PWD2627

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00056016 (CA-00068223-001)

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. 

The following is the Court's Decision:

DECISION:

1. Appeal Details

This is an appeal by Unity Healthcare Service Limited against a Decision of an Adjudication Officer (ADJ-00056016/CA-00068223-001) made under the Payment of Wages Act, 1991 (the Act) in a complaint by Ms Silibaziso Nondo. The Adjudication Officer’s decision, dated 24 March 2026, found the complaint to be well founded and directed payment of €30,420 to Ms Nondo, subject to taxation and statutory deductions.

For ease, the parties are referred to in the same way as at first instance. Ms Silibaziso is therefore referred to as “the Complainant” and Unity Healthcare Service Limited as “the Respondent”.

A hearing of the Court was held on 28 August 2026 in Dublin. The Complainant was represented at the hearing by Mr Paul D Maier BL instructed by DJM Legal and the Migrant Rights Centre of Ireland (MRCI). The Respondent was represented by its Director of Operations, Mr Velani Bruce Magama.

Written submissions were received in advance from both parties in advance of the hearing. Both the Complainant and Mr Magama gave evidence on affirmation and were both subject to cross examination.

2. Summary of the Complainant’s Submission

The Complainant, a Zimbabwean national, submitted that she had applied for a support worker position with the Respondent in 2022, having become aware of the Respondent through a friend. The Complainant was invited for interview in 2022 and shortly thereafter informed that her application was successful. Having accepted the job offer the Complainant’s son made a payment to a Director of the Respondent in respect of fees to cover her accommodation and employment permit fee. On 4 October 2023, the Complainant was issued a work permit by the Department of Enterprise, Trade and Employment, for employment with the Respondent with effect from 1 November 2023. The Complainant subsequently applied for a travel visa to Ireland and arrived in Ireland on 19 February 2024. Having informed the Respondent of her arrival in Ireland she made several attempts to contact the Respondent to obtain details of her hours of work to no avail.

The Complainant seeks payment of her wages which were properly payable to her for the period from 19 June 2024 to 19 December 2024, representing an underpayment of €15,268.50. Because of the effect on her, and in reliance on section 6(1)(a) of the Act, the Complainant asks the Court to exercise its maximum jurisdiction in awarding twice the amount of the underpayment, totalling €30,537.00.

3. Summary of the Complainant’s Evidence

The Complainant’s evidence was that she had applied for the position of support worker with the Respondent and had been successful at interview. She received an offer letter and a contract of employment which she signed and dated 23 August 2023. She said she undertook online training including Children First training in 2023. The Complainant’s evidence was that she expected to start employment with the Respondent on 1 November 2023 which was the start date in the contract and the applicable start date of her work permit. The Complainant said that her son paid the Respondent €2,000 towards her work permit and accommodation and provided documentary evidence of this payment. The Complainant said that she spoke with a Director of the Respondent who approved her travelling to Ireland. She said that she arrived in Ireland on 19 February 2024 and informed the Respondent of her arrival. She said she received the response “OK”, after the second or third message sent.

The Complainant said that she tried to communicate with the Respondent to arrange commencement of employment but got no response. She was never provided with work by the Respondent. The Complainant said that she had received payment of €300 towards her upkeep from the Respondent and €100 towards medication costs but had not received any wages.

The Complainant lived with her son. She said she waited three months to hear from the Respondent before seeking alternative employment gaining full-time employment from 20 May 2024 with Embrace Community Services. The Complainant said that she received no communication from the Respondent ending her employment. The Complainant described the impact of the Respondent’s failure to pay her wages and employ her was that she was “frustrated big time”, she felt ignored and her health was affected. She said that the Respondent’s failure to answer her messages was very stressful for her.

In response to cross-examination, the Complainant said that she had read the contract of employment including the clause that provided for layoff where there was a shortage of work or financial disruption. She said that it was never communicated to her that she was being laid off. The Complainant denied working for her son’s company. The Complainant said that she never visited, nor was invited to visit, the Respondent’s premises in Cavan. The Complainant said she was never told not to come to Ireland. The Complainant confirmed that she was told, when she enquired about travelling to Ireland, that the centre in Cavan was not yet open, and that she had confirmed to the Respondent that she would stay with her son until work became available. She denied that she travelled to be with her son after the stress of losing her husband, saying that she travelled to take up employment with the Respondent. She said that she thought by coming the Respondent would feel sorry for her and give her work.

In answer to questions from the Court the Complainant said that she was issued with a new contract in or around the time she travelled to Ireland, in February 2024, but she could not recall the start date of that contract. She said that the terms were the same, as the August 2023 contract, other than the start date and citing the place of work as Cavan. When asked how much she expected to be paid by the Respondent she said she thought €520 per week for 39 hours work.

4. Summary Submission of the Respondent

The Respondent submitted that it was a company which obtains contracts from Tusla in relation to emergency residential care of under 18s in Tusla’s care. The Complainant contacted the Respondent during a recruitment fair and based on her qualifications and references she was offered a conditional contract of employment. Conditions which attached to successful completion of the recruitment stage included the Complainant paying for her work permit, accommodation and travel to Ireland. The Respondent maintained that contracts provided to the Complainant were purely for the purposes of obtaining her work permit and travel documents but did not provide a commitment to provide work at that time.

