PWD2450

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00034982 (CA-00045756-006)

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. 

 The following is the Court's Decision.

DECISION:

This is an appeal by Ringsend Community Services Forum CLG of a decision of an Adjudicator Officer dated 12 August 2022 under the Payment of Wages Act 1991 in a claim made by Sueann Moore against her former employer.

The Respondent did not attend the hearing at first instance.  The Adjudication Officer found that the complainant was well founded. This appeal is linked to UDD2432, TED2416 and MND249.

For ease of reference the parties are given the same designation as they had at first instance.  Hence Sueann Moore is referred to as “the Complainant” and Ringsend Community Services Forum CLG is referred to as “the Respondent”.

Position of the Complainant

The Complainant worked her full hours from home in the period from 10 May 2021 to 31 May 2021. She did not receive any payment for this work.

The Complainant had expressly raised health and safety concerns in relation to being in the office. Her concerns were two-fold, firstly, she and her family had underlying health conditions and were particularly vulnerable to Covid 19 infection, and secondly, her workplace grievance was not investigated. The Complainant repeatedly raised objections to attending work in a building in which the only other occupant was the individual she had raised the grievance against, and that individual’s daughter.

On 5 May 2021 despite being fully aware of the Complainants medical conditions and health and safety concerns the Respondent demanded that she attend work in person and report to her line manager. She informed the Respondent of her intention to continue working from home, and the reasons for that course of action. Despite the Respondents explicit refusal to investigate her grievance unless she signs a new contract, the Complainant was instructed to attend work, or she would be removed from payroll.

Despite the Complainant’s explanation on several occasions for her reluctance to attend the office, her wages were stopped in breach of contract, statute, fair procedures, and natural justice.

The Respondent breached section 5 of the Act, when despite the Complainant working her full contractual hours, the Respondent deducted the entirety of her wages due for that period. The Complainant worked for the entirety of the period at issue. She did not agree to work for free. She accrued working time, "referable to" her "employment' during the relevant period, and as such is entitled to be paid for same.

The deductions made from the Complainants salary do not meet any of the criteria set out within the Act. The monies deducted were and remain lawfully owing to the Complainant. The Complainant therefore seeks the maximum compensation permissible pursuant to section 6 of the Payment of Wages Act, 1991.

Position of the Respondent

The Complainant refused to attend her workplace during the relevant period in question, despite repeated instructions from the Board to do so.  She was notified that her continued failure to comply with the terms of her contract and attend her workplace would result in her removal from payroll.

As the Complainant refused to attend her workplace, she is not entitled to any payment for the period in question. However, as a gesture of goodwill, the Respondent paid the Complainant for the period up to the end of the notice period.

The Respondent disputes that the Complainant worked from home.

Relevant Law

Section 5 of the Payment of Wages Act 1991 provides in part as follows:

(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.

(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.

Deliberations and Findings

The Complainant seeks payment of her normal wages for the period from 10 May 2021 to 31 May 2021, when her employment ceased.

To ground a claim under the Payment of Wages Act 1991 the Court needs in the first instance to ascertain what wages are properly payable. Having established that the Court then needs to ascertain whether there was a shortfall in the proper payment and, if that was the case, whether the shortfall arose for one of the reasons set out in section 5(1) above.

What Amount is Properly Payable?

The starting point for assessing what is properly payable to an individual is the contract of employment. It is accepted that the Complainant had a contractual entitlement to a weekly rate of pay of €575 gross during the relevant period.

The Complainant’s contract of employment states that her place of work is at the Spellman Centre Irishtown Road. It is accepted the Complainant did not attend her workplace during that period.

It is clear from the contract that the right to payment of wages is contingent on the Complainant attending and working from her place of work subject to any agreement to the contrary.

It is clear from the parties that there was no agreement that the Complainant be allowed to work from home. Notwithstanding that the Complainant submits that she worked her full hours from home in the period from 10 May 2021 to 31 May 2021, for which she received no payment.

The parties are in dispute about what work, if any, was undertaken by the Complainant during the relevant period. No witness testimony was proffered by either party to assist the Court in resolving that matter.

Some correspondence between the parties was opened to the Court but was not probative of the fact that the Complainant carried out her contractual duties from home. 

No evidence was presented to the Court that the Complainant was entitled to absent herself from the workplace, or to work from home during the relevant period from 10 May 2021 to 31 May 2021.

The Complainant received an instruction from her employer to physically attend her workplace, and clearly forewarned that her wages would be stopped if she failed comply with that instruction.

Having regard to all the circumstances, the Court finds that the Complainant failed to attend her workplace as required by her contract of employment. In such circumstances, the Respondent is not obliged to pay the Complainant her wages when she failed to attend for work as instructed.

Accordingly, the Court finds that the Complainant was not entitled to payment of any wages in the period from 10 May 2021 to 31 May 2021, and no wages were properly payable to her during that time.

Decision

The Court finds that the complaint is not well founded.

The Court determines that the Complainant did not suffer an unlawful deduction from her wages during the relevant period for the within complaint.

The decision of the Adjudication Officer is overturned.

The Court so Decides.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
7 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.