ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00016041
Cian O'Dowd Irish Medical Organisation
Friend/Colleague of the Respondent
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
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer: Caroline McEnery
As per section 47(1) of the Workplace Relations Act 2015, the Director General may, where he or she considers that a complaint presented, or dispute referred, to him or her under section 41 of the Workplace Relations Act 2015 may be dealt with by written submissions only, inform the parties to the complaint or dispute, by notification in writing, of his or her intention to deal with the complaint or dispute in that manner. The parties to this dispute were so informed by letter dated 18 October 2018. Neither party objected to the complaint being dealt with by written submissions only within 42 days of 18 October 2018. Both parties indicated that they were agreeable to the complaint being dealt with by way of written submissions only.
Accordingly, I have made my Decision on this complaint based on the written submissions only.
The Complainant alleges that he worked in the employment of the Respondent and has not been paid for six month’s work. The Complainant states he was due to receive the figure of €1,837.00 on the final banking day of each month from January to June 2018. Specifically, the Complainant states he should have received a payment of €1,837.00 on the 31 January 2018, 28 February 2018, 30 March 2018, 30 April 2018, 31 May 2018 and 29 June 2018. This amounts to total unpaid wages of €11,022.00. The respondent contest he was not an employee during this time. She made him redundant in June 2018 so is not entitled to any money due and also owes her money.
Summary of Complainant’s Case:
The Complainant was employed by the Respondent to provide medical services with their practice since 1 January 2011. He works 16 hours a week with the Respondent. He had previously held his own Medical Card list but retired from the same and remained in the practice as an employee following his retirement.
The Complainant was paid €1,837.00 on a monthly basis for his employment in the practice. This payment was made on the final banking day of each month.
The Complainant had discussions with the Respondent in relation to his future towards the end of 2017, but despite subsequent correspondence the Complainant continued to work in the practice from the period January 2018 to June 2018.
The Complainant received no payment in 2018 and the IMO wrote to the Respondent in April 2018 in this respect.
The Complainant subsequently received correspondence from the Respondent in June 2018 stating that he had not been an employee of the practice since January 2018, and making a redundancy payment, without prejudice. This letter also confirmed that his P45 and P60 would be available for collection as of 25 June 2018. This correspondence was the first letter which the Complainant received advising that his employment was terminated.
The Complainant submits that he continued to be employed by the Respondent for the period January to June 2018 and that his employment was only in fact terminated in June 2018.
The Complainant further submits that he continued to provide the same level of work to the Respondent for the period January to June 2018, and that the Respondent was aware that he was providing this level of work within the practice.
The Complainant states notice of termination of employment would need to have been provided in written format, particularly where such notice was purported to be notice of redundancy. In particular he refers to Section 17 of the Redundancy Payments Act.
In addition, the Complainant refers to Section 5 of the Payment of Wages Act, 1991 and only allows for deductions made in accordance with the Act and that any such deductions made outside of this Section are referable under Section 6 of the Act.
Section 5(6)(a) of the Act provides that:
“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 deductions therefrom that fall be made and are in accordance with this Act, or
(b) None of the wages that are properly payment to an employee by an employer on any occasion (after making 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 deficient or non-payment shall be treated as a deduction made by the employer from the wages of the employee on that occasion.
The failure to make any payment falls under this section and is a deduction under the act. There is no lawful justification for the deduction made by the Respondent.
The claim here relates to the period January to June, which totals €11,022. The Respondent made a one-off payment of €2,000 relating to salary, which has been deducted. The value of the claim is therefore €9,022.
The Complainant contests that the failure to make a payment to him constituted an illegal deduction and that an award be made to the Complainant for the deductions made.
Summary of Respondent’s Case:
The Respondent herself was employed by the Complainant from 1991 to 2010. On 1 November 2010 the Complainant’s contract with the HSE was terminated on compulsory retirement grounds. The Respondent stated as she was a full-time employee of the Complainant and she was entitled to full redundancy for the 19 years worked. The Respondent applied for and received the state contribution element of the redundancy but received no entitlements from the Complainant. The Respondent did not receive an employment contract and all affairs were discussed verbally and were not in writing. The Respondent agreed to this arrangement.
