Complainant

Respondent

Parties

Evanthia Kavidopoulou

Sorcha Homes Limited t/a Horizon House

Representatives

N/A

Mr. Peter Ryan, RA Consulting

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-00067431-002

15/11/2024

The Complainant worked as a Social Care Worker for the Respondent from 1 November 2023 until October / November 2024. She was promoted to Team Leader in June 2024. The Complainant outlined that she worked a variable number of hours per week.

Following her promotion, the Complainant was initially paid €18 (gross) per hour and a lower rate of €13.70 (gross) per hour when she was rostered to sleep on the work premises. The Complainant outlined that this rate was subsequently unlawfully reduced by the Respondent to €15 (gross) per hour and a lower rate of €12.70 (gross) per hour when she was rostered to sleep on the work premises. The Respondent denies the allegations in full. The Respondent further submits that the Complainant was overpaid in error and that this error was subsequently corrected.

The Complainant further alleges that following her promotion to Team Leader, she was not notified in writing of a change to her terms of employment. The Complainant further alleges that she was not provided with a statement of her core terms in writing. The Respondent also denies these allegations in full.

The Complainant provided detailed written and oral submissions.

The Complainant submitted, inter alia, that she wants her “voice to be heard”. She submitted that she was promoted in June 2024 and that she received no new contract, despite her requests. She further stated that she was paid €18 (gross) per hour for two pay cycles. She was informed, by email on 29 August 2024 that she was on the incorrect pay rate and that the rate would be reduced. She stated that on 17 September 2024 and after a long shift, the Director arranged to meet with her and told her that she was being dismissed. She said that she has been met with “delay, deflection or silence” and did not get a straightforward answer.

The Complainant – Oral Evidence:

The Complainant outlined that she commenced her Social Care Worker role in October 2023 and passed her probation period without issue. Her tasks involved “mainly” housekeeping; preparing lunches and dinners; and caring for children aged 14 to 17 years old. The Complainant outlined that the role of Team Leader was advertised by way of a “WhatsApp” message dated 27 May 2024. She stated that she successfully applied and that she was promoted to the position of Team Leader in June 2024. She outlined that her new role had more to do with legislation, in that she was required to report more to the Manager; delegate tasks to the team; and lead the team. The Complainant outlined that there were approximately ten people in the team.

The Complainant outlined that, despite numerous requests, she did not receive a new and / or updated contract following her promotion in June 2024. She referred to her payslips dated June and July 2024 and submitted that, following promotion, she received €18 (gross) per hour. She stated that this was in line with what other Team Leaders received.

The Complainant stated that she went on annual leave from 30 August 2024 to 9 September 2024. She stated that on 29 August 2024, she received an email from Mr. Marjoram in which she was told that her pay would be reduced following an incorrect overpayment over the past three months. The Complainant outlined that she made multiple calls to the Respondent and that she emailed the Respondent but received no response. She said that her rate of pay was reduced. She said that a meeting was subsequently arranged with Mr. Marjoram on 17 September 2024, following a long shift. She said that this meeting was arranged “under false pretences” and that she was dismissed on the spot. She stated that she did not have the chance to say goodbye to the children in her care.

The Complainant made allegations of negligence; bullying; and unprofessional behaviour against the Respondent. She also stated that her signature on her contract of employment was forged.

Cross-Examination:

The Complainant confirmed that she received her core employment terms on 20 October 2022 which she acknowledged on 21 October 2022. However, she took issue with the signature on that contract. The Complainant outlined that she is taking issue with not being provided with a contract of employment for her role as a Team Leader. The Complainant outlined that she had made these requests to her Manager, Mr. Harkin. The Complainant did not know how many times exactly she had verbally requested a contract for her new position but that it was more than five times. The Complainant stated that she believes that she was entitled to a new contract for her role as Team Leader.

The Complainant confirmed that she believed that a raise of 31% in her pay, after seven months in the employ of the Respondent, was justified. She stated that this was the Team Leader rate. She stated that it was below the 2024 average.

