PWD264

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00050682 (CA-00062283-001)

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 on 11 March 2026. The following is the Court's Decision:

DECISION:

1. Background

This is an appeal by Leah Keating (“the Complainant”) against a Decision of an Adjudication Officer (ADJ-00050682 – CA-00062283-001, dated 13 December 2024) in a complaint made under the Payment of Wages Act 1991 (“the Act”) against her employer, Waterford and Tipperary Community Youth Services (“the Respondent”).

The Adjudication Officer found that the complaint was not well founded.

An appeal of the decision was lodged to the Labour Court on 13 January 2025.  A Labour Court hearing scheduled to take place on 4 November 2025 was postponed. The appeal was heard in Waterford on 11 March 2026.

2. Summary Position of the Complainant

The Complainant commenced her employment on 5 July 2013, as a Community Drugs Worker, based in Tramore, County Waterford. Salaries of all frontline staff in the organisation are based on the City of Dublin Youth Services Board (CDYSB) Youth Worker salary scale.

The Complainant’s contract of employment states: -

“The gross salary payable is €31,070 as specified on the CDYSB salary scale (Point 2) …pay awards and increments are subject to finance being available from the Southeast Regional Drug Task Force (SERDFT) to fund the project”.

The Complainant did not receive the increments provided for in her contract of employment. No issue arose until she learned that other members of staff received increments. The Complainant returned from maternity leave in 2023 to learn that the employee seconded to cover her maternity leave was remunerated on a higher rate of pay. The Complainant lodged a formal grievance seeking a review of her salary scale.

The Complainant contends that she is entitled to receive the correct rate of pay as per the CDYSB salary scale, as expressly stated in her contract of employment. The Complainant rejects the Respondent’s assertion that her salary is merely ‘based on’ the CDYSB scale.

The Complainant is a Section 39 worker, as the task force that she works in is funded directly by the HSE. At no time during her employment were any funding cuts implemented. The Respondent contention that the Complainant is not ‘technically’ a Section 39 worker contradicts its own actions in 2021 when it awarded her an increment due to an increase in funding for section 39 workers.

In 2022 the Respondent unilaterally introduced a new pay scale titled WSTCYS Salary Scale, with lower increments than that provided for in the Complainant’s contract of employment.

As the Complainant was employed in 2013 on point 2 of the CDYSB Youth Worker salary scale, she is entitled to be paid at the top of scale, i.e. €52,272. The shortfall in her wages constitutes a deduction under section 5(6) of the Act. The Complainant seeks that the Court award the Complainant the shortfall due to her and award compensation of twice the amount owed.

3. Summary Position of the Respondent

The Respondent is a community youth-based service providing various support to those requiring their services. The Complainant is employed as a Community Drugs Worker.

The Complainant commenced employment on an annual salary of €31,070, based on Point 2 of the City of Dublin Youth Services Board (CDYSB) Youth Worker salary scale.  Staff salaries are based on the CDYSB Youth Worker salary scale, so that the organisation has a recognised national pay scale when setting salaries and as a guide for incremental pay progression (when funding permits). This is not the same as salaries being linked to this scale.

The Complainant contends that, as the CDYSB Youth Worker salary scale is noted on her contract, she is entitled to be paid on that scale. The Complainant is not, nor ever has been, a youth worker.  The Complainant’s contract does not expressly link her salary to the CDYSB Youth Worker salary scale. It contains simply the phrase indicating from where the salary detail is derived. No employee in the organisation is or has ever been paid on the Youth Worker salary scale. No such role exists in the organisation.

The CDYSB Youth Worker salary scale, which is issued to Chief Executives of Education and Training Boards (which are statutory bodies), is not applicable to the Respondent which is a community and voluntary organisation.

