ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00038805
Parties:
| Complainant | Respondent |
Parties | Tony Groarke | Applus Inspection Services Ireland Ltd |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives | Self | Day 1 Paul Twomey BL instructed by David Andrews Kate McMahon & Associates sols. Day 2 No attendance |
Complaint(s):
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-00049790-001 | 21/04/2022 |
Date of Adjudication Hearing: 12/10/2022 28/09/2023
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s)and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The complainant selected the Organisation of Working Time Act from the drop-down menu on the WRC form. In the body of the form details of the complaint did include a complaint for unpaid holiday pay (while the Complainant was out sick) and referred to three other items unpaid at that time:
Sick pay
An increase in pay paid to others
Payment for banked hours.
The hearing was adjourned for four weeks to allow for discussions between the parties, noting that the Complainant was still in the employment of the Respondent at that time.
The Complainant was also asked to provide further details of his complaints as this information this was provided in any detail on the complaint form or in a submission for the hearing. . Correspondence on these points was issued to the parties on 12 October.
Following a discussion on the first day the Complainant did accept in writing that his entitlement to holiday pay for the period in question would arise only when he was in work or whatever might arise on termination. As requested, he provided further details of his complaint as requested. There was further correspondence to the Respondent on 11 January 2023.
By the second day of hearing, the items regarding the banked hours and the pay increase were resolved, as advised in correspondence on behalf of the Complainant on 23 March 2023(I did advise the Complainant on the second day of hearing that I was not advised of this resolution but that statement was incorrect). The issue which remains for decision is that of pay in accordance with the Company sick pay scheme.
Preliminary Issue-the case to be heard and the legislation under which it is to be heard.
On the first day of hearing, I indicated to the hearing that I would consider hearing the issues regarding deductions from wages under the Payment of Wages Act,1991 in accordance with precedents established within the WRC. The Respondent Representative sought the opportunity to make a submission on the matter which was agreed. That submission, objecting to a hearing of the complaints under the Payment of Wages Act 1991 was received on 07.02.23.
Following consideration of that submission, the following text dated February 2023 was issued to the parties as a ruling, which now forms part of the final Decision in this matter.
20 February 2023
Specific Complaint Reference | Complaint Area | Redress Act |
CA-00049790-001 | Hours of Work/Pay | Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997(to be amended to Payment of Wages Act 1991) |
ADJ-00038805 - Ruling on the Complaints to be Heard based on the complaint form CA-00049790
Firstly, may I say that I am disappointed to note that the parties did not or could not resolve these matters offline as I had suggested they might at the hearing on October 12th, 2022. My observation was and remains that at that time at least this was an employment relationship and finding a resolution rather than relying on remedies based on legislation which then may be open to appeal would seem a sensible course of action in the interests of both parties. That disappointment does not in any way reflect on the right of the parties to make such representations as they consider necessary in support of the complaint/defence of that complaint.
I note that the Complainant Mr Groarke has withdrawn the complaint concerning non-payment for holiday pay while on sick leave.
I have decided to reconvene the hearing on the complaints of unlawfully withheld or deducted amounts in respect of paid sick pay, banked hours and wage increases. The purpose of the hearing will be to allow the parties to make their case as to why the amounts specified on the complaint form are/are not properly payable as required under the Payment of Wages Act 1991. In addition, I will also consider the period which can be comprehended by the complaints i.e., under section 41 of the Workplace Relations Act 2015 in respect of time limits and the reckonable period/s as they apply to the specifics of the complaints.
(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
And
(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
In the event that any of the complaints are upheld, then the question of appropriate compensation in all the circumstances would arise.
In deciding to resume the hearing and hear the complaints under the terms of the Payment of Wages Act, I have considered all of the submissions made on behalf of the Respondent very carefully. I am of the opinion that the Respondent was on notice of the issues to be raised from the body of the complaint form of the clear heads of the claims and amounts cited. As the employer the Respondent must know whether they consider the claims stem from contractual entitlements or whether they have good reason for deciding that the amounts claimed are not properly payable or to argue such circumstances they deem fit as a basis for withholding any payments which would otherwise be properly payable. Following my request for a statement from Mr Groarke they are now on full notice of the dates and basis of the differing amounts and dates specified. I cannot see any prejudice to the Respondents ability to defend their situation arising from my decision to proceed to hear the remaining complaints. Indeed, it will be noted that it was my ruling on the matter of holiday pay which led to the withdrawal of that element of the complaint. This point is made to demonstrate that I have adopted an even handed approach to consideration of the complaints submitted concerned only to ensure that fair procedures and justice are serviced.
