Complainant

Respondent

Parties

Mrs Margaret  Collier

Rehab Group Learning NLN

Representatives

Self-Represented

Mr Daire Ferguson IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00065670-001

29/08/2024

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

CA-00065670-002

29/08/2024

These matters came before the WRC dated 29/08/2024 as complaints submitted under section 7 of the Terms of Employment (Information) Act, 1994 and under section 6 of the Payment of Wages Act, 1991.  The Complainant alleges a contravention by the Respondent of provisions of the above listed statutes in relation to her employment with the Respondent.  The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 09/05/2025. 

The Complainant commenced employment with the Respondent on 03/06/2013 and she retired on 25/10/2024.  The Complainant at all material times was employed as a Credit Controller.  The Complainant worked 35 hours per week for which she was paid €790.37 gross per week.

The Respondent is a progressive leader in the delivery of personalised education, training and development opportunities for people with disabilities or requiring additional supports throughout Irish communities operating from across 50 locations. 

CA-00065670-001 complaint pursuant to section 7 of the Terms of Employment (Information Act), 1994

Overview from WRC complaint form

The Complainant submits she is due to receive a pay increase backdated to April 2023 for Section 39 employees.  The Complainant submits the company decided she was not entitled to the back-pay because they made changes to her contract without notifying her and without consulting her on the changes they made.  The Complainant submits the changes came into effect when the company decided that they did not want to give her the back-pay that she was legally owed for no clear reason.  The Complainant submits this complaint is about the fact that changes were made to her contract without notification and without her agreeing to the changes made. 

The Complainant submits the company introduced a new set of ‘pay bands’ which different employees were placed into.  The Complainant submits that according to the company these pay bands were signed off and agreed to by the WRC.  The Complainant submits there is no clear reason why these pay bands were introduced but she was never notified or consulted on these changes and as such she has been disadvantaged.  The Complainant submits HR sent her a snippet of this Pay Band and she has asked her manager to send her a full breakdown of the Pay Band they have put her in four times now and they have failed to give it to her.

CA-00065670-002 complaint pursuant to section 6 of the Payment of Wages Act, 1991

Overview from WRC complaint form

The Complainant has claimed an unlawful deduction in the amount of €7,285.34 alleged to have occurred on 22/08/2024. 

The Complainant submits the company she works for was due to increase pay and backdate to April 2023 for Section 39 employees and that she was one of the employees due to receive this back-pay.  The Complainant submits the company refused to give her the back-pay that they owe her.  The Complainant submits this comes down to changes they made to her contract which she has outlined in another complaint.  The Complainant submits another amount of money is owed to her due to the company refusing to engage with her on returning to work after sick leave (the details of which are in another complaint).  The Complainant submits she attempted to return to work multiple times but the company refused to discuss the issue with her and delayed OHA meetings.  The Complainant submits she seeks compensation for the money and benefits (such as lost wages, pension contributions, and PRSI stamps) that she did not receive due to the company refusing to engage with her and thus delaying by several months her return to work. 

Summary of direct evidence of Complainant on oath (both complaints)

The Complainant submits she was put on a pay band that she knew nothing about.  The Complainant submits she negotiated her terms when she took up her position as a credit controller.  The Complainant submits she wasn’t on any band or scale and that the 39K she was on reflected the pay cuts that the section 39 employees had been subject to and that the 39K took into account those cuts.  The Complainant submits her contractual remuneration was 39K. 

The Complainant submits she received increases on 5 September 2019, 5 November 2020, 7 October 2021 and 24 March 2022 respectively.   

The Complainant reiterates she was never on any scale or any band or any grade.

The Complainant submits her salary was an individualised salary at a rate personal to her.    

The Complainant submits that she was not provided with notification one month in advance of changes to her contract.  The Complainant submits the letter was dated 15 August and she received it on 21 August and the changes had taken place on 23 August.

The Complainant submits they grade put on was too low and outlines all the extra work she undertook arising from Covid and the cyber-attack. 

The Complainant submits she was trying to get back to work from sick leave but nobody would engage with her. 

The Complainant submits her medmark appointment overlapped with another appointment she had and that when she contacted them to cancel it they said it was in Cork.  The Complainant submits they never notified her about the new appointment. 

The Complainant submits her GP wouldn’t allow her back to work until the workplace issues were sorted to which she referred to as ‘the elephant in the room’.

Closing submission of Complainant

The Complainant submits by way of closing that she feels grossly let down by the organisation and they slapped her in the face on the way out. 

