Complainant

Respondent

Parties

John  Graham

Aer Lingus

Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Rachel Barry Arthur Cox

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-00050712-001

17/05/2022

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 6 of  the Payment of Wages Act, 1991 and has submitted that he has not been paid the amount due to him (CA-00050712-001).

Much of this evidence was in conflict between the parties and in certain aspects was of a particularly sensitive nature. Accordingly, have taken the time to carefully review all the evidence both written and oral.  I have noted the respective position of the parties.   I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties under statute.  I can confirm I have fulfilled my obligation to make all relevant inquiries into these complaints.

The Complainant commenced employment with the Respondent as cabin crew on the 13th March 2012. The Complainant has been on a career break since 21st June 2021 and is due to return on the 26th May 2024.

In relation to the Payment of Wages Act complaint, the Complainant availed of the enhanced career break leave program which commenced on the 21st June 2021 and will continue until the 26th May 2024.  The agreement stated, inter alia, “you will receive one payment equivalent to 10% of basic salary.. and will be paid in December 2021”. The Complainant submitted that the agreement does not stipulate 10% of one year pay and therefore alludes to him getting 10% pay for the duration of his career break of three years. The Complainant received €3,139.63 which he believes is roughly equal to 3% of his pay over a three-year period. The Complainant submitted he is entitled to approximately €7,000.00

These Complaints were received by the Workplace Relations Commission on the 17th May 2022.

The Respondent accepts the background facts and the timeline in relation to the Complainant’s employment with the Respondent.

In relation to the Payment of Wages complaint, the Respondent submitted that the Complainant received all payments due to him in connection with his incentivised career break. The Complainant signed an agreement before starting his career break which expressly provided that his career break would be unpaid.  The agreement confirmed he would receive an incentive to take up a career break of “one payment equivalent to 10% of basic salary less any statutory deductions” to be paid in December 20 21.

The Respondent does not accept the Complainants submission that a term should be implied into the agreement to read that additional amount, approximately  €7000  is due to him as 10% of three years basic salary instead of 10% of one years basic salary because the career break was for a duration of three years. The Respondent submitted the incentive payment made to employees was not linked to the duration of the career break and there is no basis in which such term may be implied.

It is the Respondents position that the Complainant should not be entitled to succeed in relation to this Complaint.

I have carefully listened to the evidence tendered and submissions made in the course of this hearing by both parties.

CA-00050712-001

It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions for the material time of this complaint.  Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee as “…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:  Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i)any payment in respect of expenses incurred by the employee in carrying out his employment, (ii)any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii)any payment referable to the employee's redundancy, (iv)any payment to the employee otherwise than in his capacity as an employee, (v)any payment in kind or benefit” 

Section 5(1) of the Payment of Wages Act 1991 provides: “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.”  The remainder of the Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1.R. 478, it was stated a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under the Payment of Wages Act 1991.  Each case will turn on its own particular facts and in the instant case, it will be necessary to ascertain  whether the aforesaid agreement can be interpreted to mean that the Complainant was entitled to 10% of three years basic salary.

It is well established law that “Terms can be implied into a contract of employment in a variety of ways - such as by statute, by law, by custom and practice and by the conduct of the parties.  Once a term is implied into a contract, it will have the same effect as if it was written down and expressed between the parties.” (Regan & Murphy Employment Law, Bloomsbury, 2nd Edition [2017], Paragraph 3.48) The aforesaid agreement provided “one payment equivalent to 10% of basic salary less any statutory deductions..”

In consideration of the above,  I am satisfied that there is no basis for the Complainants submission that he is entitled to 10% of his basic salary for the entire duration of the enhanced career break and accordingly this Complaint is not well founded.

I find that the Complaint (CA-00050712-001) made pursuant to Section 6 of  the Payment of Wages Act, 1991 is not well founded.