Complainant

Respondent

Parties

Patricia  McGlynn

DePaul Ireland

Representatives

Self-Represented

Self-Represented

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-00068737-001

20/01/2025

This matter came before the Workplace Relations Commission dated 20/01/2025.  The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 29/04/2025.  The Respondent did not attend at hearing on 29/04/2025.  I was not satisfied on the day the Respondent was properly on notice of the hearing. 

Accordingly, the matter was re-listed for hearing on 20/06/2025. 

The Complainant was employed by the Respondent as a Chef at all material times.  The Complainant commenced her employment with the Respondent on 01/03/2011. 

The Respondent is a leading charity supporting some of the most marginalised experiencing or at risk of homelessness.  The Respondent is mainly funded through statutory income primarily Section 10 and Section 39. 

The within claim relates to the non-payment of increments.

It is noted having regard to the provisions of the relevant legislation that the exact date or amount of the alleged unlawful deduction have not been specified on the original WRC complaint form. 

Both parties provided helpful written submissions in advance of hearing for which I am grateful. 

CA-00068737-001

Overview of WRC complaint form

I commenced working this position for DePaul Ireland on the 1st March 2011, contract was signed on 7th March 2011.  My contract states that I was to be on a salary scale ranging from €33,120 to €43,578.  My employer has never paid me any increment in wages which were due under the contract.  I inquired about this by email on 27th February 2019 and was told that all such increments were frozen.  I also inquired again in 2024 and was again told that increments are frozen.  Whilst in the early years of my employment, I received a pay cut due to cuts in funding, and I could understand that the organisation might not be in a position to pay increments.  At this stage though, some 14 years after commencing this role, I believe the organisation are now just using this as an excuse.  They are clearly in breach of the terms of the contract which they offered me and both they and I signed.  It should be noted that I did not receive at any stage any formal notification that pay increments under my contract were frozen – I was only informed after I wrote to the organisation. 

Upon receipt of the Complainant’s complaint the WRC set out the following by correspondence:

“The complaint application has undergone validation checks and the following issues have arisen.  The complaint cannot be further processed until these issues have been addressed/ clarified in writing. Your original complaint and any associated documentation are attached.

Ø  On what date should you have received the payment?

Ø  Please state monetary value of wages/pay not received:”

The Complainant by response set out the total estimated missed payments due under contract in the sum of €89,063.00 gross and submits her belief that the increments were on 8th March on each subsequent year from the signing of her contract. 

The Complainant at hearing submitted she did not receive any formal notification that increments would be frozen.  The Complainant submits she would have signed the letter received in March 2012 from the CEO agreeing to the implementation of a 10% cut to her salary. 

Upon inquiry, the Complainant submits she did seek the assistance of SIPTU with her claim and that SIPTU declined to assist her. 

The Complainant submits they (SIPTU) asked her to let them know how she gets on with her claim to the WRC. 

CA-00068737-001

Overview of written submission

The Complainant commenced her role as a Chef working in Sundial House on the 28th of February 2011 and was issued a contract of employment.  This contract of employment contained a clause outlined a 10 point pay scale placing the Complainant at point 1 of this 10-point scale.

The contract of employment states that the salary scale applicable to the role, however, it does not commit to increments.

Depaul has never explicitly committed to salary increases year on year.  Salaries are reviewed as part of the budgetary process annually and are dependent on funding from our statutory partners.  The complainant commenced on 33,120 euro per annum and is now on 36,556 euro per annum and her salary has increased in line with the gradual restoration over a 10 year period on the 2012 pay cuts.   

In terms of background, which you may considered to be beyond the Statute of Limitations:

a. On the 13th of December 2011, the then CEO, Kerry Anthony, issued a letter (Appendix B) to all staff informing them of significant funding cuts of 18% over the previous 4 years and notifying staff of the necessity for cuts to salaries in the 2012.

b. On the 16th of January 2012 a memo (Appendix C) was again issued informing all staff of the next steps in the salary adjustment process.  All staff were invited to a town hall meeting on the 31st of January 2012.  This would commence a consultation period.  Staff would be invited to provide feedback and put forward any questions.  The memo outlined this would be followed with a visit from the Senior Management Team to each site to answer any further questions and provide further clarity on next steps.

c. On the 1st of March 2012 a letter was sent to all staff informing them of the planned cuts to salary (Appendix D)

d. On the 28th of March 2012 a memo was circulated with a revised timeline on the process with cuts being implemented from the 1st of May 2012.

e. On the 2nd of May a follow up memo (Appendix F) was issued by the CEO, Kerry Anthony, to all staff outlining changes to the proposed cuts, cuts would now be based on your salary on an increasing scale from 5% to 10%.  These cuts would be evidenced in the May payslip due to be issued on the 24th of May 2012.

f. Communications followed in November 2013, November 2014 when a rebate was paid to all staff as promised as part of the salary cut consultation

g. In 2015, 2016, 2018 salary restoration was actioned and paid to all staff to commence bring salaries back to the pre-cut levels. 