CA-00065670-001 complaint pursuant to section 7 of the Terms of Employment (Information Act), 1994

Overview of written submission

The Respondent submits that on the 15th of August 2024 the Complainant was informed that an agreement was reached under the auspices of the WRC for pay increases to employees who fell within the agreed pay bands, the agreement had no provision for increases for employees who fell outside of the bands.  The Complainant’s line manager confirmed to the Complainant that they fell outside of the eligibility criteria for the increases.  The pay band the Complainant’s grade fell under was Grade 6 which under the agreement ranged from €28,200 to €37,800.  The Respondent submits the Complainant retired on the 27th of October 2024.

The Complainant alleges that the Respondent has made a contravention of section 3, 4, 5, or 6 of the Terms of Employment (Information) Act, 1994.   

It is the Respondent’s position that they are not in breach of section 3, the Complainant signed their permanent contract of employment on the 29th of January 2014, they commenced in the role on the 2nd of January 2014 this was well within the 2 months afforded under section 3 of the act.

The Complainant was not required to work outside of the state, the provisions of section 4 of the act do not apply.

The Respondent argues that no substantive change to the Complainant’s terms and conditions of employment has occurred since they commenced employment with the respondent in 2014 within the meaning of section 5, as stated within the Complainant’s contract of employment they were appointed at a fixed salary to the value of €39,000.00 per annum, in the interim the Complainant has benefited from other pay increases which has brought their salary to the amount of €41,098.99 and as such was not entitled to incremental credit as they already exceeded the maximum point of the Grade 6 salary scale.

It is the Respondent’s position that the Complainant fell outside of the scope of the October 2023 agreement by merit of the fact that their salary already exceeded the maximum point permissible for their scale. 

The Respondent produced on request to the Complainant the details of the pay scale for their associated grade, the Respondent argues that the Complainant had no right to visibility of the pay scale associated with other grades as they had requested.  The next senior grade, grade 7 is an Income Accountant.

It is further argued that that the Complainant’s perceived entitlement to accessing the information relating to the pay scales in of other grades falls outside of the scope of the Terms of Employment (Information) Act, 1994.

CA-00065670-002 complaint pursuant to section 6 of the Payment of Wages Act, 1991

Overview of written submission

The Respondent submits the Complainant alleges that they have not been paid correctly in relation to the Section 39 Pay agreement of October 2023 and alleged loss of earnings whilst the Complainant was absent on sick leave.  The Complainant states that they have allegedly not been paid the sum of €7,285.34 which they have alleged was due to them on the 22nd of August 2024.

The Respondent refutes these allegations in totality, and it is the Respondent’s position that no unlawful deduction has occurred to the Complainant.

The Complainant as mentioned is employed with a salary of €41,098.99 per annum, as can be seen in payslips the Complainant has not been subjected to any unlawful deductions whilst on sick leave or on the 22nd of August 2024.

The Respondent submits the Complainant fell outside of the scope of the October 2023 pay agreement and was informed that they were not eligible for the pay increases included in the agreement.

Summary of direct evidence of Respondent witness Ms Amanda Brennan (hereafter AB) on affirmation

AB refers to correspondence to the Complainant of 15 August 2024 providing notification in writing to her that she had been aligned to a grade and to a pay band.  The witness outlines the background to the section 39 pay agreement referred to. 

The witness submits the Complainant received her paid sick leave as set out and provided for in the sick leave policy.  The witness submits the Complainant was maintained unfit to return to work by her own GP and submits how can an employer facilitate a return to work when the GP keeps certifying the Complainant unfit to return. 

Summary of direct evidence of Respondent witness Ms Sinead O’Reilly (hereafter SO’R) on affirmation

The witness outlines the grading process and submits that when trying to manage pay and reward the roles were graded based on the job you do.  The witness outlines benchmarking was undertaken with the HSE and the bands are lower.   The witness submits they used external consultants and the HAY system job evaluation methodology was used.  The witness submits the ranges were based on market rates and ability to pay.  The witness submits there are numerous stakeholders involved in the process and it could be another year before matters are fully resolved.

Having regard to sick pay SO’R clarifies the Complainant was not entitled to sick pay from 29/01 to 21/04 as she had by that time exhausted her entitlement in line with the policy.  The witness submits with reference to the allegations of management’s inaction that the challenge for them was was they continued to receive sick certs from the Complainant’s own GP that continued to certify the Complainant as unfit to return to work.      

