PWD1645

The Law

The central contention made by the Appellant is that wages properly due to him were not paid and that this failure constituted a deduction in accordance with Section 5 of the Act. The Appellant contends that, as set out in the Act at Section 5(6)(a), the wages paid to him were less than the wages that were properly payable to him. The Appellant further contends that this deduction was unlawful having regard to Section 5 of the Act.

The Act at Section 5(6) provides as follows:

5(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.

The Court decided to consider as a preliminary issue the question of how wages become properly payable to a civil servant in the Respondent Department.

The Court noted that the parties in their submissions had, inter alia, addressed issues related to time limits and as regards the duties carried out by the Appellant relative to other grades in the Department. The Court however decided to consider the preliminary issue outlined above on the basis that the Court’s finding as to whether the contended for wages are properly payable to the Appellant has the potential to be determinative of the case.

The parties accepted the decision of the Court as regards this approach and consequently made submissions to the Court as regards the mechanisms undertaken or employed to assign a rate of pay or a grade to a civil servant in the Respondent Department.

The parties in their submissions disagreed as regards the range of mechanisms available to the Respondent Department to award ‘acting up allowances’ or ‘higher duty allowances’. It is common case however that a procedure has to be followed by the Department in order to apply a rate of pay, award a grade or assign an acting up / higher duty allowance to a person in the position of the Appellant. It was also common case that the application of any grade or allowance following the execution of that procedure requires the sanction of the Department of Public Expenditure and Reform. Finally, it was common case that at no time was any available procedure followed in relation to the Appellant in order to secure for him a higher grade or an acting up / higher duty allowance. The Respondent asserted that at no time has sanction been received from the Department of Public Expenditure and Reform for the application of a higher rate of pay, the award of a higher grade or the assignment of an allowance to the Appellant.

The issue to be decided by the Court in this preliminary matter is whether, at the material time, a rate of pay was properly payable to the Appellant higher than that which was actually paid to him. If no such rate of pay was properly payable to the Appellant at the material time then the Act at Section 5(6) can have no application insofar as the pay received by the Appellant was in accord with that which was properly payable to him.

The Court finds that no procedure was followed by the Department which would create a rate of pay properly payable to the Appellant other than that which he did receive at the material time. The Court finds that the Appellant was not at any time assigned an acting up/higher duty allowance, awarded a grade other than that of Clerical Officer in the Respondent Department or otherwise had a higher rate of pay applied to him.

Determination

The Court determines that the total amount of any wages paid to the Appellant at the material time was not less than the amount properly payable to him throughout that period. The Appeal therefore cannot succeed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CR______________________
20th December, 2016Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.