Complainant

Respondent

Parties

Declan  Sullivan

Munster Technological University

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

                Head of Legal

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-00057281-001

21/06/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation.  Cross examination was facilitated.

The finalisation for this decision was delayed, in part, due to a family bereavement and, in part, due to the impact of Covid 19.

The complainant submitted that he worked remotely, as he has always done during exam periods. Despite this fact, he did not receive any salary in January 2023. His employer has since suggested that he was not paid because he was not working but the complainant contends that this is not true.

The complainant contended that he was working, as normal, remotely during this period. His employer subsequently suggested that he did not attend a meeting, and this is why he has not been paid. The complainant submitted that he had offered to attend remotely via Teams which had been done previously and subsequently without difficulty. His offer was, on that occasion, declined and he was not advised in advance that he would not be paid.

The complainant submitted that this explanation does not explain why he was not paid for the rest of the month. He noted that he has never been subjected to any disciplinary or investigation process in respect of the incident.

Complainant evidence:

The complainant stated that although he was not available, in-person, at the beginning of January 2023, he was available in person from Monday 23 January 2023.  He stated that he availed of the flexibility options to undertake his work during three weeks of January and the last week of December 2022.

The complainant took exception to being considered “Absent Without Leave” as he was working, just not in-person.  He noted that during this time he made himself available on Teams, the digital platform operated by the respondent.  He noted that he was paid the additional amounts for marking exams but not his salary at that time.  He stated that he travelled abroad for just over three weeks and offered to attend the MEB (Module Exam Boards) remotely.  He was then informed that anything short of the mandatory attendance was not acceptable.  The complainant submitted that he completed all work that was required of him and engaged extensively with colleagues during January but was not paid.

The respondent submitted that the complainant was an employee from 01 September 2000 to 02 October 2023 but has since left of his own volition. He held the position of Lecturer – Mechanical/Polymer/Process Engineering.

The respondent submitted that the complainant will have been in receipt of a copy of his contract and aware of its terms since 01 October 2008, when the most recent contract commenced. His duties were set out in the contract, to include: carrying out assessment, monitoring and evaluation of examinations work, and providing an academic and consultative support to students in their learning activities; participating in committees appropriate to courses and meetings convened by management.  The performance of these duties required attendance in addition to class contact hours during the normal working week.

The respondent submitted that during the COVID-19 pandemic, due to public health restrictions and guidelines, it was forced to pivot to remote delivery of lectures and other contracted duties of lecturers were also generally discharged remotely for much of the academic years 2019/20, 2020/21, and 2021/22. With the easing of restrictions, it commenced planning for a return to onsite delivery of lectures and other work.

In October 2022, the respondent notified staff of a blended working policy that would facilitate certain staff to seek approval to continue working remotely, in part.  However, as evident from the email, the pilot scheme was not open to lecturing academic staff, such as the complainant, and it was made clear that: “Staff who do not receive approval will not fall under this policy and will be required to return to the office for their working time. Any current arrangements in place, not falling under the scope of this policy, will cease on 14th October 2022, thus a full return to the workplace by Monday 17 October 2022.”

The respondent submitted that the complainant never sought permission to work remotely, the related policy also made it clear that remote working outside of the Republic of Ireland would not be facilitated.

The respondent submitted that the complainant was absent from work without leave from 16 December 2022 to 27 of January 2023, and as the respondent understands it, he was outside the jurisdiction for most of this time. The complainant was required to be on campus until 23 of December 2022, which was the day the Christmas break commenced. He was informed by his Head of Department that his return-to-work date after the Christmas break was 04 January 2023. Part of the complainant’s contracted duties required him to attend Module Exam Boards (MEB), it is a requirement for all lecturers to be present on campus for these board meetings to meet external examiners and sign off on grade sheets.