The Respondent’s position was that the Complainant’s contract of employment was conditional on the opening of the Cavan centre and fulfilling the Irish requirements for working with vulnerable individuals. The Respondent informed the Complainant not to travel to Ireland as the compliance stage with Tusla was not completed. The Respondent said that usually a new contract of employment would issue with a start date but that same was not provided to the Complainant because there was no work available. The Respondent’s position was that there was no work available for the Complainant as approval had not been granted by Tusla and none of the pre-qualifying certification and skills, for working with vulnerable individuals in Ireland, had been obtained by the Complainant. The Respondent maintained that the Complainant had been working for Embrace Healthcare since her arrival in Ireland and that she did so on the work permit obtained in the name of the Respondent.

The Respondent said that the Complainant travelled for the purpose of a family reunion and to avoid her work permit being cancelled despite there being no work for her with the Respondent. The Respondent relied on a clause in the contract that permitted lay-off during periods of financial disruption and/or work shortages. The Respondent said the Complainant was informed the Respondent would not be proceeding with her employment once Tusla discontinued its relationship with it. The Respondent channelled other employees to roles with other companies but said that the Complainant was not interested as she had already reported the Respondent to the WRC and was working elsewhere with Embrace.

Mr Magama said that the Respondent acted in good faith in wanting the Complainant to work for it. He said that it was unforeseen that they would lose the Tusla contract. He said that the company was no longer operating or functioning, and that he too had lost money and did not have the role he intended. He asked the Court to take that into account.

5. Summary of the Respondent’s Evidence

Mr Magama (the witness) gave evidence that the August 2023 contract of employment was issued for the purpose of obtaining a work permit for the Complainant. A further contract issued, in February 2024, for the purpose of obtaining travel documentation for her. Upon arrival in Ireland the Complainant would be required to undergo a range of processes, including garda vetting, before she would be able to take up employment. The Complainant was advised not to travel and when she did anyway she was informed that the centre had not yet been approved and no work was available. The witness said that it was expected that operations would commence from 28 July 2024 with core staff undergoing the relevant training but that the Respondent lost its contract with Tusla in October 2024. The Respondent’s position was that it did not have any work to provide the Complainant.

In cross examination the witness said that the arrangements made regarding work permits and payment for same were not unlawful, that they evidenced the Respondent assisting the Complainant with the process. The witness accepted that the February 2024 contract did not say it was for travelling purposes and that it had location of work and a start date. The witness said the Respondent paid the Complainant €400 for expenses to help her with issues but that it had not started operations at that time. The witness confirmed that the Complainant’s remuneration was to be €585 per week but pointed out that the payment was wages for when a person performed the physical work which the Complainant did not do. The witness confirmed that the notification of work shortage was not given in writing but was done by telling the Complainant that the Respondent did not have a centre. The witness agreed that the Complainant was not informed of the loss of the Tusla contract which he said arose in circumstances where she had brought her case to the Workplace Relations Commission (WRC), albeit accepting that the case was not initiated until December 2024 when the contract was lost in October 2024. The witness said that the Complainant was not part of the core team who would be initially assigned to commence the operation of the centre.

6. Relevant Legislation

Section 5 of the Act provides that:

“(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 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 interpretation section of the Act (section 1(1)), sets out definitions of “employee”, “employer” and “wages”, the relevant elements of which are set out below.

“Employee” is defined as meaning: “a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer, …”

Employer, in relation to an employee, means: “the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment”.

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 …”

7. Deliberations

In claims under the Act, the first matter for the Court to determine, before assessing if a contravention of the Act has occurred, is to establish what wages are properly payable under the contract of employment. This was the principle established by the High Court in Balans v Tesco Ireland Limited [2020] 31 ELR 125.

Almost every aspect of the evidence in the case was disputed between the parties, including: what were the applicable contracts governing the relationship, the validity of same, the intention and purpose of the contracts, whether the contracts were ever activated, the applicable rate of pay, whether the Complainant travelled for her own reasons or to take up employment, whether she was ever directed not to travel, and whether the Complainant was laid off. The Court is not required to resolve the disputed evidence where what was not disputed was the Complainant’s evidence that she took up employment on a full-time basis with another employer with effect from 20 May 2024. The Court is satisfied therefore that any contract of employment which may have existed between the Complainant and the Respondent came to an end on 20 May 2024, at the latest.

On the Complainant’s account, there can have been no wages properly payable to her by the Respondent from 20 May 2024 onward. It follows therefore that there cannot have been any non-payment of wages or deductions from wages after 20 May 2024. The Complainant’s complaint under the Act was submitted to the WRC on 19 December 2024. This means that the cognisable period for consideration by the Court was from 20 June 2024 to 19 December 2024. The Complainant’s contract of employment with the Respondent had already ended before the cognisable period commenced.

8. Decision

On the basis of the evidence adduced by the Complainant the Court finds that there was no breach, by the Respondent, of section 5 of the Act in respect of the Complainant in circumstances where there were no wages properly payable to the Complainant, and by extension no examples of non-payment of wages or deductions from the Complainant’s wages, during the cognisable period.

The Court sets aside the decision of the Adjudication Officer, dated 24 March 2026, bearing Adjudication Reference No. ADJ-00056016 and Complaint Reference No. CA-00068223-001.

The Court so decides.

	Signed on behalf of the Labour Court
	Niamh McGowan
AL	______________________
22/09/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be in writing and addressed to Ms Amy Leonard, Court Secretary.