Complainant

Respondent

Parties

Nidaa  Ali

Mater Private Network, Dublin

Representatives

Adrian Norton IBEC

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-00061156-001

23/01/2024

The complainant submitted her claim under the Payment of Wages Act on 23rd of January 2024.

The Complainant submits on her WRC complaint form that the respondent made a deduction from her wages in July 2023 to the amount of €1,400 without her consent.    The respondent refutes this claim and submits that they complied in full with the Act and that no unlawful deductions have been made.

The first hearing of this matter took place on 15th of April 2024.  Due to time constraints on the first day of hearing a further hearing was scheduled and took place on 11th of November 2024.

The cognisable 6 months period of this claim dates from 24th of July 2023 to 23rd of January 2024.

The Complainant submits that the respondent made an unlawful deduction in the wages that were paid to her in July 2023.

The complainant submits that she is paid one month in arrears and so the month which was paid in July was for June 2023. 

The complainant submits that in June 2023 she worked 165.57 hours (basic hours for June 169), owed hours 3.43 Hours paid by salaries for June 2023 were 126.57 (130 - 3.43), owing hours 39 .  

The complainant submits that 39 hours are unpaid  from June 2023.

The complainant submits that the respondent pays one month (basic hours + overtime) in arrears and that wages for October 2022 were paid in Nov 2022.

The complainant submits that she works 12- hours shifts 08:00-20:00 at the radiology department to attend cardiac MRI scans, from July 2022-July 2023,

She submits that her contract was permanent full-time of 169 hours monthly (14-15 shifts) at that time.

The complainant submits that from July 2023 she moved to a permanent part time contract of 130 hours monthly from July 2023-present.

The respondent submits that the Complainant has been employed by the Respondent for approximately four and a half years. She started work at the hospital in the role of Resident Medical Officer on 14th October 2019 on a fixed term contract . She took up a permanent post in this role on 14th October 2021.  

On 11th July 2022, the Complainant moved to the day hospital and signed a new contract of employment , working 39 hours per week, or 169 hours per month.   On 1st July 2023, the Complainant reduced her hours of work to 130 hours per month, at which time she signed a contract addendum.  The nature of her work, combined with her availability for work means that it is not always possible for her to work the contracted number of hours each month.

 As commonplace in most businesses, salaries must be processed and paid well before month end. Every month Ms. Nolan (Ms. N), Medical Workforce Manager reconciles the hours actually worked by the Complainant, against her contracted hours, and emails any adjustments to the salaries department.

 Any adjustments, be they increases or decreases are subsequently adjusted in the Complainants salary the following month.  In October 2022, on foot of a request by the Complainant, Ms. N made a special request to the salary department, asking to change the way the Complainant was paid and asked if the Complainant could be paid the actual hours worked in any given month.  As the salaries must be processed before the end of each calendar month. Salaries responded stating that this request could not be accommodated.

From 1st July 2023, the Complainant reduced her working hours to 130 per month. Her employment contract was amended accordingly.    Her June pay therefore was the last month where she should be paid the contracted 169 hours, with any adjustments to the actual hours worked in June, to be made in her July wages.   The Complainant worked only 165.57 hours during June , so there was a shortfall of 3.43 hours to be deducted from her July 2023 salary.

The Complainant worked her reduced contracted hours of 130 hours during July. Her pay in July therefore consisted of pay for the 130 hours worked, less the 3.43 hours that were to be deducted, based on the shortfall of hours from June.   Her payslip for July 2023  outlines this: Basic Pay -3.34 hours @ -€123.77 (€36.08 per hour) Salary €4691.15 @ 130 hours (€36.08 per hour)

The Respondent refutes this claim in its entirety, as no unlawful deduction of wages has occurred in line with the renumeration stated in the Complainant’s contract of employment.

The Complainant has argued that she is paid monthly in arrears. This is simply not the case as illustrated above.

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, ad 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.

Section 5 (6) of the Act provides:

(6) Where—

( a ) the total amount of any wages that are paid on any occasion by anemployer 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 any deductions therefrom that fall to be made and are in accordance with this Act), or

( b ) none of the wages that are properly payable to an employee by an employer on any occasion (after making any 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 deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

In this instant case, the Complainant in her claim form submitted that the respondent had made an unlawful deduction from her wages on 28th of July 2023 in the amount of €1,400.  The complainant at the hearing outlined that she had initially been on a contract to work 169 hours per month but had struggled to work the 169 hours and so she had requested a move to reduced hours of 130 hours from July 2023.    This was granted and so the complainant moved to a part time contract of 130 hours from July 2023.

The complainant in setting out her claim advised the hearing that she now works 130 hours per month and gets paid 1 month in arrears but submits that in July 2023 she was not paid for the number of hours worked.