On the 27th of September 2024 Paula Wynne, Depaul Senior People Partner received an email from the Complainant highlighting her concerns in relation to increments outlined in her contract of employment issued in 2011.

This was followed with emails (Appendix H) and a letter (Appendix I) from the Director of People and Organisation clearly outlining the position in relation to funding for salaries.  This letter clearly outlined the link between Depaul salaries and the reliance on statutory funding, and the commitment to pursue salary progression for the workforce.

It is the opinion of Depaul that all staff were consulted and fully informed at each step with regard to the funding situation, going back as far as 2012 from the time of the salary cuts.

Depaul Ireland is fully engaged with SIPTU on implementing the most recent decision from the WRC in terms of the most recent award of 9.25% to Health and Social Care and Homeless Sector employees who are funded by Section 10, 39, 40 and 56.

It is our case, that there are no outstanding payments due to the complainant under the Payment of Wages Act 1991.

The Respondent submits at hearing the CEO’s communication to staff in December 2011 was very clear having regard to the financial position and the 18% cuts in statutory funding imposed over the last 4 years.  The Respondent submits the FEMPI legislation put them in the same category as public sector workers.

The Respondent submits there is no jurisdiction for the WRC to hear this matter as an individual claim as the matter is already being dealt with as a collective matter for Health and Social Care and Homeless Sector employees who are funded by Section 10, 39,40 and 56.   

CA-00068737-001

This is a complaint pursuant to the Payment of Wages Act, 1991.    

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. 

Time Limit for Submitting a Complaint

The Payment of Wages Act, 1991 provides that an employee may recover for unlawful deductions within a period of six months from the date of contravention.

The Complainant first raised the matter of the within claim with the Respondent in 2019 as set out in her WRC complaint form.  The Complainant filed her complaint with the WRC on 20/01/2025. 

Therefore, the cognisable period for this complaint is from 21/07/2024 to 20/01/2025.  

There is no dispute or disagreement on the fact that increments were frozen by the Respondent and have not since been restored.  It is not in dispute that up to 2012 the Respondent operated a scale structure for each grade with annual increments up to the maximum of each scale.  It is not in dispute that agreement was reached with union and employees that the points on which existing staff had reached were frozen. 

In the case of the Complainant this meant that she remained frozen on the first point of the 10-point scale as she had commenced her employment the previous year in 2011.  

The Relevant Law

Section 1 of the Payment of Wages Act, 1991 (the “1991 Act”) 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:

The 1991 Act in section 5 prohibits an employer from making a deduction from the wages of an employee unless the deduction is authorised to be made by virtue of any statute or any instrument under statute or is required or authorised to be made under the employee’s contract of employment or the employee has consented to same. 

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.

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 where it was held as follows: 

• “The starting point is that the appellant was initially liable to be paid the amount stipulated in the written contract, and only became liable to be paid a lesser amount if there was some enforceable variation of that contract, whether by waiver, estoppel or agreement.”  [emphasis added] 

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.   It is only when that is determined can I proceed to examine whether that amount differs from that which was actually paid on the occasion and whether any difference amounted to a deduction within the meaning of the Act.

The Relevant Facts

There is no dispute or disagreement on the fact that increments were frozen under what the Respondent referred to as an “umbrella of salary adjustments”.  There is no dispute or disagreement on the facts that increments have not been restored.  There is no dispute on the fact the 10% salary cut imposed in 2012 has since been fully restored and I note there have been increases of 3%, 2%, and 3% applied in 2023/4 following on from inflationary increases applied by the Respondent n 2021/2 initially 2% followed by a further 1%.     

I note the Respondent submits it is fully engaged with SIPTU on implementing the most recent decision from the WRC in terms of the most recent award of 9.25% to Health and Social Care and Homeless Sector employees who are funded by Section 10, 39, 40 and 56. 

I note the Complainant submits that the amount properly payable to her, is at all material times, to be assessed by reference to the written contract of employment.

It is a general principle of contract law that the terms of a contract cannot be altered without the agreement of both parties. Circumstances where an employer makes unilateral alterations to the provisions of a contract of employment would generally be regarded as constituting a breach of that contract.  If this matter were subject to a determination under the law of contract it would be a relatively straightforward matter. 

However, this complaint as presented falls to be determined under the Payment of Wages Act, 1991 and it is through the lens of that legislation this complaint has to be investigated.   

It is noted the WRC is asked to adjudicate on a matter under the 1991 Act at a time when the parties are engaged collectively under the auspices of the WRC. 

