This case was an appeal brought by the Complainant to the Labour Court against the Adjudication Officer’s decision which found that there had not been an unlawful deduction of wages under the terms of the Payment of Wages Act. The Complainant was a Personnel Manager in one of the Respondent’s stores.

The Complainant was working in the Respondent’s store in a certain location. In 2014, the Respondent undertook a re-organisation, as a result of which it identified a need for fewer roles for Personnel Managers. Various options were offered to existing Personnel Managers including, for a limited period, the option of voluntary severance. The Complainant was not interested in voluntary severance on the terms offered. A dispute then arose between the parties regarding the terms of the Complainant’s contract. Subsequently,  the Complainant initiated the company’s Grievance Procedure. After some initial activity, the grievance procedure was not progressed, as the Complainant went on extended sick leave from March 2015 as a result of alleged stress/stress at work.

When the Complainant was medically certified as fit to return to work after August 2016, the Respondent refused to allow the Complainant to return to work, reasoning that the Complainant’s non co-operation with its back to work protocols as she continued to refuse to support store ‘Y’ and, as a result, she continued not to be paid.

The Complainant claimed that her wages properly payable to her were unlawfully deducted by her employer. She had, on a number of occasions, advised the Respondent that she was fit, able and ready for work. Despite the legal obligation on the Respondent, they failed to provide her with work and failed, refused or neglected to pay her for those periods when she was fit and available. This amounted to an unlawful deduction of the Complainant’s wages.

The Respondent asserted that they did not have a contractual entitlement to pay the Complainant during the period of absence as she had exhausted her contractual entitlements. The Respondent argued that the Complainant chose not to return to work and to comply with what she was reasonably required to do.

The Court noted that it was clear from the submission made to the Court that the Respondent was unwilling to allow the Complainant to return to work until she was willing to comply with what the Respondent believed to be the terms of her contractual obligations in respect of taking on responsibilities in store ‘Y’ and that this was the main requirement before the Respondent was willing to facilitate a return to work.

The Court opined that The Payment of Wages Act did not permit an employer to use a refusal to pay wages that are properly payable within the meaning of the Act as leverage in a contractual dispute, unless the worker is acting contrary to the terms of their contract or there is a statutory basis for doing so:

"...until such time as a contract is terminated, its terms subsist and either party is entitled to rely on it... In the instant case, the Respondent was entitled to seek the agreement of the Complainant to vary the terms of her contract. However, in the absence of her agreement to do so, they were obliged to honour that contract for as long as it subsisted."

Therefore, the Court ordered that the sum of €12,943 be paid to the Complainant as this was the total amount which had been unlawfully deducted. The Decision of the Adjudication Officer was overturned and the Complainant’s appeal succeeded.
https://www.workplacerelations.ie/en/cases/2020/september/pwd2024.html