Complainant

Respondent

Parties

David  Watterson

Health Service Executive  Galway Primary Care

Representatives

  Self-Represented

Damian Mularkey HSE Employee Relations

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-00059502-001

19/10/2023

The Complainant has been employed by the Respondent since 2002. He is currently employed as a Podiatry Clinical Manager and he earns €3,449.62 gross / €1,856.65 net per fortnight. He referred his complaint under the Payment of Wages Act 1991 (hereinafter after referred to as “1991 Act”) to the Workplace Relation Commission (hereinafter referred to as “the WRC”) on the 19th October 2023 wherein he claimed that the Respondent unlawfully deducted the sum of €1,364.00 from his wages on the 19th January 2023. At the hearing before the WRC the Complainant revised the sum and confirmed that the correct sum was €924.00. The Complainant accepted that the Respondent was entitled to deduct the sum of €924.00 from his wages but disputed the manner of the deduction.

Having raised the issue of time limits in its written submission furnished to the WRC on the 1st March 2024 I gave the Respondent an opportunity to set out the basis for its objection to the matter being heard. Section 41(6) and 41(8) of the 2015 Act were explained to the Complainant and the Complainant was informed that generally a complaint must be referred to the WRC within 6 months from the date of the contravention of the Act. It was agreed between the parties that the deduction occurred on the 19th January 2023 and that the Complainant referred his complaint under the 1991 Act to the WRC on the 19th October 2023, nine months after the alleged contravention of the 1991 Act. I asked the Complainant why he delayed in referring his complaint and whether he could show reasonable cause for any delay. I indicated that I would address the issue of time limits in the Determination.

Preliminary Objection – Time Limits

The Complainant accepted that he did not refer his complaint under the 1991 Act to the WRC within six months of the contravention of the 1991 Act. By way of explanation the Complainant stated that his complaint has been active with the Respondent on a continual basis since the 15th March 2023 when he attempted to have his grievances managed through the Respondent’s internal processes. He stated that he exhausted all internal avenues before he was left with no choice but to refer the matter to the WRC on the 19th October 2023.

The Complainant stated that he followed the Respondent’s internal pathways by first raising the matter of the deduction from his wages, along with several other matters, to the Respondent in a complaint under the Respondent’s Dignity at Work policy on the 15th March 2023. The Complainant received correspondence from the Respondent’s HR department on the 3rd May 2023 detailing the preliminary screening results of the Dignity at Work complaint. A representative from the Respondent’s HR department advised the Complainant that the matters raised by him would be best set out as grievances under the Respondent’s Grievance and Disciplinary Policy.

On the 23rd May 2023 the Complainant submitted a grievance in writing by e-mail to his line manager and a Stage 1 grievance hearing took place on the 2nd June 2023. The Complainant stated that he received the outcome of the Stage 1 grievance hearing on the 17th July 2023 which concluded that “There is a financial regulation which deals with overpayments and recoupment of same. Clearly, the Finance Department was in breach of its own regulation in dealing with this matter. Therefore, I am upholding your grievance on this point.”

On the 1st August 2023 the Complainant took four weeks unpaid leave and on or about the 4th or 5th September 2023 he returned to his substantive post. The Complainant stated that he had a lot going on in work and in his personal life and that he was trying to navigate the internal process and deal with his grievance regarding the deduction from his wages internally. He thought that there would be a follow up by someone from the Respondent’s Finance Department, either with an apology or action points, but this never happened and he never received any correspondence from the Respondent stating that the monies deducted from his wages on the 19th January 2023 would be repaid to him given that his Stage 1 grievance was upheld.

According to the Complainant, the process was severely delayed by the Respondent and the Respondent was in breach of its own policy which provided that Stage 1 hearings should be completed on the same day. The Complainant submitted that he attempted to engage with the Respondent’s internal processes and only after they had been exhausted did he submit his complaint to the WRC. He stated that there was a delay with the submission of his complaint to the WRC as the internal process took over four months to complete but that in retrospect he should have recognised the delaying tactics employed by the Respondent and that in May 2023 he should have submitted his complaint to the WRC within the required time frame. He stated that he trusted the Respondent to give him a fair hearing and deal with the complaints raised by him in a timely fashion but that that did not occur. He requested that his attempts to resolve matters internally and exhaust the internal procedures be considered as reasonable cause for the delay in referring his complaint to the WRC under the 1991 Act and that an extension of the relevant time period be granted.