The respondent advised the hearing that it does not pay 1 month in arrears but that it pays the full basic contracted hours every month and where the full number of contracted hours are not worked in any month then the unworked hours are deducted from the following months wages.   Therefore, while on the 169 hour contract the complainant was paid for 169 hours each month and where she failed to complete the 169 hours in any given month the hours were deducted from the following months pay.   

The complainant at  the hearing agreed that this was the position initially but stated that she later requested that she be paid for the actual hours she worked each month instead of being paid the contracted hours less the deduction for hours not worked in the previous month.   The complainant stated that she requested this change be made to the way she was paid back in October 2022 and that following this request it was agreed that she would be paid for actual hours worked each month.

The respondent at the hearing disputed this and stated that the while the request was made to the salaries department  on behalf of the complainant the reply from the salaries Department was that this could not be facilitated due to the fact that  salaries must be processed before the end of each calendar month.

In their email response to the Complainant,  they said: “There are no exceptions for the way basic hours are processed to employees. 169 full time basic hours will be processed and paid in the current month, while overtime & unpaid leave is exported from Softworks one month in arrears, i.e paid/deducted the following month”.  The respondent advised the hearing that Ms. N emailed the Complainant to enquire if she was happy with this arrangement, to which the Complainant replied: “Yes, I’m happy” (email submitted).

 From 1st July 2023, the Complainant reduced her working hours to 130 per month. Her employment contract was amended accordingly.   She therefore ceased to be contracted to work 169 hours per month at the end of June 2023.  Her June pay therefore was the last month where she should be paid the contracted 169 hours, with any adjustments to the actual hours worked in June, to be made in her July wages.

The respondent advised the hearing that the Complainant worked only 165.57 hours during June 2023 , so there was a shortfall of 3.43 hours to be deducted from her July salary.

The respondent went on to state that the Complainant worked her reduced contracted hours of 130 hours during July 2023.  Her pay in July therefore consisted of pay for the 130 hours worked, less the 3.43 hours that were to be deducted, based on the shortfall of hours from June.   Her payslip for July 2023  outlines this: Basic Pay -3.34 hours @ -€123.77 (€36.08 per hour) Salary €4691.15 @ 130 hours (€36.08 per hour)

The respondent advised the hearing that the Complainant had initially been contracted to work 169 hours per month since she commenced her employment in October 2019. The nature of her work, combined with her availability for work means that it was not always possible for her to work the contracted number of hours each month.    Every month Ms. N reconciles the hours actually worked by the Complainant, against her contracted hours, and emails any adjustments to the salaries department.    Any adjustments, be they increases or decreases are subsequently adjusted in the Complainants salary the following month.

The complainant at the hearing repeatedly stated that she was paid 1 month in arrears while the respondent outlined that this is not the case referring to her contract and to previous correspondence outlining that it is only adjustments for deficits in hours which are applied 1 month in arrears.

This claim seems to have arisen form a misunderstanding on the complainant’s part regarding the method and calculation of her monthly payments.  The respondent at the hearing sought to clarify this with the complainant.

I note from the evidence adduced that the complainant had also made representations to HR at the Respondent hospital regarding her pay and that she had in fact met with the HR Manager to discuss the matter in February 2024.   I also note form the evidence adduced by the respondent that there has been extensive engagement between the Complainant and personnel of the respondent hospital during July and August 2023 on this issue.

The respondent advised the hearing that the Complainant had also referred the matter to the Labour Court under section 20(1) of the Industrial Relations Act, 1969. A hearing took place on 1st August 2024 and the Court issued the following recommendation,

The Court, having regard to all of the circumstances, recommends that the employer should arrange a meeting with the worker to ensure that both parties share the same understanding of the contract of employment, and to ensure that the worker has a full understanding of all procedures in place in the employment to facilitate the raising of grievances or complaints.

 The respondent went on to state that since receiving the Labour Courts recommendation, the Respondent has made several attempts to engage with the Claimant to implement those recommendations, but the Claimant has refused to engage.

The Complainant's position at the outset of this case and whilst giving direct evidence was that she is paid her worked hours, monthly in arrears.  This was how she alleged she was not paid the amount due to her on 28th July 2023.    The complainant later conceded under cross examination, contrary to her previous submissions that she had in fact agreed that she would be paid her contracted hours in the actual month, with any adjustments made in the following month in an email that she sent to Ms. Nolan in October 2022 (submitted in evidence).  

The complainant in her submissions and in evidence indicated that her understanding was that she had initially been paid a month in arrears before requesting that she be paid her worked hours in the month they were worked.   I note that the complaint believed this to be the case despite the respondent refusing this request in October 2022.     This meant that she had expected to be paid for 169 hours in July minus any deductions whereas in actual fact she was paid for 130 hours minus deductions incurred the previous month having changed to a 130-hour contract in July 2023.     I am satisfied from the totality of the evidence adduced that the €1,400 does not amount to an illegal deduction under the payment of wages act.

 I declare  the complaint to be not well founded.