Complainant

Respondent

Parties

Tina  Saunders

Boots Retail (Ireland) Limited.

Representatives

Mandate Trade Union

 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-00061161-001

23/01/2024

The complainant has submitted a complaint of an unlawful deduction of €159 from her wages on 24/8/2023, contrary to the provisions of the Payment of Wages Act, 1991.

The complainant is employed as a customer assistant in the respondent’s retail store since 25/9/2017.

Her gross monthly pay is €996. She works 15 hours a week.

The complainant submitted her complaint to the WRC on 23/1/2024.

Evidence of complainant given under affirmation.

The complainant confirmed that the shortfall in her wages on 24/8/2023 was €159.

The complainant states that she works three days a week totalling 15 hours and is paid an hourly rate of €15.29. The complainant states that she was entitled to payment for 3 days leave taken on 1,2,3 August 2023 which should have yielded a payment of €229. However, she only received a salary of €79 in respect of these 3 days. Hence the referral of a complaint to the WRC of a deduction of €159 from her wages.

She applied for and was granted parental leave from 9/8/2023- 19/9/2023.

She normally works 65.18-unit hours per month.

The complainant activated the grievance procedure within the company. This failed to deliver an acceptance that she had been wrongfully deducted the sum of €159. She appealed the respondent’s decision, but no satisfactory solution emerged. The respondent’s mistake was repeated at the appeal stage and so she referred her complaint to the WRC.

The respondent denies that they made any unlawful deduction from the complainant’s wages.

The complainant works 15 hours a week as a customer assistant. She earns €15.29 per hour.

Her contract stipulates that she will be paid in 12 monthly, equal instalments. The complainant’s total annual hours on which her salary is based amount to 782. Her gross monthly salary is based on 15 hours x 52.14 (number of weeks in the year) x €15.29 = €11,958 divided by 12 = €996.

Her monthly hours amount to 65.18.

The complainant was not paid for 60 hours spent on unpaid parental leave in August, which left her due a payment for 5.18 hours. The complainant was paid the correct amount of €79.

For September 2023, the complainant’s 30 hours of parental leave were subtracted from her 65.18 monthly hours, which left her due to be paid for 35 .18 hours x €15.29 =€537.0. The complainant was paid this sum.

 The total paid to her for August and September was €616.

She was due €1992 for 130 hours for August and September less the sum of €1376, due to the complainant being on 90 hours of parental leave = €616, the sum actually paid to the complainant.

She was paid for her annual leave as it’ s included in her salary.

The Employee Relations Manager gave evidence under affirmation.

The witness stated that the complainant’s contract specifies that salary is paid in twelve monthly instalments.

The complainant is entitled to 72 hours of annual leave. Payment for annual leave is paid over the 12 monthly salary instalments as opposed to the actual dates on which the employee takes the leave. Hence the complainant’s entitlement to leave in August amounted to 5.18 hours, based on the fact that the remaining 60 hours were spent on parental leave.

The total salary paid to the complainant over the two months on which she took leave amounted to €616 which was the correct amount taking into account that the total 1330.36 hours less 90 unpaid hours spent on parental leave left her with an entitlement to payment for August of 5.18 hours x €15.29 which amounts to €79.

The complainant was paid the correct amounts.  There was no deduction.

I am obliged to establish if the respondent made an unlawful deduction of €159 from the complainant’s wages on 24/8/2023.

 Relevant Law.

 Section 5 (1) of the 1991 Act states

“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.”

Section 5 (6) of the Payment of Wages Act, 1991 identifies a deduction as follows:

“Where the total amount of 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.” 

As a first step in establishing the existence or not of an unlawful deduction, the complainant must demonstrate that the payment deducted from her was a properly payable sum.

The properly payable sum identified by the complainant is €229, a sum payable to her in respect of 3 days leave on 1,2 and 3 August. This sum is based on 15 hours x €15.29 =€229.35. Instead, she was only paid €79 leaving a deduction of €159.

But the evidence shows that the practice and contract provide for the complainant’s annual leave entitlement of 72 hours to be annualised and paid over 12 monthly instalments. So, on that basis the complainant had an entitlement to 1 day’s leave for August. This did not interfere with her overall annual entitlement of 72 hours but did interfere with how payment for the leave was spread.

Furthermore, it is accepted that the complainant took unpaid parental leave from dates 7/8/- 15/9/2023.

The total amount of hours due to be paid for August was 65.18, less the 60 hours of parental leave, leaving a liability for payment of 5.18 hours x €15.29= €79. This is the sum actually paid to the complainant.

Over the August – September payment period during which the complainant took 6 weeks / 90 hours of parental leave, the complainant was entitled to be paid for 130.36 hours less the 90 hours parental leave, leaving an entitlement to payment for 40.36 hours €15.29 = €617. This sum was paid to the complainant.

The complainant has an entitlement to 72 hours annual per annum paid in twelve instalments. The complaint and her representative referred to Section 20 (2) of the Organisation of Working Time Act 1997 which entitles an employee to be paid for leave in advance of her taking the leave. But this complaint is about an alleged deduction. It is not a complaint taken under the Organisation of Working Time Act, 1997 as to how and when the respondent pays the annual leave entitlement as opposed to the withholding of payment for annual leave. There was no evidence of efforts to renegotiate the system of annual leave being paid on a monthly basis as provided for in section 20(3) of the Act of 1997.

The complainant was quite entitled to identify if she had had any of her annual entitlement to 72 hours withheld from her, leaving her with payment for annual leave of less than 72 hour and to have taken a complaint under the Organisation of Working Time Act, 1997 to redeem payment for these hours. This case was not made out.

Given the way the respondent organises the salary, the complainant is not entitled to a further €159.  This sum is not properly payable and therefore a deduction cannot be said to have been made.

I do not find this complaint to be well founded.

I decide that this complaint is not well founded.

Not a properly payable sum.