20 June 2022 as per the evidence and email to him of 22 June 2022 which referred to “the changed stance and reengagement with company procedures”. The Complainant disputes that he was uncooperative with the disciplinary procedures whilst the Respondent maintains it was obliged to make a number of interventions to seek his continued engagement with the process. The outcome letter of 6 July 2022 stated the period of time when the Complainant was not active was to be regarded unpaid suspension. In her evidence the DP stated that the Complainant was not paid because he was not adhering to the Respondent’s disciplinary process though she accepted – under questioning -  that the Complainant was not charged with non co-operation. The minutes of the meeting held with the Complainant on 3 February 2022 advised him that his paid suspension was for the purpose of the investigation into the allegation which had been made against him by a fellow employee and  that “Suspension provides the opportunity to fully investigate all of the facts and is not a form of disciplinary action….”.  This statement was consistent with the terms of the Respondent’s Handbook – specifically its Disciplinary and Dismissal Procedures - which provided for paid suspension to enable the carrying out of an investigation and disciplinary process. The Disciplinary and Dismissal Procedures also provided for the other sanctions of verbal, written and final written warnings in addition to dismissal. Having considered all the evidence and submissions I am of the view that as per his terms and conditions of employment, the Complainant should have been restored to paid suspension after his sick leave was concluded – ie from 7 April 2022, that his properly payable wages from that date were in the nature of paid suspension and that the retrospective imposition of the sanction of unpaid suspension was contrary to his terms and conditions of employment;

·       By letter of 6 July 2022 the Complainant was advised that he was being re-instated with effect from 11 July 2022. The Complainant responded – via his legal representative – on 8 July 2022 confirming he would return on 18 July. The Complainant availed of annual leave to cover this additional week. The Complainant subsequently notified the Respondent that he would be returning to work on 25 July 2022. Having considered all the evidence and submissions, I am satisfied that any leave the Complainant took after his reinstatement on 11 July, should have been in accordance with his terms and conditions of employment. In circumstances where the Complainant did not identify before me any specific term or condition that would have entitled him to be paid from 18 July – 25 July 2022, I accept the position of the Respondent that the Complainant’s absence during this additional week was “unexplained”. Accordingly, I am satisfied that failure to pay the Complainant between 18 July and 25 July 2022 did not constitute an unlawful deduction from his wages.

CA-00052463-001

For the reasons outlined I decide this complaint is partly well founded on the basis that I consider the retrospective imposition of unpaid suspension from 7 April 2022 to 19 June 2022,  constituted an unlawful deduction of the Complainant’s wages contrary to the Payment of Wages Act [1991-2017]. Based on the Complainant’s annual gross weekly salary of €760, I order the Respondent to pay the Complainant the total gross amount which should have been payable to him during this period of time, subject to such statutory deductions as may apply. In addition, I order that the Complainant’s pension fund and annual leave be computed on the basis that the Complainant was entitled to full pay for the totality of the period from 7 April – 19 June 2022 inclusive.

Unpaid Suspension, Unlawful deduction of wages