The witness submits she was involved in the grievance the Complainant had raised in respect of managements inaction in getting the Complainant back to work and submits there had been a significant level of engagement with the Complainant and makes reference to the chronological timeline detailing events as the occurred and the various interactions between the parties from 23/09/2023 up until 16/08/2024. 

The witness submits that income protection comes from an external provider and applications are forwarded to them and they process the claims.  The witness submits that the Complainant was afforded the opportunity to appeal the outcome of her grievance in relation to sick pay and she did not avail of the appeal mechanism.  The witness submits the outcome of the Complainant’s grievance was that it was not upheld that the Complainant is not entitled to any compensation for loss of pay due to the alleged inaction of and failure to communicate by HR and management in relation to her return to work.  The witness confirms the sick policy provides for 26 weeks certified sick leave in a rolling three-year period.    

SO’R submits the collective agreement regarding pay did not apply to the Complainant as her salary exceeded the maximum and this was explained to her in correspondence of 15 August that she was not covered by the terms of the collective agreement. 

Closing submission of Respondent

It is submitted the Complainant was notified of the alleged changes and this was not a change to her detriment.  The Complainant was paid sick pay in line with the policy and there was no wrongful deduction from salary. 

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

CA-00065670-001 complaint pursuant to section 7 of the Terms of Employment (Information Act), 1994

The Relevant Law

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

I note that it is sufficient to provide written confirmation of changes and the employer is not required to issue a new contract every time a change occurs. 

The Relevant Facts

I note the Complainant was issued with a contract of employment when she commenced with the Respondent and signed by the parties in January 2014.  I note the contract sets out the hours of work and the rate of remuneration as €39,000.00 per annum.  I note the contract at clause 21 provides as follows:

Collective Agreement

“Rehab Group and the Company operate a Company / Union Agreement with SIPTU (Service Industrial Professional Technical Union).”  

I note the contact at clause 22 provides as follows:

Changes in Terms and Conditions of Employment

“Any changes in the terms and conditions of your employment with the Company occurring after the date of this document will be notified in writing in written form within one month of the change.  Any such variation will henceforth form part of this contract.” 

It is not in dispute that in October 2023 an agreement was reached at the WRC which related to pay increases for Section 39 employees backdated to April 2023.  It is not in dispute that the Complainant was advised by correspondence on 15 August 2024 that as she was above her pay band there would be no increase applied. 

I note the Complainant’s submits she was she was never on any scale or any band or any grade.  I note the Complainant submits her salary was an individualised salary at a rate personal to her. 

However, I accept that the application of the WRC increases involved a review of the salary and grading for each post holder including the Complainant.  I note the Complainant was notified by correspondence of 15 August 2024 that she was now aligned to a grade and that each grade had a unique pay band. 

I note the Complainant was provided the details of the salary band for her grade upon request on 21 August 2024 which is the date the Complainant submits she received the correspondence dated 15 August 2024.  I note the Complainant submits the changes took place on 23 August.  It is settled law that section 5 of the Terms of Employment (Information) Act, 1994 (as amended) requires an employer to provide written notice to an employee of any change to the terms and conditions of an employee’s contract within one month of the change taking effect.   

In the instant case I am satisfied the Respondent notified the Complainant in advance of the change as alleged by the Complainant as having taken place on 23 August 2024.  I fully accept the Complainant is not happy with her grade and she does not believe she has been graded according to her duties and responsibilities as she submitted at hearing.  However, her dissatisfaction with her grade is outside of the remit of my investigation into this complaint and as discussed at hearing this would have been a matter for a request by her of a job evaluation.    

When I apply the law to the facts as set out in the written submissions and orally at hearing I am unable to find a contravention of the impleaded legislation as set out above namely section 5 of the Terms of Employment (Information) Act, 1994 which provides for the notification of changes. 

I am satisfied there was no contravention by the Respondent of the provisions of the legislation as set out above.  Accordingly, I find this complaint as presented under the Terms of Employment (Information) Act, 1994 to be not well-founded.   

CA-00065670-002 complaint pursuant to section 6 of the Payment of Wages Act, 1991 (the “1991 Act”)

The Relevant Law

Section 1 of the Payment of Wages Act, 1991 provides the following definition of wages:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Section 5 of the 1991 Act prohibits the making of deductions from wages save in certain circumstances.  Section 5(6) of the 1991 Act provides that where on any occasion an employee is paid less than the total amount of wages that is properly payable to the employee on that occasion, the amount of the deficiency or non-payment is to be treated as a deduction. 

