ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002358
Complaint(s)/Dispute(s) for Resolution:
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-00003174-001 | 14/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00003174-002 | 14/03/2016 |
Date of Adjudication Hearing: 30/05/2016
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 6 of the Payment of Wages Act 1991 and Section 13 of the Industrial Relations Act 1969, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The complainant was subject of a disciplinary sanction which he contends was unfair and not in accordance with the company’s own policies. |
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The sanctions issued were (a) four weeks’ unpaid suspension and (b) a final written warning.
The complaint under Section 6 of the Payment of Wages Act 1991 is in respect of the suspension which involved the deduction of 4 weeks wages amounting to the gross sum of €1,855, net being €1608. Arguments and submission summarised as follows:
The complainant made an error when labelling product. The company disciplinary process was invoked. The letter calling him to the disciplinary meeting made mention of warnings or dismissal but made no mention of unpaid suspension. It is argued that unpaid suspension is not contained in the company disciplinary procedures. (The complainant never received a copy of the Employee Handbook). The complainant was issued with a final written warning and unpaid suspension of four weeks’ pay. It is argued that this was a double penalisation, was unfair and too harsh in the circumstances. It is argued that the deductions in this case are in contravention of Section 5 (1) of the Act in that the deductions were not authorised by a term of the employee’s contract and he did not consent in writing. Further it is argued that Section 5 (2) restricts an employer from making deductions by reason of any act or omission of the employee, as they can only be made where authorised by the employee’s contract and must be fair and reasonable. It is also argued that the employer in this case contravened Section 5 (2) (iv) in that he was not notified specifically in writing in advance of the amount or duration of the deduction.
The complaint under Section 13 of the Industrial Relations Act 1969 is in respect of the sanction of final written warning which, it is argued, is excessive. It is further argued that the imposition of two penalties is not covered in the company disciplinary policy. The policy makes mention of verbal warning, written warning, final written warning and dismissal. Nowhere does it mention unpaid suspension. The complainant admitted his error and offered to step down from his Team leader position, but it is argued, this was not taken into account in the appeal.
Respondent’s Submission and Presentation:
The respondent did not attend the hearing. A written submission outlined that the company was satisfied that it followed procedures fairly, that the incorrect labelling of product was gross misconduct and the product recall cost the company €22,000.
Decision:
CA-00003174-001 Complaint under the Payment of Wages Act 1991.
Section 5 (1) of the Act provides;
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( 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. |
Taking into account the evidence of the complainant that there is no provision for unpaid suspension deductions from wages in the complainant’s contract, I find that the deduction made by the respondent was not in accordance with Section 5 (1). Section 5 (2) provides: (2) An employer shall not make a deduction from the wages of an employee in respect of— |
( a ) any act or omission of the employee, or |
( b ) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, |
unless— |
(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and |
(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and |
(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with— |
(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof, |
(II) in any other case, notice in writing of the existence and effect of the term, |
And |
(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, |
I find that the deduction for the act of the employee in this case was not authorised by a term of the contract, was not fair and reasonable and notice in writing of the particulars and amount of the deduction was not given a week in advance.
I uphold the complainant’s complaint and I require the respondent to pay to the complainant the net sum of €1,608.08.
CA-00003174-001 Industrial Relations Act 1969
There is no doubt that the incorrect labelling was a serious error, and demonstrated a poor performance on the complainant’s part, resulting in a significant loss for the company.
I have taken into account the evidence that the complainant admitted his error, that it had been checked by others before it was dispatched, and that the complainant offered to be moved/demoted. I have also noted that the company disciplinary procedures provide for verbal and written warnings for bad workmanship and unacceptable performance. I note the evidence of the complainant that the written warning dated 27th February 2015 referred to in the letter from management of 2nd March 2016 (although it was stated that it was not taken into account) had expired. I find that the penalty imposed was too harsh and I recommend it be reduced to first written warning.
Dated: 9 September 2016