The Complainant stated that her Manager, Mr. Harkin, had told her that the new hourly rate was €18 (gross) per hour when she was promoted on 4 June 2024.

The Complainant was asked why she should be paid more than the other Team Leader in the company, who was in receipt of €16 per hour, when the Complainant had no experience. The Complainant stated that Mr. Harkin, her Manager, told her that she would be paid €18 (gross) per hour.

The Complainant referred to a job posting for the Team Leader role, which she said was shown to her by Mr. Harkin, her Manager. She stated that he told her that he could not give her a copy. She stated that the job posting outlined her tasks, responsibilities and pay as Team Leader. The Complainant then stated that her pay rate as Team Leader was not referred to in this job posting.

The Complainant then confirmed that the only person who told her that her hourly rate would be €18 (gross) per hour was Mr. Harkin. She stated that this rate was not anywhere in writing.

The Complainant was referred to a reference letter, referring to her pay, that she received from the Respondent in July 2024 which was post-dated 30 August 2024. She said that she required it for a house search. She said that it was post-dated so that she could use it from that date. She said that she wanted “up-to-date” documents.

The Complainant stated that she has been honest and truthful.

The Respondent provided detailed written and oral submissions.

The Respondent submitted that the Complainant’s pay could not have been reduced if it was not properly payable. The Respondent submitted that the Complainant’s contract of employment refers to the fact that any pay rise must be signed off and that this had not been done here. The Complainant further submitted that Mr. Harkin, the Complainant’s Manager and friend, did not attend as a witness. The Respondent submitted that it had not sought any repayment of the overpayment.

The Respondent submitted that the Complainant received a contract of employment on appointment, which she signed. The Respondent submitted that there is no legal entitlement to a new contract of employment on promotion.

Finally, the Respondent raised a number of credibility issues regarding the Complainant’s evidence.

Ms. Gwen Prizeman – Oral Evidence:

Ms. Prizeman outlined that she was the Centre Manager from December 2012 until March 2024. She stated that from March 2024 until June 2024, she worked in a separate centre to the children’s residential home. She then took a break for a few months until she took up the Area Manager role in September 2024.

Ms. Prizeman stated that she did not recall providing the reference letter to the Complaint dated August 2024. She stated that the Respondent’s headed paper had been used, however, the language in the letter was not what she would use. She stated that she would also not refer to the Respondent as “Sorcha Homes”. Finally, she said that her new title was not confirmed until September 2024 and so she would not have used that title in any letter sign-off before that date.

Cross-Examination:

Ms. Prizeman confirmed that during her break, she still attended the Respondent’s premises on occasion. She stated again that she did not recall writing the reference letter for the Complainant. She stated that she could not have handed the letter to the Complainant in July 2024 as she was not present in July 2024. She stated that she did not recall handing the letter to the Complainant.

Mr. Conor Marjoram – Oral Evidence:

Mr. Marjoram outlined that he is the sole proprietor and Director of the Respondent since August 2006.

Mr. Marjoram outlined that he visited the home about once per month, when he saw the Complainant. He stated that he also saw her at training events.

Mr. Marjoram stated that the Team Leaders had five years’ experience, including four years of post-qualification experience. He stated that a BA in Social Care is the preferred degree for a Team Leader. He stated that a psychology degree is an acceptable degree but that it is not the preferred degree.

Mr. Marjoram stated that the Complainant had a psychology degree. He said that on promotion to Team Leader, due to the Complainant’s experience levels, she would have received €15 (gross) per hour, which was one Euro less per hour than the more experienced Team Leader. He stated that the rate of €15 per hour applied from the date of promotion.

Mr. Marjoram outlined that he carried out a payroll inspection and saw that the Complainant’s hourly rate was €18 (gross) per hour, which had not been approved. He enquired with the Accounts Team. He saw that the email approving the €18 (gross) per hour had come from the Manager, Mr. Harkin. He said that this had been done without his consent and that it had not been in line with the process for pay consultations or pay rises. He stated that if the Complainant had been on a pay rate of €18 per hour, that would have been an increase of approximately 33% which would not have been approved at any level.

