Complainant

Respondent

Parties

Elaine  Duffy

Health Service Executive

Representatives

Aislinn Finnegan BL instructed by Michelle Dolan of Groarke & Partners Solicitors

Kevin Little, Employee Relations Representative, HSE

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977

CA-00062271-001

19/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991

CA-00062271-002

19/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act 1997

CA-00062271-003

19/03/2024

The Complainant had full representation at the hearings. The Complainant provided me with a number of written submissions together with supporting documentation. I additionally heard from the Complainant and the evidence adduced by the Complainant was challenged as appropriate by the Respondent’s representative.

The Respondent was represented by its Employee Relations Representative at the hearings. The Respondent provided me with written submissions together with supporting documentation. I additionally heard from a witness for the Respondent. The Respondent’s witness was cross-examined by the Complainant’s representative. In addition the Respondent’s representative made oral submissions on behalf of the Respodent.   

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing and the oral and written submissions made by and on behalf of the parties at the hearing.

CA-00062271-001: Unfair Dismissals Act 1977 (as amended)

Preliminary Issue – Jurisdiction

The Complainant referred a complaint to the WRC under the Unfair Dismissals Act 1977 (as amended) (hereinafter referred to as “the 1977 Act”). on the 19th March 2024 wherein she claimed that she was dismissed from her employment with the Respondent on the 21st September 2023. By way of written submissions received by the WRC on the 12th June 2024 a claim of constructive dismissal and the withdrawal of resignation were introduced. The said written submissions concluded by stating that the Complainant was dismissed from her employment on the 16th October 2023. Throughout the oral and written submissions and oral evidence the Complainant sought to maintain alternative claims of dismissal. As far as the Respondent was concerned the Complainant was not dismissed from her employment with the Respondent, whether by the employer ending the employment relationship or the employee ending the employment relationship; the Complainant simply requested to return to her substantive post and this was facilitated by the Respondent.

The existence of a dismissal is a jurisdictional precondition for the WRC to consider a claim under the 1977 Act. Therefore, a preliminary issue arises as to whether the Complainant was dismissed within the meaning of section 1 of the 1977 Act.

Section 1 of the 1977 Act defines “dismissal” as follows:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

It is therefore necessary to determine whether the Complainant’s contract of employment was terminated within the meaning of this section.

In the instant case, whilst the circumstances giving rise to the Complainant leaving work on the 21st September 2023 were in dispute it was common case that on the 21st September 2023 the Complainant ceased attending work and that she returned to work on the 8th January 2024.

Whilst there was communication between the Complainant and various servants and/or agents of the Respondent wherein the word resignation was used, having considered the evidence of the Complainant and the documentation furnished by the parties to the WRC I do not accept that any reference to resignation was to be construed as meaning that the Complainant was resigning or had resigned from her employment with the Respondent. I find that the word resignation was used in the context of her role on the HSE Community Vaccination team and her expressed desire to return to her substantive post in Cavan General Hospital.

I further note that the Respondent did not issue a letter of dismissal or otherwise communicate any termination of the Complainant’s employment with the Respondent. The Complainant was not issued with a final payslip or any correspondence confirming the end of her employment with the Respondent. The Respondent engaged with the Complainant in order to facilitate the Complainant’s return to work. When the Complainant did engage with the Respondent she engaged as if she were an employee of the Respondent and she did so using her HSE email address. The Respondent continued to regard the Complainant as an employee albeit she was not paid between the 16th October 2023 and the 8th January 2024.

For a complaint to fall within the jurisdiction of the 1977 Act there must have been a “dismissal” as defined in the legislation. Taking into consideration the evidence of the parties, the oral and written submissions and the documentation furnished to the WRC I am satisfied that the Complainant’s contract of employment was not terminated by the employer (the Respondent) or the employee (the Complainant) and that the employment relationship between the parties remained in existence at all material times. I find that no dismissal took place within the meaning of the 1977 Act and that the Complainant remained employed by the Respondent. Accordingly, I do not have jurisdiction to adjudicate on this complaint and therefore the complaint is not well-founded.

CA-00062271-002: Payment of Wages Act 1991

In considering whether the Complainant’s wages were the subject of an unlawful deduction as alleged, it is necessary to examine the relevant provisions of the Payment of Wages Act 1991  (hereinafter referred to as “the 1991 Act”).

Section 1 of the 1991 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:

…

Section 5 of the 1991 Act serves to regulate certain deductions made and payments received by employers.

Section 5(1) of the 1991 Act provides as follows:

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.

Section 5(6) of the 1991 Act addresses the circumstances in which wages which are properly payable are not paid:

5(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.

The non-payment of wages that are properly payable to an employee is therefore an unlawful deduction by the employer. 

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. If it is established that a deduction within the meaning of the 1991 Act had been made, the WRC would then consider whether that deduction was lawful.

