ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038961
Parties:
| Complainant | Respondent |
Parties | Patricia Murray | John F. Kennedy Trust |
Representatives | Padge Reck | Des Kavanagh Des J. Kavanagh HR Consultancy Limited |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977 | CA-00050583-001 | 12/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00050583-003 | 12/07/2022 |
Dates of Adjudication Hearing: 15/02/2023 and 26/09/2023
Workplace Relations Commission Adjudication Officer: Christina Ryan
Procedure:
In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts 1977 (as amended) following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of a remote hearing on the 15th February 2023 and the 26th September 2023 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
I received and reviewed documentation from both parties prior to the hearing.
At the adjudication hearing the parties were advised that in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021 hearings before the WRC are now held in public and, in most cases decisions are not anonymised. Neither party objected to the hearing being held in public and having their names listed in the decision when published on the WRC website.
The parties were advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants gave evidence under oath/affirmation.
I allowed the right to test the oral evidence presented by way of cross-examination.
Patricia Murray attended the hearings and was represented by Padge Reck. John F. Kennedy Trust was represented by Des Kavanagh of Des J. Kavanagh HR Consultancy Limited. Sean Connick attended the hearings and gave evidence on behalf of John F. Kennedy Trust.
The parties are named in the heading of the decision. For ease of reference, for the remainder of the document I will refer to Patricia Murray as “the Complainant”, John F. Kennedy Trust as “the Respondent” and Sean Connick, the Respondent’s Chief Executive Officer, as “the CEO”.
The CEO provided the correct legal name for the Respondent which is cited in this Decision.
Background:
The Complainant commenced employment with the Respondent on the 1st February 2003. She holds the position of Chef de Partie and earns €546.00 gross per week and €460.00 net per week. She works 39 hours per week.
The Complainant considered herself to be dismissed from her employment with the Respondent when she was informed by the CEO, on the 10th December 2021, that she was being redeployed from her position as Chef de Partie to the reception/tour guide/retail/Grab & Go functions following the making of a complaint of bullying against a fellow worker.
The Complainant submitted a complaint form to the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 12th May 2022 wherein she claimed that she was constructively dismissed from her employment on the 10th December 2021. She added a claim for loss of earnings by email dated the 12th July 2022. The Respondent denied that the Complainant had been dismissed from her employment stating that she remained employed by the Respondent to date and further it denied that there had been an unlawful deduction of the Complainant’s wages. |
Preliminary Issue
The Respondent raised a preliminary issue that the Adjudication Officer did not have jurisdiction to hear the complaint under the Unfair Dismissals Act 1977 (as amended) (hereinafter referred to as “the Unfair Dismissals Act”) in circumstances where no dismissal had taken place.
The Complainant stated in her complaint form submitted to the WRC on the 12th May 2022 that she was constructively dismissed and that her employment with the Respondent ended on the 10th December 2021. At the hearing before the WRC the Complainant denied that she resigned from her employment with the Respondent insisting that she had been dismissed by the Respondent when they redeployed her from her role as a Chef de Partie in the kitchen to the reception/tour guide/retail/Grab & Go functions. She stated in evidence that the Respondent had previously engaged in bullying and oppressive behaviour towards her to force her to either take redundancy and/or accept a severance package and that her redeployment in December 2021 was the last push. The Complainant did not leave her employment, however, arising from the alleged unreasonable conduct of the employer and/or a fundamental breach of a contract term by the Respondent and she accepted that she continues to be an employee of the Respondent without any break in service. In response to a question raised by the Adjudication Officer the Complainant confirmed that whilst she regarded the redeployment as a “push towards the threshold of the door” she was not “pushed through the door”.
The CEO denied that the Complainant had been bullied or subjected to oppressive behaviour by the Respondent stating that the first time these allegations were made by the Complainant was after she submitted her complaint to the WRC. The CEO gave evidence that it was the Complainant who had raised with him the possibility of redundancy or a severance package and that the redeployment to a role which she had previously done arose only in circumstances where the Complainant had made a serious complaint as against a fellow worker and had informed the CEO that she was in fear for her safety and was suffering from anxiety and could not return to work in the kitchen. According to the CEO the redeployment of the Complainant was to protect her health and safety and facilitate her return to work and return to the Respondent’s payroll pending a formal investigation of her bullying complaint as against a fellow worker.
The Respondent’s representative stated that the unfair dismissal claim was misconceived as the Complainant’s employment with the Respondent at the date of the alleged termination was still in existence and that the Complainant has remained in uninterrupted employment with the Respondent to date.
