Complainant

Respondent

Parties

Niamh  Dillon

Blue Diamond Drama Academy Clg(in Liquidation)

Representatives

Anne O'Connell Anne O'Connell Solicitors

Stephanie Tierney Solicitor/Conor Duff BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00063688-001

24/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00063688-002

24/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00063688-003

24/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064142-001

18/06/2024

The Complainant worked as an Artistic Director with the Charity.

The Charity was set up to make space in Ireland’s creative communities for people with intellectual disabilities.

On or about September 2023 the Complainant alleges it was agreed that her salary would increase from €45K to €56K.

The increase was to become payable once the programme commenced and that was October 2023.

The increase was never paid.

The Complainant stated that it was properly payable. The Respondent stated that it was payable subject to funding being received and that funding was never received. If the Charity’s finances were in order, then it would have been paid. However, the Charity is now in liquidation which clearly attests to the fact that the increase was not capable of being paid. This is not about a payment properly due when a company is in liquidation. The funding to pay an increase never was received by the Respondent and the receipt of that funding was the condition that would allow for the salary increase.

It is not in dispute that the Complainant is owed the following gross salary between April 2024 and September 2024 of €3750 per month based on her agreed contractual salary of the €45k without the disputed salary increase.

The Complainant stated that her increase was approved by the Board and, she draws on a contemporaneous email dated Tuesday 24th April 2024 which records an agreement between her and a Board member that she would be paid her salary increase and back pay. She stated that the Board member agreed that her backpay would be paid and that a representation was made on or about the 20th of March 2024 to that effect by that member.

A colleague Ms Kate Sheridan, CEO of the Charity who resigned in early 2024, who attended at the Board meeting also confirmed that the increase was approved in the application of funding but not paid due to funding delays. She stated that funding was in place but not drawn down.

A funding application form was opened which detailed that a salary of €56,000 would be paid to the Lead Teacher, who Ms Sheridan said was Ms Dillion, from October 2023 and the existing salary before the increase would be paid for September 2023, as the Drama Course would begin in October 2023.

The Respondent stated that if the funding had been drawn down the Charity would not be in liquidation. The increase was conditional on funding being in place.

No evidence had been given at the hearing to confirm that the Board had agreed to the increase.

The contemporaneous note records the Complainant’s assertion that her salary would increase but not that it was approved. It has little probative value.

The form relied upon to detail a salary of €56,000 is an application form and has no probative value other than what the salary costs would be if the funding had been received.

The claim relating to an unpaid salary increase for the months of October 2023 to April 2024 are out of time. It is accepted that her salary based on a salary of €45k was not paid from April to September 2024. However, subsequently one month’s gross salary was paid that was overdue.

The Respondent called no witnesses.

The factual matrix of this case tends to show that an agreement was made with the Complainant based on the higher salary. The Respondent called no witnesses. The CEO gave evidence that an increase was agreed and that was contained in a funding application. The Complainant produced a contemporaneous note that referred to the increase and backpay.  The oral evidence by both the Complainant that the increase was agreed to, the evidence of her CEO and the supporting documentation all tend to favour the claim that the increase was agreed to and to take effect when the training programme began which originally was planned to occur in September 2023 but commenced in October 2023.

At that date her salary would increase from €3750 to €4666.67 an increase of €917.67 a month based on the new annual salary of €56K.

That increase was never paid.

The Respondent argued that the increase that is claimed which is denied is also statute barred from the 1st of October 2023 to March 2024.

The parties agree that the Complainant’s salary is owing for the period commencing April 2024 to September 2024 and one month was paid at the old salary rate of €3750. This means that a payment of €18,750 gross is due and not in issue based on the pre increase salary of €45K.

A board member agreed on or about the 20th of March 2024 that backpay would be honoured. That is a representation that can be relied upon based on a contemporaneous note by the Complainant along with her sworn testimony that it is accurate and true.

 However, there is no evidence that the board approved the increase.