Therefore, the question to be decided is whether the wages claimed by the Complainant were properly payable.

The Complainant referred a complaint to the WRC under the 1991 Act on the 19th March 2024 alleging that the Respondent paid her until the 16th October 2023 and that her wages then stopped until she recommenced in her substantive post on the 8th January 2024. On the same complaint form the Complainant referred a complaint to the WRC under the Unfair Dismissals Act 1977 (as amended), addressed above, wherein she claimed that she was dismissed from her employment on the 21st September 2023. By way of written submissions furnished to the WRC the Complainant submitted that she was dismissed from her employment on the 16th October 2023 but that if the Adjudication Officer was to find that she was neither dismissed by the Respondent nor constructively dismissed and that she remained in employment during the period from the 16th October 2023 to the 8th January 2024 she was entitled to be paid her normal wages.

It was accepted by the Complainant that she did not work between the 16th October 2023 and the 8th January 2024. The Respondent disputed the claim stating that the Complainant was on an unauthorised leave of absence during the said period and that no wages were due, as the Complainant had not presented for work and had provided no authorisation or certification for her absence.

In the matter of Fuller & Ors v. Minister for Agriculture and Minister for Finance [2008] IEHC 95, Gillian J. referred to the following passage,

“There was no contract to pay it unless it was earned. If she had not worked at all during the week, though the contract for service remained, she would not have been entitled to any payment; and could it be said that when, being entitled to nothing, she was paid nothing, the non-payment was an offence under the Act?...The non-payment took nothing from her to which, in any view, she had become entitled, or to which, when the week ended, she could have ever become entitled. It was simply withholding payment of what she had not earned, and never could earn.”

In the more recent case of Larkin Unemployment Centre Limited v. Deborah Eustace PWD226, the Labour Court held that an employee must actually work assigned hours for wages to be deemed properly payable for the purposes of the 1991 Act.

Taking into consideration the evidence of the parties, the oral and written submissions and the documentation furnished to the WRC I am satisfied that the Complainant did not attend work between the 16th October 2023 and the 8th January 2024 whilst being fit to do so during this period. Based on the Complainant’s own evidence and the documentation furnished to the WRC I do not accept that the Complainant made extensive efforts to return to work. Between the 16th October 2023 and the 8th January 2024 no hours were worked by the Complainant. I am satisfied that the Complainant’s absence was unauthorised and not covered by medical certification or any other agreed form of leave. The Respondent did not dismiss the Complainant and remained willing to facilitate her return to work. I find that the Complainant was not entitled to wages during the relevant period and therefore, the Respondent’s non-payment of the Complainant’s wages does not constitute an unlawful deduction within the meaning of the 1991 Act. Accordingly, I find that the complaint is not well-founded.

CA-00062271-003: Organisation of Working Time Act 1997

The Complainant referred a complaint to the WRC on the 19th March 2024 under the Organisation of Working Time Act 1997 (hereinafter referred to as “the 1997 Act”) wherein she claimed that she did not receive her paid holiday/annual leave entitlement. 

Annual Leave Entitlement

Section 19 of the 1997 Act outlines that an employee’s annual leave entitlement is based on the amount of time that they have worked during the year as is calculated in three ways:

(a)   4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment).

(b)   One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)    8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)

Section 2 of the 1997 Act defines “the leave year” as a year beginning on any 1st day of April.

In the matter of Waterford City Council v. Mr Stephen O’Donoghue DWT0963, the Labour Court stated that,

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

In Singh & Singh Limited trading as Gaylord Tandoori Restaurant v. Nitin Guatam, Balbeer Singh and Manohar Singh DWT0544 the Labour Court held, relying on the decision of Lavan J in Royal Liver v. Macken and Others [2002] 4 IR 428 that,

“From this Judgement it is clear that where an employer fails to provide an employee with the requisite amount of paid annual leave the contravention of the Act occurs at the end of the leave year to which the leave relates.”

The specific complaint under the 1997 Act relates to annual leave accrued during the period from June 2023 to the 31st December 2023.The complaint was referred to the WRC on the 19th  March 2024. By reason of the definition of a leave year in the 1997 Act the leave year covered by this complaint is the leave year commencing on the 1st April 2023 to the 31st March 2024. In circumstances whereby the leave year had not concluded within the cognisable period, I find that this complaint is not well-founded.

CA-00062271-001: Unfair Dismissals Act 1977 (as amended)

For the reasons set out above I decide that no dismissal took place within the meaning of the Unfair Dismissals Act 1977 Act (as amended) and that at all material times the Complainant remained employed by the Respondent. Accordingly, I do not have jurisdiction to adjudicate on this complaint and therefore the complaint is not well-founded.

CA-00062271-002: Payment of Wages Act 1991

For the reasons set out above I decide that this complaint is not well-founded.

CA-00062271-003: Organisation of Working Time Act 1997

For the reasons set out above I decide that this complaint is not well-founded.