Substantive Issue

At the outset of the hearing the Complainant confirmed that the figure set out in the WRC complaint form was incorrect and that his complaint was that the sum of €924.00 was unlawfully deducted from his wage.

The Complainant commenced a period of sick leave on the 21st November 2022. He returned to work on a phased basis  from the 17th April 2023, initially one day per week and increasing until he returned full time in June 2023.

On the 19th January 2023 the Respondent deducted the sum of €1,364.00 from the Complainant’s wages. The Complainant stated that he had no notice of this deduction and only discovered that monies were going to be deducted from his wages when he rang the Respondent’s payroll department on the 18th January 2023 after his pay slip for Pay Period 04 had been published. He contacted the Respondent’s Finance Department the same day to question the deduction. He received a response on the 20th January 2023 which stated that “[as] some of the notification of sick leave were not received on time in finance from local HR and this sick leave was during the Christmas period, this resulted in a large deduction. It is my duty to recoup as much as possible to ensure an overpayment does not occur. We do not notify employees about these deductions. If there is any variance in the amount received from the DEASP and the amount I have deducted, please email me a statement from the DEASP stating the dates of sick leave and the amount paid to you in respect of those dates.”

The Complainant made reference to the High Court decision in Marek Balans v. Tesco Ireland Limited [2020] EIHC 55 and submitted that the WRC must first establish the wages which are properly payable to an employee on the occasion before considering if a deduction has been made. The Complainant referred to his pay slip for Pay Period 04 detailing the deduction of €1,364.00 and stated that his pay slip should have detailed Illness Benefit of - €440.00 not - €1,364.00 and that his taxable pay for the relevant period should have been €2,940.00. According to the Complainant these were the wages properly payable to him.

The Complainant stated that an extra €924.00 was deducted from his wages without prior notification. The total amount deducted from his wages on the 19th January 2023 represented over six weeks of Illness Benefit payments which should have been, according to the Complainant, deducted at a rate of €440.00 across three pay packets. It was the Complainant’s assertion that the Respondent acted unlawfully and in contravention of the Respondent’s National Financial Regulations, specifically NFR B3 Employee Administration, Payroll and Expenses by taking an extra €924.00 from his wages on the 19th January 2023 without any prior notification of the deduction. According to the Complainant the €924.00 constituted an overpayment and should have been managed as such.

In response to questions from the Adjudication Officer the Complainant confirmed that he did not dispute that the sum of €924.00 represented an overpayment and he did not dispute that the Respondent was entitled to deduct the monies from his wages. He stated that he had a grievance with the manner of the deduction and how the Respondent managed the overpayment. According to the Complainant the Respondent should have reached out to him in advance of deducting the monies from his wages and informed him in writing that the sum of €924.00 would be deducted from his wages on the 19th January 2023.

Preliminary Objection – Time Limits

By way of preliminary objection the Respondent submitted that pursuant to Section 41(6) of the 2015 Act the WRC does not have jurisdiction to hear the within complaint.

The Respondent referred to Section 41(6) of the 2015 Act and submitted that in the absence of reasonable cause for the delay a complaint which is submitted more than six months from the date of contravention to which the complaint relates cannot be entertained by an Adjudication Officer. The Respondents submitted that the complaint concerns a deduction which arose on the 19th January 2023 which is nine months previous to the date on which the complaint was received by the WRC on the 19th October 2023.

The Respondent noted that the Complainant submitted that exceptional circumstances existed which justify his delay in referring the complaint to the WRC however the Respondent submitted that regard should be had to the decision of the Labour Court in Gaelscoil Thulach nan Og v. Joyce Fitzsimons-Markey (EET0034).