When the Respondent opened her own practice she asked the Complainant what his intentions were and he confirmed he would stay “for a short time to ease out of the practice”. The request was facilitated, however, the Complainant requested every month for payment for seeing public patients. The Respondent accepted the situation as it was only short term. The Complainant kept all his private income which he insisted the Respondent forfeit while an employee and with FEMPI cuts of 40% it became unviable for the Complainant to continue employment within the practice and the Respondent’s spouse had to subsidise the practice to pay outstanding bills.
The Respondent and her spouse asked for a meeting with the Complainant to discuss the precarious financial situation as she was working 60 hours a week while the Complainant worked his own hours/holidays usually averaging 12 hour week which the Respondent could not sustain. The Complainant could not attend this meeting and in his absence his son attended to negotiate new terms including mileage payments etc. for attending remote surgery’s/call which the Respondent had specifically asked the Complainant not to attend.
The Respondent clarified to the Complainant that the situation could not continue but the Complainant continued to look for monthly payment while continuing to use the surgery facilities to run his private practice.
The Respondent at this stage alleges she felt bullied into paying the Complainant and on 21 December 2017 called him in for a meeting and informed the Complainant that if he arrived into the building on 1st January 2018 he would be doing so as a private practitioner and rates for use of the building, secretarial services, out of hours cover and all other costs with running a private practice would be discussed.
The Complainant continued to use the facilities to see some of the Respondents patients against her expressed wishes.
The Complainant insisted that the Respondent put in writing that she could no longer support paying the Complainant to see his patients and insisted on a full redundancy payment even though there was no rebate from the State.
All agreements between the Respondent and the Complainant had been verbal over the last 27 years and the Respondent was shocked and disappointed with the Complainant’s demand for written contracts and the instigation of a complaint to the WRC.
The Respondent felt that the Complainant had been taking advantage of her efforts to ease his retirement the last few years and felt bullied into paying for a service the Respondent did not ask for or require.
The Respondent confirmed as of 23 November 2018 there were outstanding arrears due from the Complainant which included rent/secretarial/overnight cover (South Doc)/light/heat/ancillary costs which were estimated to be €11,000.00 to-date which equated to €1,000.00 per month.
The Respondent confirmed that from 1 January 2019 she would no longer by paying for the rooms that the Complainant was currently using for his private practice and that the Complainant was free to negotiate with the Landlord directly if desired.
Findings and Conclusions:
Section 8 of the Payment of Wages Act 1991 states:
8.—(1) A decision of a rights commissioner, or a determination of the Tribunal, made in proceedings under this Act may be enforced as if it were an order of the Circuit Court made in civil proceedings by the judge of the Circuit Court for the place wherein the person in whose favour the decision or determination was made ordinarily resides.
(2) (a) A decision of a rights commissioner, and a determination of the Tribunal, in proceedings under this Act may provide that the decision or determination shall be carried out before a specified date.
(b) Where a decision of a rights commissioner or a determination of the Tribunal does not so provide, it shall be deemed, for the purposes of this section, to provide that it shall be carried out within 6 weeks from the date on which it is communicated to the parties concerned.
The employee’s working arrangements remained the same from January to June 2018. If the employer wanted the employment arrangement to cease a paper trail to that effect is necessary to support the fact that this was done. The first formal notification of this was done in correspondence in June 2018 when the employee was made redundant. I therefore find the employee is due to be paid for the period from January to June. Any outstanding costs mentioned e.g. secretarial fees etc are outside of this hearing as they are not related to the employment contract.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. I therefore find that the employee be paid a total of €9,022 which is the outstanding balance of wages due to him subject to normal taxation.
Dated: 2nd December 2019
Workplace Relations Commission Adjudication Officer: Caroline McEnery