 What the factual matrix does show based on the CEO’s evidence, the contemporaneous note and the funding application and the evidence of the Complainant that it was in fact approved. Having regard to the sum of evidence given at the hearing and as the Respondent did not attend to present their case based on evidence, I find the evidence presented by the Complainant to be credible and probative that a salary increase was in fact approved to take effect in October 2023. It is also the case that back pay due was accepted as owing in March 2024 for the period October 2023 to March 2024. The Complainant did receive payment of one month’s salary that was owing and that must be accounted for in what is now properly payable.

I note that in Regan Employment Law (Bloomsbury 2017) at paragraph 28.25:

In Alert One Security Ltd v Khan, the Labour Court extended time in circumstances where the complainant was both ignorant of how to process a complaint and was relying on the assurances given to him by the employer that he was either receiving his legal entitlements or that those entitlements would be met. The Court regarded it as ‘well settled’ that a material misrepresentation which caused or contributed to a delay in presenting a complaint could constitute ‘reasonable cause’ which both explained the delay and provided a justifiable excuse for same.

While Counsel stated that the payments allegedly properly payable claimed between October 2023 and March 2023; if they were due which is denied, are no longer payable as they are statute barred. It was also argued that no application has been made to extend time for reasonable cause. The Solicitor for the Complainant stated that no application has been made to extend time, as the payment for back pay was accepted to be due and would be paid without condition on or about March 2024. That in turn meant that a contractual obligation to make good the backpay was agreed and entered into between the Complainant and her Employer on or about March 2024 and therefore is in time.

The Respondent has presented no evidence at the hearing. I accept the evidence of the Complainant, and the email sent in April 2024 which is a contemporaneous note that payments due related to the period October 2023 to March 2024 would be paid. That undertaking was made on or about the 20th of March 2024. In turn based on the CEO’s evidence that an increase was approved; I must infer what this increase amounted to. Once a party states that a payment is owed at a date and will be paid that in turn forms a new representation and a contractual obligation to pay. This means that the payment of wages regarding backpay was properly payable at the next date of normal salary payments. The Complainant was clear that it was an undertaking. That representation was made in late March 2024 which at the earliest date would be paid in the April 2024 payroll. The complaints were lodged on the 25th of May 2024 and the 18th of June 2024, so the salary owing for the period October 2023 to March 2024 are in time as the representation made in March 2024 to honour those payments are contractual payments that are properly payable on or about the next payroll in April 2024.  This effectively means time began to run again from March 2024 and those payments not made up to that date are properly payable from March 2024 and do not require an application to extend time.

While Counsel for the Respondent argued that the application fund form opened was no more than an application and not confirmation of funding, I prefer the CEO’s evidence who had direct experience of how the funding would be drawn down once approved in principle. In other words, the funding had been approved and the application form which stated the new higher salary for the Complainant was approved as the funding was approved and the application was the means to draw down the funds. It was not an application made from scratch seeking new funding rather the means to receive funding that was approved.

While Counsel argued that an entity in liquidation can’t honour commitments that are conditional, I have determined that the decision in fact had been made to give the increase in October 2023 and was unconditional other than it would become effective when the training began, which was October 2023. The Charity’s activities have now been absorbed by an Education Training Board and that in turn must call into question the continuation of this Charity. However, the funding does continue for the activity previously carried out by the Charity.

The claims detailed by the Complainant are as follows:

Claim 1 – lodged on 24th May 2024: Failure to pay April 2024 salary properly payable on 25th April 2024 in the amount of €4,674.25. Failure to pay salary increase of €924.25 per month from 25th November 2023 to 25th April 2024, totalling €5,545.50. Failure to pay salary increase of €924.25 on 25th September and 25th October 2023, totalling €1,848.50 A

Claim 2 – lodged on 18th June 2024: Failure to pay May 2024 salary in the amount of €4,674.25. A copy of the –

Claim 3 – lodged on 5th July 2024: o Failure to pay June 2024 salary in the amount of €4,674.25.

