Complainant

Respondent

Parties

Fionnuala  Barrett

St Vincent's Private Hospital Ltd

Representatives

  In person

 IBEC

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-00056362-001

27/04/2023

The complaint was submitted to the Workplace Relations Commission on 27th April 2023 and relates to an alleged breach of the Payment of Wages Act, 1991 concerning the application of a 3% pay increase to the complainant. The applicable date of the pay increase in question is 1st December 2022 which was paid retrospectively to 1st February 2022 at a later date. As the complainant ceased employment on 30th November 2022, it is the retrospective application of the pay increase from 1st February 2022 to the end of the employment that forms the basis of the complaint. This is quantified at €1074.91. As the complaint was submitted on 27th April 2023, the cognisable period is the preceding 6 months prior to the referral of the complaint (28th October 2022- 27th April 2023) which encompasses the date that the retrospection was applied (30th March 2023)

The complainant is seeking the retrospective application of the pay increase from 1st February 2022 until her resignation which took effect on 30th November 2022. The complainant argues that the pay increases were applied retrospectively to 1st February 2022 and that, as she was in the employment on that date, and remained in the employment until 30th November 2022, the retrospection of the pay increases was properly payable to her. The complainant stated that she is owed €1074.91 in respect of unpaid wages.

The respondent’s position is that the complainant was paid correctly for the period of her employment and that the pay increases applied were not payable to her as she was not in its employment on the date the increases became payable on 1st December 2022 and was several months out of employment when the retrospective element of the pay increases were notified on 1st March 2023 and paid on 30th March 2023.

 I note that the respondent, as a private organsiation, does not receive State funding. Although not obliged to do so, it has applied the terms of national wage agreements when its financial position allows. In respect of the wage increase that was applied with effect from 1st December 2022, the CEO wrote to all staff on the 24th November 2022 in the following terms:

“On behalf of the Board, I am pleased to inform you that the increased rate of pay (in line with HSE rates) will be paid with effect from December 1st 2022. All staff who are on a “live” payroll on that date will be eligible for payment of the higher rates. Payment of the retrospection/back pay as referenced in paragraph 2.a. above will be made in 2023 when the financial position of the Hospital allows.”

The retrospective element of the wage increases was paid to staff on 30th March 2023.

The Applicable Law

Section 5(6) of the Payment of Wages Act, 1991 states as follows:

(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.

Conclusions

Having considered the submissions of both parties to this complaint, I find that on the two dates in question, when the pay increases became payable (1st December 2022) and on the date that the retrospection was paid (30th March 2023) the complainant was no longer in the employment of the respondent.

In my view, the complainant was paid in line with her contract of employment while employed and after she ceased to be an employee was not entitled to receive the pay increases in question. On that basis, the complainant was paid all monies that were properly payable to her, and the respondent did not breach the legislation as claimed.

Having considered the submissions of both parties and for the reasons stated, I find that the complaint is not well founded.

Payment of Wages, wages properly payable