The Respondent submitted that the engagement of the Complainant in a complaint which was made against an individual member of staff is not an exceptional circumstance which warranted the Complainant delaying in bringing the complaint to the WRC. Without prejudice to that argument the Respondent submitted that should the Adjudication Officer determine that the engagement with the Respondent’s Dignity at  Work Policy did amount to an exceptional circumstance the Respondent submitted that the same did not prevent the Complainant from referring the complaint with the WRC. Further the Respondent submitted that the Stage 1 decision issued on the 17th July 2023 however following receipt of the said decision the Complainant waited a further three months before referring the complaint to the WRC. The Respondent submitted that such a delay is not reasonable in light of the applicable time frame set out in Section 41 of the 2015 Act and it did not accept that the time taken to process the Complainant’s complaint amounted to a delaying tactic as alleged by the Complainant particularly where the Complainant waited a further three months before referring the complaint.

In response to questions from the Adjudication Officer the Respondent acknowledged that whilst it had made reference to both “reasonable cause” and “exceptional circumstances” in its oral and written submissions the relevant test in section 41 of the 2015 Act is “reasonable cause”.

Substantive Issue

The Complainant commenced a period of sick leave on the 21st November 2022. On the 18th January 2023 the Complainant emailed the Respondent’s local Finance Department regarding a deduction of “over €1200” to be taken from his salary with regard to an Illness Benefit overpayment.

According to the Respondent, the basis for the deduction was that the Complainant was erroneously paid his full salary while being entitled to recoup Illness Benefit from the Department of Employment Affairs and Social Protection (hereinafter referred to as “DEASP”).

On the 19th January 2023 the Respondent deducted the sum of €1,364.00 from the Complainant’s wages. The Respondent noted that the fact of the overpayment of €924.00 was not disputed by the Complainant and that the Complainant accepted that a deduction of €440 was due in Pay Period 04. According to the Respondent the deduction of €924.00 was made on the 19th January 2023 in order to avoid backdating a large amount in future weeks when the Complainant was due to go on half pay on the 20th January 2023.

On the 15th March 2023 the Complainant made a complaint to the Respondent as against the conduct of the Complainant’s line manager. That complaint encapsulated multiple issues including the Complainant’s Dignity at Work complaint concerning his line manager’s alleged delay in providing the Finance Department with the Complainant’s sick leave details. The Complainant converted his Dignity at Work complaint into a grievance and the internal process regarding that complaint concluded by way of Stage 1 decision which issued on the 17th July 2023. In relation to the deduction on the 19th January 2023 the decision noted that the Respondent’s Finance Department breached its own regulation in dealing with the deduction of monies from the Complainant’s wages. The decision was made in the context of a complaint raised by the Complainant against an individual, the Complainant’s line manager, and did not determine that the wages deducted were not properly recoverable by the Respondent. It was submitted by the Respondent that the wages deducted on the 19th January 2023 were properly recoverable by the Respondent and did not amount to an unlawful deduction within the meaning of section 5 of  the 1991 Act.

According to the Respondent, the Complainant’s contract of employment notes that the policies and procedures set out within the Respondent’s Employee Handbook form part of the Complainant’s contract. The Respondent’s Employee Handbook notes that overpayments must be repaid to the Respondent in accordance with the National Financial Regulations. The Respondent referred to HR Circular 10/221 – Public Service Sick Leave Scheme – Change to waiting days for Department of Social Protection (DSP) Illness/Injury Benefit and HSE HBS Form Notification of DPS. Under the public service sick leave scheme the amount of illness benefit or occupational injury benefit which employees may be eligible to claim subject to satisfying the relevant DSP qualifying conditions is factored into the employees’ sick pay payment from the Respondent.

In the Respondent, such DSP benefits are deducted at source by payroll. All of the Respondent’s employees are required to inform the Respondent of the amount of illness or injury benefit they are eligible to receive from DSP during periods of medically certified absence. Employees must submit a Payroll Notification Form directly to their local payroll department. This requirement was introduced from the 1st January 2018 in HSE HR Circular 005/2018 and arose because DSPC issuing notifications of employee illness/injury benefit payments directly to employers. As the amount of illness/injury benefit payments employees may be eligible to receive can vary it was submitted that it was essential that the Complainant obtains the information from DPS and informs the Respondent directly to assist in ensuring correct sick pay calculations for him. The Respondent makes deductions from DSP payments as source. As of the 1st March 2024 the Complainant had not submitted a Payroll Notification Form or DPS payment statement to the Respondent.

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.