The Complainant lodged additional claims to the WRC against the Respondent under the Payment of Wages Act 1991 (the “1991 Act”) for the following unlawful deductions:  Failure to pay July 2024 salary properly payable on 25th July 2024 in the amount of €4,674.25.  Failure to pay August 2024 salary properly payable on 25th August 2024 in the amount of €4,674.25 Failure to pay September 2024 salary properly payable on 25th September 2024 in the amount of €4,674.25.

Based on my determination that all outstanding payments were brought back into time on or about March 2024 based on the acceptance by a Board member that they were owed and would be paid; the following payments properly payable were not paid:

The salary increases due from October 2023 which was an additional €917.67 per month to March 2024 = 6 x €917.67 =€5,506.02 gross became payable again from March 2024 which is based on the new salary of €56k.

The Complainant is also due 5 months gross salary at the higher amount from April 2024 to September 2024 5 x €4,666.67= €23,333.35 when she received no payment whatsoever and the differential of €917.67 as one month’s salary at the lower rate was paid.

Total owing is €23,333.35 + €5506.02 + €917.67 = €29,757.04

CA-00063688-001

was not paid any salary on 25th April 2024. Despite bringing this to the Respondent's attention and urging them to rectify the matter urgently, it has still not been paid.

CA-0006388-002

My salary was due to increase from €45,000 to €56,091 per annum on 25th September 2023. However, this salary increase has never been paid. The above figure relates to pay not received over a period of 6 months. I am owed the following pay from the following pay periods: €924.25 from November 2023, €924.25 from December 2023, €924.25 from January 2024, €924.25 from February 2024, €924.25 from March 2024 and €924.25 from April 2024. Despite bringing this to the Respondent's attention and urging them to rectify the matter urgently, it has still not been paid

CA-0006388-003

My salary was due to increase from €45,000 to €56,091 per annum on 25th September 2023. However, this salary increase has never been paid. This complaint relates to the increase in pay which I am owed in relation to 2 pay periods:  €924.25 from September 2023 and €924.25 from October 2023. On 20th March 2024, I met with a member of the Board of Directors, and I received an undertaking that I would be paid this backpay. However, this was not paid on the next pay date of 25th April 2024. Despite bringing this to the Respondent's attention and urging them to rectify the matter urgently, it has still not been paid.

CA-0006388-004

This complaint is related to CA-00063688. I was not paid my salary as properly payable and owing on 25th May 2024.

This Adjudication decision is merged with Adj- 00052769 and the following complaints:

CA-00064586-001; CA-00066316-001; CA-00066316-002; A-00066316-003 and these complaints amended the original complaint and have been captured in the detail of the decision and the Complainants submissions.

Section 6 of the Act states:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of [section 4C or  as respects a deduction made by an employer from the wages or tips or gratuities] of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be] (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

Section 5(6) of the Act states:

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.

Arising from the undertaking made to pay backpay made on or about the 20th of March 2024, I determine that the back pay for the period commencing October 2023 to March 2024 relating to an increase of pay would be paid in the subsequent pay periods and became properly payable in March 2024. This means that this payment is properly payable and unlawfully withheld. This means that the increase due from October 2023 which was an additional €917.67 per month to March 2024 = 6 x €917.67 =€5,506.02 gross became payable again from March 2024.

The Complainant is also due 5 months gross salary ( 1 month at old rate was paid later) at the higher amount from April 2024 to September 2024 when she received no payment whatsoever and the differential of €917.67 (the 1 month received but not including the salary increase) that arises post the salary increase to a new salary of €56K that was effective from October 2023.

Total owing is €23,333.35 (5 months at higher salary) + €5506.02 (backpay) + €917.67 (increase not included when 1 month paid) = €29,757.04

The Complaint is well founded. I direct that the Employer pay the Complainant €29,757.04 less any statutory deductions.

Salary increase-Undertaking