The Unfair Dismissals Act states at Section 1:
“dismissal”, in relation to an employee, means—
(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or
(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;
The Complainant and her representative accepted that her dismissal did not come within either (a), (b) or (c) above but insisted that she had been dismissed from her employment within the meaning of the Unfair Dismissals Act.
Taking account of the evidence of the Complainant and the witness on behalf of the Respondent and the oral submissions and documentation presented on behalf of the parties I find that the alleged dismissal on the 10th December 2021 could not have occurred as the Complainant continued in the employment of the Respondent after this date and continues to be in the employment of the Respondent to date. I therefore find that I have no jurisdiction to hear the unfair dismissals complaint.
Summary of Complainant’s Case:
CA-00050583-001 See Preliminary Issue above. CA-00050583-003 The Complainant stated that she earns €460.00 net per week. The Complainant’s representative submitted that on the 10th December 2021, while the Complainant was on bereavement leave, she received correspondence from the CEO stating that he was removing her from her role as Chef de Partie and redeploying her to the reception/tour guide/retail/Grab & Go functions. There was no change in her rate of pay. The Complainant was unhappy that she was redeployed without prior consultation. The Complainant stated that from the 10th December 2021 until the 22nd August 2022 she did not work because she was not allowed to work. According to the Complainant her position was taken away from her so she could not attend work and she was not paid her wages. The Complainant stated that she had a contractual entitlement to 10 days’ sick pay for 2022 and she exhausted her contractual sick pay on the 24th February 2022 and that from the 1st March 2022 she was not in receipt of her wages from the Respondent. The Complainant and her representative stated that the relevant period for the purpose of the complaint was the 1st March 2022 to 12th July 2022. She stated that at no stage during that period did she attend work or work any hours and that she was in receipt of Illness Benefit during that period. |
Summary of Respondent’s Case:
CA-00050583-001 See Preliminary Issue above. CA-00050583-003 The Respondent’s representative stated that the Respondent had no prior notice of the Complainant’s claim of loss of earning prior to the complaint being submitted by e-mail to the WRC on the 12th July 2022 and that the complaint was not formalised by the Complainant until the 30th November 2022. The Respondent accepted that the Complainant was not paid wages during the period from the 1st March 2022 to the 12th July 2022 but submitted that any losses sustained during the relevant period were not caused by the Respondent. Following an alleged incident with a fellow worker on the 7th November 2021 the Complainant made a verbal complaint a verbal abuse however she refused to comply with the Respondent’s procedures and despite repeated requests failed to provide the CEO with a written complaint detailing what allegedly occurred. On the 10th December 2021 a decision was made to redeploy the Complainant to a position within the same complex on the ground floor in order to protect her health and safety and support her return to work. It was submitted by the Respondent’s representative that the CEO was responding to the Complainant’s declaration of fear and anxiety in the workplace by creating an opportunity for her to work in an area in which she would have no contact with the accused and in which all of her earnings would be protected. The Complainant was notified of her right to appeal the decision made on the 10th December 2021 however she did not do so. The Complainant did not initiate the Respondent’s grievance procedure and she failed to put the details of her complaint of bullying by a fellow worker in writing or to engage with the Respondent in any meaningful manner to resolve matters. Between November 2021 and August 2022 the Complainant was on compassionate leave, annual leave, certified sick leave and uncertified sick leave. The Respondent submitted that the Complainant’s wages for the period from the 1st March 2022 to the 12th July 2022 were not properly payable because she did not work during that period and she had exhausted her entitlement to contractual sick pay on the 24th February 2022. |
Findings and Conclusions:
In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing. CA-00050583-001 See Preliminary Issue above. CA-00050583-003 Relevant Law: Payment of Wages Act 1991 In considering whether the Complainant’s wages were the subject of an unlawful deduction as alleged, it is necessary to examine the relevant provisions of the Payment of Wages Act 1991 as amended (hereinafter referred to as “the 1991 Act”). Section 1 of the 1991 provides the following definition of wages: "wages", in relation to an employee, means 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: … The above definition includes pay. The Complainant claims she is due her wages for the period from the 1st March 2022 to the 12th July 2022. Section 5 of the 1991 Act serves to regulate certain deductions made and payments received by employers. Section 5(1) of the 1991 Act 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 1991 Act addresses the circumstances in which wages which are properly payable are not paid: 5(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. The non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer. In the case of Marek Balans v. Tesco Ireland Limited [2020] IEHC 55 the High Court made it clear that the WRC, when considering a complaint under the 1991 Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made. If it is established that a deduction within the meaning of the 1991 Act had been made, the WRC would then consider whether that deduction was lawful. Therefore, the question to be decided is whether the wages claimed by the Complainant were properly payable. The Complainant stated in evidence that she