PWD2465

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037227 (CA-00048584-002)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court on 15th October 2024  in accordance with Section 44 of the Workplace Relations Act, 2015.  The following is the Court's Decision:-

DECISION:

This matter comes before the Court as an appeal by David Murphy (the Appellant) of a decision of an Adjudication Officer in his complaint against his employer Limerick City and County Council (the Respondent) made under the Payment of Wages Act, 1991. The Adjudication Officer decided that the complaint was not well founded.

Background

The Appellant is employed as a Supervisor Gardener with the Respondent. Certain events occurred in 2020, including the raising of a concern by an employee under the supervision of the Appellant, and a grievance raised by the Appellant against that employee. In addition, the Appellant was absent through illness from May 2020 to October 2020.

The role occupied by the Appellant required him to undertake 2.5 hours overtime per week on a Saturday. The requirement arose from the nature of the role carried out by the Appellant.

Upon the Appellant’s return to work in October 2020 it was agreed between him and the Respondent that he would move to a different role in a different location within the Respondent employment, albeit at the same grade he had occupied to that date. He continued to work overtime of 2.5 hours per week on a Saturday until December 2020. According to the Respondent the continued overtime work was permitted as a gesture of good will and was notified to him as such.

The new role occupied by the Appellant was not such as to require the job holder to carry out 2.5 hours overtime per week each Saturday. The Appellant has however worked occasional Saturday overtime in his new role.

The within complaint was made to the Workplace Relations Commission on 11th February 2022.

Summary submission of the Appellant

The Appellant was employed as an Acting Supervisor as a permanent appointment from 22nd December 2008. His hours of work were, according to his contract of employment, to be as stipulated by his supervisor. During the course of his employment, until in or around December 2020, he worked, inter alia, 2.5 hours overtime every Saturday which overtime was reckonable in terms of his pension.

Following a mediation process in 2020, it was agreed that the Appellant would, with effect from 8th October 2020, take up a new role in the same grade as he previously occupied. He was not notified either orally or in writing that his 2.5 hours weekend overtime would be withdrawn upon moving to his new role. He continued to work overtime until in or around December 2020 when his contractual entitlement to Saturday overtime was unlawfully withdrawn from him.

The within complaint is not restricted to the six months prior to the making of the within complaint on 11th February 2022 but extends beyond the making of the within complaint. This is so because the Appellant, in making his complaint, specified that his loss was ongoing at that time. The Oireachtas has explicitly provided a date from which time runs for the purposes of the Act but has not provided that a complaint presented for adjudication by the WRC is limited to contraventions up until the date of presentation of the complaint.  The within complaint relates to infringements of the law from 18th August 2021 to 2nd August 2023.

Circular letter 12/1991 of the Respondent deals with superannuation of overtime. The Respondent acknowledges that the Saturday overtime worked by the Appellant was reckonable for pension purposes in accordance with circular 12/1991. It therefore follows from the circular’s terms that the overtime was scheduled work attached to the Appellant’s office or employment. It was also an implied term of his contract of employment. It is an established principle that terms can be implied into a contract of employment by, inter alia, custom and practice, the law and the conduct of parties to an employment contract.

Payment of 2.5 hours of Saturday overtime to the Appellant per week was wages properly payable to the Appellant within the meaning of the Act and the failure to make this payment to him amounted to an unlawful deduction within the meaning of the Act.

Summary submission of the Respondent

Following various events, the Appellant was absent on sick leave from 28th May 2020 to 7th October 2020 inclusive. His period of absence was identified as work related. Having regard to medical advices, the Respondent engaged with the Appellant on his concerns, including as regards his request to be re-assigned on his return to work to another role in the Respondent employment. The Respondent took on board a suggestion from him that he be given responsibility for trees across the local authority area. It was subsequently agreed that he would assume responsibility for Open Space Management, grass cutting, Playgrounds and an advisory role on tress on his return to work.

The Appellant accepts that he was informed by the Respondent on 10th October 2020 that there was a change to his overtime. He accepts that he was told that he would retain the overtime as a goodwill gesture for a short period and that, in December 2020, he was advised that he was no longer required to work overtime.

Overtime is not an entitlement of workers in the Respondent’s employment. It is inconceivable that the Respondent should pay overtime to a worker when overtime is not operationally required. The Appellant’s contract of employment does not provide for the payment of overtime, and he is not entitled to overtime when there is no business need. His work arrangements following on from his change of role do not require the working of overtime by him each Saturday.

