Introduction
In Joseph Kelly v KDK Scaffolding Limited (ADJ-00037787), it was held that the imposition of one day’s suspension without pay, without any authorisation provided for in the contract or company handbook, amounted to a breach of Section 5 of the Payment of Wages Act, 1991.
Background
The respondent admitted that the Complainant was not paid his wages for the 03 March 2022 however it submitted that it was a lawful deduction. The respondent’s representative made reference to S.I. No. 146/2000 – Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 and submitted that Section 10 provides that disciplinary action may include suspension without pay and Section 11 which provides that there may be instances where more serious action, including dismissal, is warranted at an earlier stage.
Reference was also made to the respondent’s disciplinary procedures. It was submitted that the respondent invoked fair procedures in accordance with its disciplinary procedure and that the complainant received a first written warning for what the respondent described as “numerous well founded allegations to which [the complainant] admitted to doing” and that the escalation of adding a one-day’s suspension without pay was to highlight the severity of the complainant’s conduct without providing a final written warning for four upheld allegations. However, there was no term or provision for unpaid suspension deductions from the wages of the complainant in his contract of employment.
Due to its brevity it is worth including the contents of the entirety of the respondent’s disciplinary procedure hereunder:
“Dismissal Procedures / Disciplinary Rules
The terms of the Redundancy Payments Acts, Minimum Notice and Terms of Employment Act 1973, Organisation of Working Time Act and the Unfair Dismissals Act 1977/1993 will be observed. In cases of unsatisfactory conduct or work performance, the following steps will be taken:
a) Verbal Warning
b) Written Warning
c) Final written warning and/or suspension without pay
d) Dismissal
Gross misconduct may lead to instant dismissal, without notice or written warnings.
Some Examples of Gross Misconduct :-
– theft or any other indictable offence
– falsification of records
– malicious damage
– physical violence
– provoking or threatening behaviour or instigating a fight
– contravention of safety regulations
– any other serious act of wilful misconduct
The company acknowledges the right of any employee to be accompanied by a trade union representative, shop steward or colleague. Representation by any other party is not permitted. The company also acknowledges the right of any employee to appeal against any disciplinary action taken against him/her.
No industrial action of any kind may be taken until such time as the disputes procedure has been exhausted and then only after the requirements of the Industrial Relations Act 1990 have been met. Failure to comply with this condition will be considered a serious breach of your contract of employment and may result in your dismissal.”
It is apparent from the foregoing, and in particular the steps at a), b), c) and d) above, that whilst the respondent’s disciplinary procedures provide for suspension without pay at step c), such a sanction is only prescribed to be in addition to or as an alternative to a final written warning.
The Adjudication Officer found that the only reference to suspension without pay was in the respondent’s disciplinary procedure however the said procedures do not provide for unpaid suspension deduction from wages where the suspension without pay arises in conjunction with a first written warning as arose in instant case.
Redress
Redress is provided for in Section 6(1) of the 1991 Act as follows:
6(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— (a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.
The complainant was therefore entitled to compensation of €176.92 being the equivalent to 1 days wages.