I note with interest the Complainant sought restoration of her increments through her trade union and that assistance in the pursuit of her claim was not provided to her by her trade union.  I note the Complainant submitted in correspondence to the Respondent in September 2024 that her intention was to refer this matter to her union and request that their legal advisors review the situation and advise her on a course of action.       

Increments

I note the Complainant’s contract of employment provides as follows:

“The annual salary for the above post is €33,120 per annum.  The salary range for the post is on a 10 point scale from €33,120 - €43,578.  Salaries are paid monthly on the 24th of each month, or the Friday before that.”

I note the Employee Handbook that accompanied said contract provides as follows:

“Salary

Depaul Ireland salaries are based on a salary scale grade system.  The salary scale is formulated in relation to benchmarking within the relevant sector within the national market. 

Any annual increment due is awarded annually on 1 January in Dublin and 1 April in Northern Ireland provide the employee has been in a full time post for 6 months and has passed the probationary period. 

Increments are paid until the top spinal point for the scale is reached.  Cost of living increases are in line with Sustaining Progress and NJC or subsequent national agreements.  (These may be backdated upon final agreement). 

Benchmarking and national pay agreements act as a guideline only for salary and other conditions of service.  Salary increases may be withheld or paid at a later date when DPI’s financial resources are limited.”   [emphasis added] 

It is well-established that increments are not automatically applied in all employments.  I note there may be situations where the application of an increment is contingent on an employee’s satisfactory performance review for example.  I note no such precondition attaches to the application of increments in the within case apart from a requirement that the employee has been in a full-time post for 6 months and has passed the probationary period as set out in the Employee Handbook. 

I note the Employee Handbook provides as follows:

Membership of a Trade Union

“Depaul Ireland recognises the advantages of Trade Union membership and encourages staff to join a union.  DPI would prefer to conduct negotiations with regard to salary and conditions of service by a process of collective bargaining.” 

I note the introduction to the Employee Handbook provides as follows by way of a variation of terms and conditions clause: 

“By their very nature, policies, terms and conditions, benefits, procedures and standards are constantly under review as they are affected by applicable laws, regulations, economic conditions and organisational needs.  You should note that it might be necessary to vary your terms and conditions of employment from time to time and the company reserves the right to do so in consultation with employees.”  [emphasis added] 

I note and it is not in dispute that there was consultation with employees which commenced at the end of 2011 informing staff of the necessity to cut salaries in 2012.  I note this was followed by a memo in mid-January 2012 advising of next steps in regard to salary adjustments and advising of obligatory paid attendance at meeting on 31 January 2012. 

I note all staff including the Complainant were written to following on from the meeting on 31 January formally outlining the next steps in the salary adjustment process and seeking agreement to the proposed salary adjustments by signature which I note the Complainant submits she would have signed at the time. 

I note the Respondent briefed all staff by memo of 28 March 2012 that it was anticipated that negotiations with SIPTU would have concluded and agreement would have been reached about how the required savings would be fully implemented. 

I note the Complainant now seeks a remedy pursuant to the Payment of Wages Act, 1991 for the non-payment of contractual increments which were frozen in 2011 and have not since been restored.  I note contractual increments have not been restored for any employees whilst at the same time noting the collective bargaining process dealing with this sector which is ongoing.   

I note and it is not in dispute the Complainant has benefited from the various collective agreements as set out above and will continue to do henceforth as the collective process is ongoing. 

However, the Complainant is now asserting that the rights and entitlements that flow from the provisions of her contract take precedence over that which is agreed through a collective process and from which agreement she has benefited. 

I note the Complainant’s position that the amount “properly payable” to her is to be assessed by reference to her written contract of employment.      

However, when determining the amount that is properly payable to the Complainant and in assessing whether or not there has been an unlawful deduction from her wages, I note there was consultation with the Complainant.  The Complainant was consulted and she agreed to the salary adjustment measures adopted by the Respondent in 2012.  I note one such measure was the freezing of increments.  I am of the view that in the absence of an agreement to pay increments then such payments are not “properly payable” and consequently no deduction of pay has occurred within the meaning of the 1991 Act on the date of the alleged contravention.    

For the reasons outlined above, I am unable to find the amount in the sum of €89,063.00 gross, as claimed by the Complainant, to have been unlawfully deducted from her salary in circumstances where the salary that is paid to her is that to which she agreed in 2012 albeit that salary has been adjusted with the passage of time due to the application of numerous collective agreements.    

I note negotiations are ongoing and that the Respondent is fully engaged with the relevant trade union on implementing the most recent decisions from the WRC in terms of the most recent award of 9.25% to the cohort of employees of whom the Complainant is a member. 

Accordingly, for the reasons outlined above I find this complaint as presented to be not well-founded.   

CA-00068737-001

For the reasons outlined above, I decide this complaint is not well-founded. 

Increments frozen; pay restoration; collective bargaining;