The first matter for me to address is the Respondent’s preliminary objection regarding time limits. At the conclusion of the hearing I advised the parties that if following my consideration of the preliminary objection I concluded that I have no jurisdiction to hear the complaint I will not proceed to consider the substantive issue.

Preliminary Objection – Time Limits

Sections 41(6) and 41(8) of the 2015 Act set out the relevant time limits for referral of complaints to the WRC; a complaint must be presented within 6 months of the date of contravention to which the complaint relates, which may be extended to 12 months where it is established that the failure to present the complaint within 6 months was due to reasonable cause.

The Complainant is a longstanding employee with the Respondent. It is not disputed that on the 19th January 2023 the sum of €924.00 was deducted from the Complainant’s wages and that this is the relevant date of contravention for a complaint pursuant to the 1991 Act. The Complainant referred his complaint to the WRC on the 19th October 2023, outside the 6-month time limit as provided for in Section 41 of the 2015. The time limit may be extended up to 12 months where I am satisfied that the failure to present the complaint within the 6 month period was due to reasonable cause.

The well-established test for granting an extension of time for reasonable cause is set out in the Labour Court decision of Cementation Skanska (formerly Kvaerner Cementation) v. Carroll (DWT0338) wherein the Court held:

 “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In O’Donnell v. Dun Laoghaire Corporation [1991] 1 ILRM 301 at 315 Costello J in the High Court construed the term “good reasons” as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show … is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v Brennan [1981] IR 181).”

The test is an objective one and the onus is on the Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of “reasonable cause”.

The Complainant accepted that he referred his complaint to the WRC outside of the statutory time limit. He sought an extension of the statutory timeframe on the grounds that he had engaged with the Respondent locally on the matter and that having a raised a grievance regarding the manner of the deduction on the 19th January 2023 ,which found in his favour, the Respondent failed, refused and/neglected to act on foot of the said findings. He requested that his attempts to resolve matters internally and exhaust the internal procedures be considered as reasonable cause for the delay in referring his complaint under the 1991 Act and that an extension of the relevant time period be granted.

The Respondent’s representative outlined the Respondent’s objection to the matter being heard on the grounds that the complaint was referred outside of the statutory timeframe and that the Complainant has not established “reasonable cause” so as to allow the cognisable period provided for in the 2015 Act to be extended.  The Respondent submitted that the Complainant did not offer a credible reason for the delay or establish that the reasons relied upon both explained and excused the delay and therefore the Complainant did not satisfy the test for “reasonable cause”.

In Business Mobile Security Ltd t/a Senaca Limited v. John McEvoy (EDA 1621) the Labour Court held that the claim was statute barred stating:

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.”

I have also had regard to the decision in Skelly v. Dublin City Council (DWT212) wherein the Labour Court held that:

“A complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for delay.”

I am satisfied that the same principles apply in the instant case and am of the view that the Complainant cannot circumvent the time limits set out in section 41 of the 2015 Act by seeking to rely on a subjective view that the Respondent would resolve the matter locally. This erroneous belief should not have prevented him from complying with the statutory time limit for referring his complaint to the WRC.

I note that whilst the Complainant accepted in evidence that the Respondent was entitled to deduct the overpayment of €924.00 from his wages, he was not anticipating such a large deduction being made from his wages on the 19th January 2023 and was upset at the Respondent’s failure to communicate with him in writing in advance of him discovering on the 18th January 2023 that the deduction would be made the following day. Whilst I have sympathy for the Complainant, who I found to be an honest witness, in the circumstances of this case I cannot find that the Complainant has satisfied the test for establishing “reasonable cause” as required under section 41 of the 2015 Act and arising from this conclusion I find that time cannot be extended.

For the reasons set out above, I find that the Complainant has not established that he was prevented from referring his complaint within the time limit due to reasonable cause. Accordingly, I find that I do not have jurisdiction to determine this case under the 1991 Act as it was not submitted within the required time period and the Complainant has not established that he was prevented from doing so due to reasonable cause as per section 41 of the 2015 Act.   

I find that I do not have jurisdiction to determine this complaint under the Payment of Wages Act 1991 as it was not referred within the required time limit and the Complainant has not established that he was prevented from doing so due to reasonable cause as per Section 41 of the Workplace Relations Act 2015.     

In the circumstances, the complaint is not well-founded.

Time Limits