PWD2449

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00028774 (CA-00038269-001)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991. The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015. 

DECISION:

This is an appeal by Brian Healy, (the Complainant) against Adjudication Officer Decision ADJ-0002874 CA-00038269-001 given under the Payment of Wages Act 1991(The Act) in a claim that he suffered an unlawful deduction from his wages at the hands of his employer Pilvine Ltd (the Respondent). The Adjudication Officer held that the complaint was not well founded.

Background.

The Complainant commenced employment with the Respondent in 2016.  His employment terminated on the 23rd April 2021 by way of redundancy.  The Complainant submits that he was laid off from the 20th March 2020 to 1st July 2020. As he was not paid his wages for that period this constituted an unlawful deduction.  The Complainant submitted his complaint to the WRC on the 23rd June 2020. The time limits for this complaint as set out by the Act, are 24th December 2019 to 23rd June 2020. This case is linked to PW/23/87, TE/23/62, TE/23/61 and UD/23/136.

Summary of Complainant’s submission

The Complainant submitted that he suffered a loss of €5,000 when he was laid off for a ten-week period commencing 16th March 2020.  The following week he was asked to return the company van. It was his belief that he was laid off a week before any other employees and brought back later than other employees. The Complainant also submitted that there was no signed contract though he did accept in his sworn evidence that he was provided with a contract on the 19th March 2020 but he did not sign same.  The Respondent resumed trading in May 2020 and other Workers were brought back but he was not brought back until the start of July 2020. It was the Complainant’s submission that he did not believe there was any need for lay-off as the Respondent had plenty of work during the period.

The Complainants representative noted that the Respondent could not rely on section 11 of the Redundancy payment Act 1967 as there was no diminution of work during the period.  

 It was his submission that there was no contractual entitlement to lay the Complainant off, as he did not sign the contract, he was given on the 19th March 2020.  Under section 6 of the Act a deduction can only be consented to by an employee, by giving consent in writing, which the Complainant did not do, and there was no statutory document made or any instrument made under statute, which would have allowed the Respondent to make any deduction. Therefore, in those circumstances the deduction was an unlawful deduction from his wages.

Summary of Respondent’s submission

The Respondent submitted that, at a staff meeting on the 12th March 2020 all staff including the Complainant were informed that they were being laid off, as arising from Covid some clients had cancelled orders and there was no work in the Workflow. All staff were laid off at the same time. The Complainants layoff commenced on the 23rd March 2020. During the lay-off period some essential work was carried out by Mr McKay the Owner of the company. The business fully reopened in July 2020 but in the run up to that staff were brought back depending on their skill set and the needs of the Company. Sign fitting was the end product, so the Complaint was in the last phase of return to work. The Complainant was provided with an RP 9 form confirming he was on temporary lay-off and relied on that form to received state benefits.  During the period in question order reduced from an average of 280 orders per quarter to 140 orders, a significant reduction. Most orders received related to Covid signage and very few required fitting. The contract which was given to the Complainant on the 19th March 2020, contains a Lay-off/ Short-Time working clause and clearly indicates that no payment will be made for any period off Lay-off. While the Complainant did not sign the contract, neither did he offer any explanation for not signing the contract, or raise any concerns in respect of the contents of the contract.  He benefited under that contract both immediately before and when he returned from lay off in terms of his salary, annual leave and other entitlements.

The relevant Law

The Act at Section 5(1) 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(6) of the Act provides:

(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.

Discussion and conclusions

The High Court in Marek Balans v Tesco Ireland Limited[2020] IEHC 55, made clear that this Court, when considering a complaint under the Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made. That matter having been addressed; it is for the Court to determine whether the wages actually paid on the occasion were less than the wages which were properly payable on the occasion. If the wages actually paid were less than the amount properly payable, then the difference could be concluded to be a deduction within the meaning of the Act. If it is established that a deduction within the meaning of the Act had been made from the wages properly payable on the occasion, the Court would then consider whether that deduction was lawful.

 It is not disputed that the Complainant in this case was given a contract, and that the contract contained a clause providing for Lay-off without pay. The contract was given to the Complainant on the 19th March 2020, before the first Lay-off.  While the Complainant submitted that he did not sign the contract, it was not submitted that he had not performed under the contract i.e carried out the work required and received payment for same or had written to the Respondent advising that he was performing the terms of the contract under duress. There was no evidence before the Court that the Complainant had raised any issues with the Respondent in respect of the clause in his contract pertaining to Lay-off and Short-time work. The Court, therefore, finds that the contract was in force before, and in force at the time of the Lay-off. On that basis the Court determines that the Respondent was entitled to place the Complainant on Lay-off.

 The Complainant was paid up to and including the 20th March 2020, and as set out in the RP9 form given to the Complainant to facilitate his claiming state benefits, the Complainant was placed on temporary Lay-off on the 21st of March 2020.  As the Complainant was placed on Lay-off as provided for in his contract, no wages were properly payable for the period 21st March 2020 until he returned to work in July 2020.  As no wages were properly payable for the period there could not have been an unlawful deduction.

Decision

 The Court determines that as set out above no wages were properly payable during the relevant period, and therefore no unlawful deduction could have occurred.

The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
FC	______________________
24 July 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Fiona Corcoran, Court Secretary.