was seeking loss of earnings for the period from the 1st March 2022 to the 12th July 2022. It was common case that the Complainant earned €460.00 net per week. She accepted that she had exhausted her contractual sick leave entitlement on the 24th February 2022 and that thereafter she was in receipt of Illness Benefit. She also accepted that she did not work at all during the period from the 1st March 2022 to the 12th July 2022 but claimed that she was entitled to be paid her wages for that period because her position was taken away from her and consequently, she could not attend work and she was not paid her wages. The Respondent submitted that the Complainant’s wages for the period from the 1st March 2022 to the 12th July 2022 were not properly payable because she did not work during that period, she was certified as unfit to attend work and she had exhausted her entitlement to contractual sick pay on the 24th February 2022. The Respondent denied that the Complainant's position was taken away from her or that she was prevented from attending work. The CEO gave evidence that the Complainant made a verbal complaint of abuse by a fellow worker on the 7th November 2021 and that she was requested to put her complaint in writing but refused to provide the CEO with details of what had allegedly occurred. The Complainant was on annual leave from the 15th to the 28th November 2021, she returned to work on the 29th November 2021 but had a family bereavement on the 2nd December 2021 and was then on compassionate leave followed by four days annual leave until the 12th December 2021. The Complainant was off sick due to work related stress from the 13th December 2021 to the 26th December 2021, followed by uncertified sick leave and from the 1st January 2022 she used her remaining holidays from 2021 up to and including the 23rd January 2022 and thereafter the Complainant submitted further sick certificates covering the period from the 27th January 2022 until the 30th April 2022. While no further medical certificates were received from the Complainant over the next three months, she did submit a medical certificate in August 2022 stating that she was unfit to attend work from the 1st May 2022 to an unknown date. The CEO gave evidence that the Complainant advised him in writing on the 29th November 2021 that she was afraid to return to work along-side the fellow worker against whom she had made the complaint and that she was receiving medical care for fear and anxiety. Therefore, in order to support the Complainant and protect her health and safety and facilitate a return work, on the 10th December 2021 a decision was made to redeploy the Complainant from the kitchen to the reception/tour guide/retail/Grab & Go area within the same complex on the ground floor. The CEO gave evidence that the redeployment was not a demotion and was in accordance with her contract of employment. In redeploying the Complainant into the reception/tour guide/retail/Grab & Go area of the complex he was respecting her position and giving her an opportunity to develop the Grab and Go service which required a Chef, and which was a project the Complainant and the CEO had previously discussed. It is apparent from a consideration of the documentation submitted to the WRC that the Complainant was notified of her right to appeal the decision made on the 10th December 2021 to redeploy her however she did not do so and that the Respondent made a number of attempts to support the Complainant’s return to work. I find that the Complainant did not initiate the Respondent’s grievance procedure and she failed to put the details of her complaint of bullying by a fellow worker in writing or to engage with the Respondent in any meaningful manner to resolve matters. It was common case that the Complainant did not work at all during the period from the 1st March 2022 until the 12th July 2022. In the case of Fuller v. Minister for Agriculture [2008] IEHC 95, in holding that “once an employee is unavailable for work they are not entitled to be paid …”, Gilligan J quoted with approval the following passage from Dean v. Wilson [1909] 2 IR 405 at 409: “There was no contract to pay it unless it was earned. If she had not worked at all during the week, though the contract for service remained, she would not have been entitled to any payment; and could it be said that when, being entitled to nothing, she was paid nothing, the non-payment was an offence under the Act? Further, even if this non-payment of the 2s. which she did not earn could be possibly held to be a deduction from the sum contracted to be paid to her, it could not, in my opinion, be held to be a deduction for, or in respect of a fine. The non-payment took nothing from her to which, in any view, she had become entitled, or to which, when the week ended, she could have ever become entitled. It was simply withholding payment of what she had not earned, and never could earn.” Taking account of the evidence of the Complainant and the witness on behalf of the Respondent and the oral submissions and documentation presented on behalf of the parties and the legal authorities cited above I find that in order for an unlawful deduction of wages to be found under the 1991 Act there needs to be an entitlement to the wage in the first instance. I am not satisfied that the Complainant has discharged this onus of proof. I find that in circumstances where she did not work any hours, she did not have an entitlement to be paid any wages. Therefore, having regard to all the circumstances I find that this complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 and requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts 1977 (as amended) requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of the 1977 Act.
CA-00050583-001 – As no termination of the employment contract occurred on the 10th December 2021 I have no jurisdiction to hear this complaint. CA-00050583-003 – For the reasons set out above, I decide that the complaint is not well-founded. |
Dated: 24/05/2024
Workplace Relations Commission Adjudication Officer: Christina Ryan
Key Words:
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