The Appellant was, in the six months prior to the making of the within complaint, paid fully in accordance with the duties he undertakes in the employment and his wages fully reflected the actual hours he worked in the period. The Appellant worked no overtime for which he was not paid.

The Appellant appears to contend that he should be paid for overtime regardless of whether he works it or not and that contention brings the within complaint outside the provisions of the Act. This is so because there is no entitlement on the part of the Appellant to be paid overtime payments regardless of whether he works overtime or not. It is not for the Court, when exercising its jurisdiction under the Act, to decide whether an employee has an entitlement to work overtime. The jurisdiction under the Act is to deal with deductions / non-payment for overtime actually worked.

The Council has been reasonable in the manner in which the Appellant was assigned to a new role in October 2020.Contractual obligations were upheld, and the Appellant was a willing contributor to the identification of duties which were assigned to him following his return to work on 8th October 2020.

The within complaint is, according to the Act and the Workplace Relations act, 2015 (the Act of 2015) confined to alleged breaches of the legislation which are contended by the Appellant to have occurred in the six months prior to the making of the complaint. There is no statutory provision which gives jurisdiction to the Court to consider ‘ongoing claims’ including those which occur after the making of a complaint to the Workplace Relations Commission of a breach of the statute. In the within matter, the Court is bound under statute to consider only perceived deductions made within a six-month period between 12th August 2021 and the making of the within complaint on 11th February 2022.

The Law

The Act at Section 5(1) 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.

Section 5(6) of the Act provides:

(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.

Discussion and conclusions

The High Court, in Marek Balans v Tesco Ireland Limited [2020] IEHC 55, made clear that this Court, when considering a complaint under the Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made from the wages properly payable on the occasion, the Court would then consider whether that deduction was lawful.

In the appeal before the Court there is no submission made that the Respondent failed to make payment at the appropriate rates for any and all overtime actually worked by the Appellant at any material time. The Appellant contends that he held a contractual entitlement to work overtime for 2.5 hours each Saturday prior to his change of role in October 2020. He has submitted that his contract of employment asserts that his normal hours of work would be 39 hours over a five-day week and that hours of work would be as stipulated by his supervisor.

There is no dispute between the parties that all overtime worked by the Appellant prior to his take up of a new role in October 2020 was operationally required by the role he carried out up to that date. There is no dispute that the role to which he was assigned by agreement on 8th October 2020 carries no operational requirement for the role holder to work overtime for 2.5 hours each Saturday.

There is no submission made to the Court that the Appellant held a contractual entitlement to be paid in respect of overtime working on occasions when he worked no overtime hours. Rather, the Appellant contends that he held a contractual entitlement to be required to work overtime for 2.5 hours each Saturday. The Respondent disputes that any such contractual entitlement existed at any time but agrees that the Appellant was consistently required, as a result of the nature of the role he carried out up to 8th October 2020, to work overtime for 2.5 hours each Saturday.

The Court concludes that the within complaint concerns a contention that the worker held a contractual entitlement to be required to work overtime each Saturday rather than a contention that he held a contractual or other entitlement to be paid overtime pay each week whether he worked overtime hours or not. The complaint therefore concerns an alleged obligation resting upon the Respondent to require the Appellant to work overtime rather than any contention that the employer failed to pay the wages properly payable to him in respect of hours actually worked.

It is common case that overtime payment in the employment arises when overtime hours are actually worked. It is also common case that the worker received payment at appropriate rates for all hours actually worked by him, including overtime hours, at all times contended to be material to the within complaint.

The Court concludes therefore that the worker was, at all material times, paid the wages which were properly payable to him on the occasion.

The Court therefore concludes that no deduction was made from the wages of the worker on any occasion material to the within complaint.

Having reached that conclusion, the Court is not required to address disputation between the parties as regards the cognisable period for the within complaint or whether the worker held a contractual or other entitlement to be required to work overtime of 2.5 hours per week. The issue before the Court arises solely under the jurisdiction given to the Court by the provisions of the Act and relates to the wages properly payable to the Appellant on any material occasion.

Decision

The Court concludes that the worker was in receipt at all material times of the wages which were properly payable to him.

The within appeal must consequently fail.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
2nd December 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.