PWD2522

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00047220 (CA-00058144-004)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act,

1991. The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace

Relations Act, 2015. 

The following is the Court's Decision:

DETERMINATION:

This is an appeal by Bernadette Baker of a decision of an Adjudicator Officer (ADJ-00047220 dated 19 December 2023) regarding a complaint made under the Payment of Wages Act 1991 (“the Act”) against her former employer, the Health Service Executive.

The Adjudication Officer found that the complaint was well founded and made an award of €200 compensation.

A Notice of Appeal was received by the Court on 20 December 2023.  This appeal is linked to EDA2552 and TED2513 which were heard on the same day.

In this Determination the parties are referred to as they were at first instance. Hence, Bernadette Baker is referred to “the Complainant” and the Health Services Executive is referred to as “the Respondent”.

Summary Position of the Complainant

The Complainant submits that the Respondent failed to pay her the full amount of the Pandemic Special Recognition Payment that was owed to her resulting in a shortfall of €400.

The Complainant further submits that the Respondent under calculated her leave entitlement, and as a result she did not receive all holidays owing to her.

The Complainant further raises issue about the way that her revenue status was recorded by the Respondent which resulted extortionate tax deductions.

Summary Position of the Respondent

The Complainant submitted her complaint under the Act on 5 August 2023 referencing pay periods from 2021 and 2022, which fall outside the six-month time limit allowed under the Act.  Notwithstanding that fact, the Respondent has not on any occasion made an unauthorised deduction from the Complainant’s salary nor has she suffered a loss in pay. 

The Respondent accepts that a €400 shortfall arose in relation to payment of the Complainant’s Pandemic Special Recognition Payment. It submits that the €400 shortfall arose in error and was subsequently paid to the Complainant as part of her cessor pay on 1 December 2023. In addition, the €200 compensation award was paid to the Complainant on 9 February 2024 as per the Adjudication Officer’s decision.

When the Complainant commenced employment on 2 June 2021, she was initially placed on emergency tax. Her tax details were subsequently set up on 16 June 2021 following a directive from Revenue. No breach of the Act arises in relation to the Complainant’s tax treatment.

When the Complainant left the employment of the Respondent, she had taken more than her leave entitlement. No breach of the Act arises in relation to the Complainant’s annual leave.

The Applicable Law

Time Limits

Section 41(6)) of the Workplace Relations Act, 2015, provides 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.”

Section 5 of the Payment of Wages Act 1991 provides in part as follows:

(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.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer 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.

Deliberations

The Complainant contends that the Respondent contravened the Act resulting in a shortfall in her wages by (i) failing to pay her the full amount of the Pandemic Special Recognition Payment (ii) undercalculating her leave entitlement, and (iii) failing to correctly record her Revenue status.

To succeed in a complaint under the Act, an employee must set out details of a contravention of the Act that occurred within the cognisable period for the complaint.  As the within complaint was submitted to the Workplace Relations Commission on 5 August 2023, the relevant period for consideration by the Court, having regard to the timelines set out at Section 41(6)) of the Workplace Relations Act, 2015, is the period from 6 February 2023 to 5 August 2023.

The Complainant submits that the Respondent failed to pay her the full amount of the Pandemic Special Recognition Payment that was owed to her resulting in a shortfall of €400.

The Respondent accepts that an incorrect payment relating to the Pandemic Special Recognition Payment was made to the Complainant which resulted in a shortfall in the monies owed to her. Under the Act, the non-payment of monies owed to an employee is regarded as a deduction made by the employer. The Respondent in this case accepts that there was a shortfall in the Complainant wages relating to that matter. 

In the circumstances outlined to the Court, the Court finds that an unlawful deduction from the Complainants wages occurred during the relevant period regarding the underpayment of the Pandemic Special Recognition payment and so determines that the complaint is well founded.

The Complainant contends that the Respondent failed to calculate her leave entitlements correctly which resulted in a shortfall in her wages.

The Complainant failed to provide any evidence to the Court to support a complaint that she suffered a shortfall in her wages, as it related to her leave entitlements. As a result, the Court finds that the Complainant has failed to make out her complaint. Accordingly, the Court finds that the complaint regarding a contravention of the Act as it relates to the undercalculation of the Complainant’s leave entitlement is not well founded.

The Complainant contends that the Respondent failed to correctly record her Revenue status which resulted in extortionate tax deductions.

The Complainant failed to provide any evidence to the Court to support a complaint that she was paid less that than wages properly payable to her. As a result, the Court finds that the Complainant has failed to make out a complaint. Accordingly, the Court finds that the complaint regarding a contravention of the Act as it relates to tax deductions is not well founded.

Redress

Having decided that the complaint in relation to an underpayment of the Pandemic Special Recognition Payment is well founded, the Court must consider what award, if any, is reasonable in the specific circumstances.

At the hearing the parties confirmed that the amount of the underpayment owed to the Complainant in relation to the Pandemic Special Recognition payment was subsequently paid to the Complainant in December 2023. 

The Court further notes that the Respondent paid to the Complainant an award of €200 compensation in February 2024, in compliance with the Adjudication Officer’s decision (ADJ-00047220, dated 19 December 2023).

The Court considers that the award of compensation made by the Adjudication Officer was reasonable having regard to all the circumstances giving rise to this complaint and finds that no further compensation is warranted.

Decision

The Court finds that the complaint is partially well founded. The Court determines that the Complainant suffered a deduction from her wages during the cognisable period for the complaint in relation to the Pandemic Special Recognition payment and that this deduction was unlawful.

The decision of the Adjudication Officer is affirmed. 

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
CC	______________________
1 July 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Ceola Cronin, Court Secretary.