During the relevant period of time, the complainant was required, inter alia, to attend a MEB on 12 January 2023. The complainant did not attend this MEB, where an issue arose for one of his students, which had to be dealt with by another member of staff. It should be noted that the complainant never offered to attend this MEB remotely, and even if this had been suggested, it would have been turned it down as all staff and external examiners and were required to be present for the oncampus face-to-face meeting.

The respondent submitted that between 04 January and 16 January 2023, the respondent received no contact or explanation from the complainant in relation to his absence; despite being informed by his Head of Department that the matter was being referred to HR. As a result of the above, the complainant was informed by HR on 16 January 2023 that as he was absent without leave his pay would be paused for the month of January 2023. He had already been paid in full for the month of December 2022.

The complainant was further advised that he would be removed from the respondents’ systems as an employee if he did not engage with his line manager or Human Resources by 31 January 2023. This email is also contained in Appendix 3. The complainant would otherwise have received his pay for the month of January 2023 on or about 31 January 2023, but his wages in arrears were deducted for the relevant period of time, as per the email from HR on 16 January 2023.

The complainant finally reported back to the respondent towards the end of January 2023 to resume work and received his pay accordingly thereafter. During the month of March 2023, there was an email exchange between the complainant, his line manager, and HR in which the matter of his pay and his failure to attend work was addressed.

The Head of Department had to clarify to the complainant that there was in fact an issue in relation to the MEB that he missed, that it was mandatory for him to attend that, and that he had been absent without leave for a prolonged period.

Relevant witness evidence:

The first witness gave evidence that although there was some flexibility for marking exams and for preparation of classes, lecturers were required to be on campus up until 23 December and for face-to-face faculty meetings and meetings with supervisees.  The Module Exam Boards scenario required the attendance of lecturing staff to meet with external examiners, to sign results sheets and to help students who need assistance.

The second witness stated that payroll was run from 16 January and outlined that in the absence of any communication from the complainant it would be run with him absent from that date.  Under cross examination the witness clarified that the complainant was never told that his pay would be deducted but that it would be paused.  He never asked to be paid thereafter.  He only communicated with his line manager towards the end of January.

The complaint revolves around the failure to provide wages for the month of January 2023.  The complainant suggests that he worked for part of January.  He conceded that he was not physically in attendance for a meeting that took place on 12 January 2023.

The respondent indicated that the complainant was not undertaking any work for the month of January, most notably, the meeting on 12 January and therefore did not build up a right to be paid.

The Payment of Wages Act defines wages as follows:

"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:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips or gratuities.

Section 5 of the Act deals with the regulation of certain deductions made and payments received by employers.  It states:

5.—(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.

(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, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

Section 5(2)(a)(iv) states

(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

(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

The complainant submission is that he did not attend the meeting on 12 January, 2023.  He has provided evidence that he was working up to 12 January, albeit remotely and returned to the workplace on 23 January.  Although the respondent may have reason to not pay the complainant for his lack of attendance at a meeting, it did not have reason to cease paying him for the whole month in circumstances where he was able to demonstrate that he was working for part of the month.  On the basis of the foregoing, I find that the complaint is well founded and that the respondent did contravene the Act.

The issue of attendance at the meeting or whether the complainant sought permission to work remotely are to my mind matters that fall into the disciplinary realm rather than a pay related matter (unless such was the decision having regard to the disciplinary processes).  Notwithstanding the foregoing, and in circumstances where the complainant can show that he was working for all, or part of the month of January, I am satisfied that the complainant has demonstrated that he was entitled to be paid for the month of January.  Furthermore, the issue of a deduction from his wages was not agreed to in writing by the complainant, the respondent did not seek his prior consent to deduct his wages.

I am satisfied that the complaint is well founded, and I direct the respondent to pay the complainant compensation equivalent to the net amount of his wages, i.e. €4,500 which I consider to be reasonable in the circumstances.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant is well founded, and I award the complainant compensation equivalent to the net amount of his deducted wages, i.e. €4,500 which I consider to be reasonable in the circumstances.

Payment of Wages – well founded – direction for compensation