Cross-Examination:

Mr. Marjoram was referred to the Complainant’s payslips dated June and July 2024. He confirmed that the Complainant was paid €18 (gross) per hour in July and August 2024. He stated that he contacted the Complainant after that date to say that there was an error in her pay.

Mr. Marjoram stated that he noted in his email dated 29 August 2024 that the Complainant was on annual leave when he had emailed her regarding her pay. He said that there was no meeting arranged with the Complainant.

Mr. Marjoram confirmed that the Complainant was promoted in June 2024 and that he wrote to her three months later outlining her pay.

Mr. Marjoram denied that that the Complainant was dismissed from her job for asking for a contract. Mr. Marjoram stated that the Complainant had been treated in accordance with the Respondent’s policies.

The Law:

Under the Payment of Wages Act 1991 as amended (the “PWA”), “wages” 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 PWA further 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.”

And

“5(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment”.

And

“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.”

Section 5(6) of the PWA was considered in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the PWA has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful.

Findings and Conclusion:

In order to determine what wages are properly payable, I must firstly consider the Complainant’s contract of employment. The contract of employment on record concerns the Complainant’s role as Social Care Worker. The Complainant confirmed that she had received this contract some weeks into her employment in late 2024. The contract of employment states as follows:

“4. Remuneration:

Your rate of pay will be €12.70 (sleeping hours) or €13.75 (waking hours) gross per hour and will be subject to statutory (income tax, PRSI, etc.) and agreed deductions as appropriate. […]

Deductions for any overpayments (generally or where you have not worked your rostered hours as per the rota), unauthorised expenses or advances repayable to the Organisation will be made from subsequent payments, once discovered. Should you become aware of any overpayments, you are required to bring them to the immediate attention of your manager. Upon termination of employment, any overpayment which may have been made will be deducted from final pay.

Adjustments to salary or other key contract terms will be advised in writing only and no other communication should be understood to indicate a promise, commitment or undertaking to adjust salary or other contract terms.”

The rates of pay in the Complainant’s contract of employment no longer applied, as she was promoted to the position of Team Leader in June 2024. It was the Complainant’s case that Mr. Harkin, her Manager who is no longer in the Respondent’s employ, told her that her new rate as Team Leader would be €18 (gross) per hour. This rate was in effect for two pay cycles before being reduced by the Respondent to €15 (gross) per hour. The Complainant had no documentary evidence to support the pay increase outlined by Mr. Harkin. While Mr. Harkin attended on the first and second hearing days, he gave no evidence whatsoever.

It was the Respondent’s case that Mr. Marjoram, the Respondent’s Director had oversight of staff pay and that he did not authorise the Complainant’s pay rate of €18 (gross) per hour. Notably, Mr. Marjoram’s oral evidence was corroborated by his email dated 1 August 2024 to the Accounts Department in which Mr. Marjoram sought clarification and stated, inter alia:

“I have not been informed about this I authorise all payment rates / contracts and have not been in any discussion regarding any changes”.

Mr. Marjoram also provided oral evidence concerning the Complainant’s level of experience and qualifications, in contrast to the other Team Leader, and the differing pay rate allocated to both members of staff as a result.

Finally, the Respondent provided a copy of Mr Marjoram’s email to the Complainant dated 29 August 2024 in which he explained, inter alia, that there had been an “unauthorised overpayment for June and July”.

On the Respondent’s oral evidence, which was corroborated by the documentary evidence before me, I am satisfied that the Complainant’s payment of €18 (gross) per hour was not authorised by Mr. Marjoram. I am further satisfied that this hourly rate had not been confirmed to the Complainant in writing as per her contract of employment. In the circumstances, I find that the hourly rate of €18 (gross) was not properly payable to the Complainant. Therefore, I find that this complaint is not well founded.

For the reasons set out above, I find that this complaint is not well founded. 

Payment of Wages Act 1991.