The Complainant further contends that she is a Section 39 worker. The Complainant is not a Section 39 worker. Nine staff members are employed in Community Drugs and Drugs Outreach projects, five of whom work on projects funded by the HSE under Section 39. The Complainant’s project is funded by the South-East Regional Drug and Alcohol Task Force (SERDATF), as stated in her contract of employment.

The Respondent accepts that staff working on projects funded by SERDATF were given Section 39 pay restoration awards in 2021 and in 2024; this was to ensure they were not disadvantaged in the context of their terms and conditions of employment, purely based on the funding stream for their post.

Since 2022, the Respondent amalgamated salary scales in the organisation. The amalgamation of scales was solely for administrative purposes and does not impact the Complainant’s core terms.

All improvements to the Complainants salary over time have been based on the CDYSB Salary Scale referred to in her contract of employment. Increments are not guaranteed on an annual basis and can only be given if sufficient funding is made available by funders. The 2010/2011 scale, which was the reference point for her starting salary in her contract, reaches the top of the scale at €40,138. The Complainant’s pay was increased as and when funding became available from €31,070 in 2013, to €46,203 in 2024, and on to €50,254 in January 2026.

It is deeply regrettable that the Complainant is of the belief that she has a shortfall in wages. The Respondent has at all times paid the Complainant in line with the resources available to them from funders. The Respondent does not have the financial resources from the SERDATF to pay the Complainant any more than her current salary.

4. The Applicable Law

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.

5. Deliberations

Section 5(6)(a) of the 1991 Act provides that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction.  Consequently, the first matter for the Court to establish is the amount that was properly payable to the Complainant during the relevant period for the complaint. Having established that matter, the Court must then ascertain whether there was a shortfall in the proper payment and, if that was the case, whether the shortfall arose for one of the reasons set out in section 5(1) above.

As the Complainant lodged her complaint under the Payment of Wages Act to the Workplace Relations Commission on 19 March 2024, the relevant period for consideration by the Court is confined to the six-month period prior to that date, which encompasses the period from 20 September 2023 to 19 March 2024.

“The gross salary payable is €31,070 as specified on the CDYSB Salary Scale (Point 2). Pay awards and increments are subject to finance being available from the SERDTF to fund the project. Salary payment will be monthly, by bank transfer.”

The Complainant contends that she has a contractual entitlement to receive incremental pay increases as set out in the CDYSB Youth Worker salary scale. Her position is that increments apply annually and as she accrued ten years’ service the amount properly payable to her during the relevant period is the top point of the Youth Worker scale, i.e. €52,272. 

In reply to questions from the Court, the Complainant’s representative accepts that the contract of employment does not contain an express provision which confers an entitlement to annual incremental pay increases. She submits that the Complainant’s entitlement to incremental pay increases is an implied term of her contract of employment linked to the availability of funding.

The Respondent submits that the Complainant’s contract does not expressly link her salary to the CDYSB Youth Worker salary scale and that increments are not guaranteed on an annual basis and can only be given if sufficient funding is made available by funders.

The Court finds that the contract of employment establishes the wages properly payable to the Complainant to be Point 2 of the relevant CDYSB salary scale. The contract expressly states that any increments awarded are conditional on available finance. As a result, the Court finds that the Complainant cannot rely on the contract terms to assert an automatic entitlement to annual increments awarded as part of the CDYSB Youth Worker Salary Scale.  Neither can the Complainant rely on those terms to say that the amount properly payable to her for the relevant period was €52,272, which was the top point of the Youth Worker salary scale at that time. 

To stand up a complaint under the Act, a Complainant must establish what wages are properly payable in the relevant period. On the facts as presented, the Complainant has failed to make out a case that she is entitled to be paid at the top point of the Youth Worker salary scale, €52,272.

Finding

For the reasons set out above, the Court finds that the Complainant has failed to make out a case that she suffered an unlawful deduction from her wages during the relevant period for the complaint.

Accordingly, the Court finds that the complaint is not well founded.

The decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
20th March 2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Therese Hickey, Court Secretary.