It is not correct of the Respondent representative to say that I gave an opinion that the terms of County Louth VEC applied in this case. I gave no opinion but allowed the Respondent to make a case on such a view given that is has been applied by adjudication officers in other cases. I also accept that it may be possible to come to a different view based on some of the judgements referenced by the Respondent. However, on balance I find that justice will be better served by allowing the Respondent to reply to the particulars of the claims for sick pay and unpaid wages as claimed, and in considering any other points made by or on behalf of the Complainant. Whatever about the application of time limit issues raised on behalf of the Respondent which will be considered, I believe that the effect of ruling out in their entirety the claims other than holiday pay based on not selecting the correct box on the non-statutory form would be a fatal and excessive penalty on the Complainant in the circumstances of this case. If Mr Groarke had simply written in on a plain piece of paper and on it had set out the different elements of his complaint, he would not find himself hemmed in by the fact that he completed a form and had specified legislation which related only to one part of his complaint-holiday pay. Indeed, the same claim for holiday pay could have been submitted under the Payment of Wages Act 1991. As it is, the Respondent is now on a fuller notice of the details of the complaint and also the legislation under which it will be heard.
My conclusions in this matter are, I believe, consistent with Par 24 of the Judgement of Charleton, J [2007] IEHC 210.
This ruling will be included in the text of the Decision under the Payment of Wages Act,1991.
On a separate matter I wish to address certain points made by Mr Groarke regarding the hearing in October 2022 in his detailed statement provided following the adjourned hearing. It is not necessary to have legal representation before a hearing of the WRC. Adjudication Officers deal with very many complex matters where there is no legal or other professional representation. Mrs Groarke is a support person. For that reason, she was not permitted to be involved in the proceedings. If Mrs Groarke wishes to be called as a witness to provide evidence on calculations, then she must be sworn in under oath or affirmation. These are claims under legislation and any Adjudication Officer must have regard to that legislation before arriving at any decisions. It should be noted that I do not recall Mr Groarke being asked to make any legal submission at or following the hearing and also that he himself had access to legal advice before and after that day.
I will arrange for an in person hearing in Castlebar at the earliest opportunity which will be when the Courthouse is available to the WRC.
Please note that I will require:
- A copy of Mr Groarkes terms of employment.
- The terms of the sick pay scheme which applies to Mr Groarke.
- Any documentation containing details of the terms of the wage increases being claimed by Mr Groarke which have not been proved previously on the file.
- Details of the banked hours agreement and any calculations related to the 44 hours claimed including the relevant period.
- Any documentation exchanged between the parties on the matters to be heard.
- Details of any medical certificates supplied by Mr Groarke related to the payments claimed and when these were submitted to the Respondent.
Please note that any calculations must be in expressed in nett as well as gross terms-as any compensation awarded under the Payment of Wages Act,1991 must be expressed in nett terms.
Finally, and of particular importance, both parties should note that I have arrived at no conclusions in respect of the substance of the complaints. Decisions will be taken only after a full hearing of the parties.
Thanking you all in anticipation for your co-operation in this matter. The hearing date will be advised in due course.’
A second preliminary issue was raised in the Complainants submission to the first day of hearing, that of time limits under Section 41 of the Workplace Relations Act. In his statement of case, the Complainant replied to this issue, detailing his personal health circumstances for some of the period in question. That response could have discussed at the resumed hearing. However, there was no attendance by or on behalf of the Respondent. Given that the Respondents offer of payment contains no reference to dates, simply providing a calculation of the Complainants entitlements based on total days, I have concluded they are no longer disputing the complaint or any part of the complaint based on the time limit issue and have discounted the issue accordingly.
