Complainant

Respondent

Parties

Niamh Kelly

St Vincents 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-00058314-001

15/08/2023

The complaint was submitted to the Workplace Relations Commission on 15th August 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 8th December 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 €950.21. As the complaint was submitted on 15th August 2023, the cognisable period is the preceding 6 months prior to the referral of the complaint (16th February 2023-15th August 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 1st December 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 8th December 2022, the retrospection of the pay increases was properly payable to her. The complainant stated that she is owed €950.21 in respect of unpaid wages.

Preliminary Point – Time Limit

The respondent argued that the complaint is out of time as it was submitted outside of the statutory six-month time limit provided for under the legislation. The respondent contends that for the cognisable period of the complaint (16th February 2023 – 15th August 2023), the complainant was not in its employment and was not in receipt of any wages during that time. The respondent also pointed out that no extension of time had been requested by the complainant in respect of her complaint.

Substantive case

Notwithstanding its preliminary point, the respondent’s position is that the complainant was paid correctly for the period of her employment and received the additional 3% pay increase from 1st December 2022 until her resignation that took effect on 8th December 2022. In respect of the arrears of pay from 1st February 2022 to 1st December 2022, the respondent contends that when the payment of arrears was announced on 10th March 2023 and paid on 30th March 2023, the complainant was no longer in the respondent’s employment and therefore the payment was not properly payable to her.

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.

Timing of the complaint

 I note the respondent’s position that the complainant was not in the employment during the cognisable period of the complaint and its view that the complaint was out of time. However, the date of the arrears payment (30th March 2023) was within the cognisable period of the complaint so the complaint.

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 the complainant received a 3% pay increase on 1st December 2022 and was paid correctly until her resignation on 8th December 2022. On the date the payment of the arrears 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 arrears 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, I find that the complaint is not well founded.

Wages properly payable