Section 5 of the 1991 Act sets out:

5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(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.

The matter for me to decide is whether the Respondent has properly paid the Complainant in accordance with section 5 of the 1991 Act. 

In the case of Marek Balans v. Tesco Ireland Limited [2020] IEHC 55 the High Court made it clear that the WRC, when considering a complaint under the 1991 Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made.  If it is established that a deduction within the meaning of the Act had been made, the WRC would then consider whether that deduction was lawful.  The 1991 Act does not define the concept of “properly payable” and I must reach a conclusion on this by reference to objective criteria and with due deference to previous findings of the Labour Court or other authorities. 

The Relevant Facts

The Complainant alleges an unlawful deduction in the sum of €7,285.34 comprising back-pay the Complainant submits she is owed and compensation she is seeking because it is alleged the company delayed her return to work from sick leave.

Back-pay “properly payable”

I note the Complainant did not receive back-pay arising from the 2023 agreement brokered by the WRC in October 2023 which contained pay increases for Section 39 employees backdated to April 2023 and this fact is not in dispute.  I note the Respondent submits that at the time of the application of the WRC increases the salary and grading for each post holder was reviewed and it was determined how to apply the WRC increases to their roles.  I note the Respondent submits the minimum, mid and maximum salary levels for each grade was increased by 8.21% and then they compared their current salaries to the revised salary levels. 

I note the Respondent submits there were a number of post holders identified whose salary was already above the maximum for their grade after the 8.21% increase to the grade maximum and accordingly in those situations there was no increase applied as the role holder would have already exceeded the maximum for their grade. 

It is not in dispute that the Complainant had already exceeded the maximum for her grade.  I note the new top for the Complainant’s pay band on an FTE basis is €40,903.38 and the Complainant’s salary was, at the relevant time, €41,098.99.   I fully accept the Complainant, having been aligned to a grade, was dissatisfied with the grade to which she was aligned. 

Notwithstanding, I am unable to find the sum (€7,285.34) or part thereof to be an amount that is properly payable to the Complainant pursuant to the Payment of Wages Act, 1991 when I carefully consider the facts as set out above.  

Compensation for money lost due to management’s refusal to engage on return to work.

The complaint is of unlawful deductions from wages contrary to the Payment of Wages Act 1991 alleged to have occurred on 22/08/2024.  The wages the subject matter of the complaint concerned sick pay.

The Respondent refutes this complaint; it paid sick pay in accordance with the applicable sick pay policy and the Complainant’s terms and conditions of employment. 

Statutory Time Limits

There are time limits applicable to the presentation of complaints under the Payment of Wages Act 1991 (the “1991 Act”). 

The relevant provisions are in section 41 of the Workplace Relations Act 2015 (the “2015 Act”) as follows:

“(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.

(7) …

(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.”

This complaint was presented for adjudication under section 41 of the 2015 Act on 29 August 2024.  I note the Complainant alleges the date of contravention as 22 August 2024. 

In accordance with section 41(6) of the 2015 Act, as set out above, the period that may be investigated is 30 February 2024 to 29 August 2024 unless an extension of time is granted.  I note there was no application made for an extension of time.    

Therefore, the cognisable period for consideration of this complaint is from 30 February 2024 to 29 August 2024.  The Complainant alleges the actual dates of unpaid sick leave to be from 29 January 2024 to 23 March 2024 albeit claiming date of contravention 22 August 2024.     

I do not have jurisdiction in any event to entertain a complaint of deductions from pay that are alleged to have occurred before 30 February 2024. 

In relation to sick pay during the cognisable period, the facts were not in dispute.  The Complainant was on unpaid sick leave from 29 January until such time as income protection kicked in on 23 March 2024.  I am satisfied the dates for consideration by me are 30 January to 22 March a period of 7 weeks.   

The Relevant Law

Section 5(1)(a) set out above provides that sick pay is regarded as wages as defined in the 1991 Act. 

It is not in dispute the Complainant had exhausted her entitlement to paid sick leave by 29/01/2024.  It is not in dispute the Complainant did not return to work until 21/04/2024.  This is a claim pursuant to the Payment of Wages Act, 1991 and in determining this element of the complaint I am confined to considering that which is “properly payable” to a complainant. 