An in-person hearing was convened for September 28th, 2023 (an earlier scheduled date was postponed). In advance of the hearing, the Respondent, in an effort to resolve the outstanding issue of sick pay, made a submission to the WRC on their calculation of what was owed to the complainant under the claim for sick pay in gross and taxable terms on which they proposed by way of a settlement. That this offer was made was explained in part due to the cost and inconvenience of attending in Castlebar. The offer was rejected by the Complainant who wanted the in-person hearing to proceed. When it did not prove possible to provide a remote hearing, or a hybrid hearing from Castlebar, the in-person hearing proceeded as scheduled. The Respondent did seek a postponement which was refused by the WRC. The hearing proceeded to a conclusion with the Complainant present and no attendance by or on behalf of the Respondent.
Background:
The issue to be decided is a complaint concerned with payment of sick pay which the Complainant maintains were due to him while on certified sick pay.
|
Summary of Complainant’s Case:
In his calculations, the Complainant estimated the value of his claim at €12750 gross. In response to the letter of 08.08.2023 to the WRC, the Complainant accepted the gross figure of €13545.72 as accurate. His reason for rejecting the amount offered is that the Respondent proposed to make a deduction for social welfare disability payments amounting to €8245. That deduction was rejected on two grounds. Firstly, the sick pay scheme as set out on page 5 of the statement of terms of employment does not refer to any deduction for social welfare payments. Secondly, the amount which they proposed to deduct assumed that the Complainant had claimed for a married person-i.e. two people which was not the case. Repayments of social welfare payments are a matter for the Complainant-and will be addressed by him. When I put it to the Complainant that the deduction of social welfare or the submission of social welfare payments to an employer would be usual, I was referred to page five of the staff which was submitted as the only documented terms received related to the sick pay scheme and which makes no mention of social welfare. |
Summary of Respondent’s Case:
The Respondent submitted the following calculations in their letter of August 8th 2023 Full Pay €9030.48 Half Pay €4515.24 Total €13545.72 Illness Benefit Ireland personal rate €220 per week extra for dependent adult €146 total per week €366 x 24 = €8764 Balance €13545.72 subtract €8764 = €4761 gross There was no final nett figure provided |
Findings and Conclusions:
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 5 as respects a deduction made by an employer from the wages 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 thecircumstances not exceeding— (a) the net amount of the wages (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, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount. Over the course of almost twelve months, it has been difficult to comprehend why the payment of sick pay as per a sick pay scheme has proved so problematic as to require the WRC to be involved and legal representatives engaged by both parties to a greater or lesser extent on both sides. And why the employer considers the final calculation to be accurate was not explained by them in the correspondence of 8 August 2023. The only contractual document which was provided at any stage is that extract from page five of the employee handbook provided by the Complainant at an early stage in these proceedings. That document makes no mention of the arrangements for social welfare repayments or deductions which would normally apply to an employment sick pay scheme. I note the page refers to some information to follow but the headline appears to refer to a particular group of employees. Whereas such deductions may be regarded as normal, a deduction for a dependent person would not be usual either. Based on the available evidence I have no information or evidence which would justify a finding that the Respondent is authorised by way of a contract to deduct social welfare payments from the amount of sick pay payable to the Complainant under the sick pay scheme in the employment, or indeed at what quantum. As a consequence, I find that any deduction of such payments would be a further unlawful deduction or payment withheld from the employee. The first unlawful deduction being the withholding of sick pay in the first instance, the reason for which was not provided by the Respondent at any stage.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00049790-001 This Decision is issued under the Payment of Wages Act 1991 for the reasons set out in the Procedures Section above. Payment of Wages Act 1991-Section 6 I find the complaint of non-payment of sick pay brought by the Complainant Tony Groarke against the Respondent Applus Inspection Services Ireland Ltd is well founded. The Respondent is to pay the Complainant €13545 gross in compensation subject to any deductions for income tax and PRSI applicable to him on the relevant dates. |
Dated: 13th October 2023
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Non-payment of sick pay-ruling on the legislation under which the complaint is to be heard. |