By virtue of the undisputed fact that the Complainant had exhausted her entitlement to paid sick leave and according to the terms of the sick policy the Complainant was no longer entitled to paid sick leave.  Again, by operation of the sick pay policy, the Complainant availed of income protection and I note the Complainant was in receipt of income protection from 23 March 2024 until 21 April 2024. 

I am satisfied there was a period of 7 weeks during which the Complainant did not receive payment i.e., from 30 January to 22 March.  I note the Complainant attributes this to management’s inaction in facilitating her return to work. 

I have given careful consideration to the chronology of events set out in evidence.   I am satisfied that following a conversation with her line manager in December the Complainant advised that she would like to return to work by which time she had been on paid sick leave since 23 September 2023 following an incident in the workplace. 

During this time the Complainant provided medical certificates from her GP.  I note that following the conversation with her line manager an Occupational Health Assessment (hereafter OHA) was requested by the Respondent on 19 December 2023 and an appointment was scheduled for 23 January 2024. 

I note the Complainant requested that the 23 January appointment be rescheduled as she had another appointment that day and it was rescheduled at the Complainant’s request to 29 January 2024.  I note the recommendation from that appointment was that the Complainant was unfit to return to work at this time and a further review would take place in 3-4 weeks. 

I note the second OHA was undertaken on 1 March 2024 and recommended that the Complainant was fit to return to work with a support plan in place on 1 April 2024. 

To this end a meeting took place with the Complainant during the week on 19 March to discuss her return which was deemed by the Respondent to be a positive meeting. 

Notwithstanding, the Complainant submitted a medical certificate from her GP covering the period 2 April to 22 April certifying her as unfit to return.  I note the Complainant returned to work on 23 April 2024. 

I note the Complainant submits the Respondent wouldn’t engage with her to facilitate her return to work from sick leave.  However, this claim is not borne out by the facts when I note that as soon as the Complainant indicated she wanted to return the Respondent organised the OHA referral and I have to accept the lead in time which might be considered excessive would have been impacted by the Christmas / New year factor.  I note the initial appointment was delayed by a week at the request of the Complainant.     

As part of my consideration of this matter I have reviewed and I note the Respondent Group Absence Management Policy defines long term absence as a period of 4 weeks or more on a continuous basis. 

I note the policy provides as follows at 5.4

Long Term Sick Leave Absence

“Regular contact will be maintained between the Manager and the employee during extended periods of sick leave. Weekly medical certificates should be sent by the employee to their Manager. On occasions, monthly medical certificates may be submitted with the agreement of the Manager in consultation with the HRBP. Employees on long term sick leave will be required to attend an Occupational Health Assessment with the Occupational Health Physician (Company Doctor).” [emphasis added]

Having regard to the above extract from the Group Policy I note and it is not in dispute that the Complainant commenced the period of sick leave to which this complaint refers on 23 September 2023.  I note and it is not in dispute that the first referral for an OHA was on 19 December 2023 and such referral was triggered by the Respondent after the Complainant had indicated that she would like to return to work.          

I am of the view the Respondent might be well advised to take particular note of the guideline set out under 5.4 of the policy that provides “regular contact will be maintained between the Manager and the employee during extended periods of sick leave” as there was no evidence presented to me that indicated this had occurred.  I note in this case it is apparent the Respondent waited for an indication from the Complainant that she wanted to return to work whereas it is considered best practice that in many workplaces that the employer will instigate a referral for an OHA as soon as an employee has been on long term sick leave for a period of 4 weeks.  I accept this does not indicate an employee will be expedited back to work but the process for a return, be it a phased return or otherwise, will have commenced.  

I am satisfied the Complainant has at all times been paid sick pay to which she was entitled for any period of sick leave absence in line with the Respondent’s sick leave policy and this payment ceased when she had exhausted that to which she was entitled. 

Having considered the totality of the evidence as adduced, I am unable to find there was an unlawful deduction pursuant to the 1991 Act as defined therein.  I am satisfied the Complainant ceased to be eligible for payment under the Respondent sick pay scheme when she had exhausted that entitlement on 29 January 2024 in line with the provisions of the scheme.      

I am unable to find the sum or part thereof (€7,285.34) to be an amount that is properly payable to the Complainant. 

CA-00065670-001 complaint pursuant to section 7 of the Terms of Employment (Information Act), 1994

For the reasons set out above I decide this complaint is not well-founded. 

CA-00065670-002 complaint pursuant to section 6 of the Payment of Wages Act, 1991

For the reasons set out above I decide this complaint is not well-founded. 

Notification of changes; properly payable;