PWD1619

The Complainant claims that the Respondent infringed the Act by withholding travel and subsistence expenses to which he was entitled under the relevant scheme in operation within the Council. He further claims that the respondent infringed the Act by withholding a long service increment from him for a six month period commencing 1 January 2014. The Respondent rejects both complaints.

The appeal was filed with the Court on 21 December 2015. The matter came before the Court on 14 April 2016.

Background

The Complainant has worked as an Executive Engineer since 2007. In 2012 he was transferred to the Environment Department. He submitted returns for his travel expenses for April, May August and September 2013. He claims that he did not receive payment for that travel. He further claims that he was due a long service increment with effect from 1 January 2014 which was not paid to him until after 30 June 2014. He submits that his contract of employment provides for the payment of the long service increment and that the withholding of it for the relevant six months period amounts to an unlawful deduction from his wages within the meaning of the Act.

The respondent submits that the Act expressly excludes travel and subsistence expenses from its remit and accordingly submits that the complaint is misconceived.

It further submits that payment of the long service allowance is not automatic and is contingent on an assessment and a decision by Management in each individual case. In this case it decided that it had good reason to withhold the payment for the impugned six month period. Thereafter it was applied in accordance with the terms of the scheme.

The Law

The Act in relevant part defines wages in the following terms

• “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
  (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

• 
  Provided however that the following payments shall not be regarded as wages for the purposes of this definition:
  (i) any payment in respect of expenses incurred by the employee in carrying out his employment,

• 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.
  (2) An employer shall not make a deduction from the wages of an employee in respect of—
  (a) any act or omission of the employee, or
  (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,
  unless—
  (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and
  (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and
  (iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—
  (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,
  (II) in any other case, notice in writing of the existence and effect of the term,
  and
  (iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and
  (v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and
  (vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is ofan amount not exceeding the cost to the employer of the goods or services, and
  (vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.
  (3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.
  (b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

In this case the Complainant seeks payment of travel and subsistence expenses incurred by him in the course of his employment. It is clear from the definition of wages above that such a claim does not come within the scope of the Act.

The Complainant further seeks payment of a long service increment that was withheld from him.

The Court finds that the payment of increments is subject to satisfactory service including performance, conduct and attendance. The Respondent carried out an increment review and decided that payment of the increment should be delayed for a period of six months.

Nothing in the Act prevents the Respondent from making a decision to delay payment of the allowance in accordance with the terms of the Complainant’s contract of employment.

Accordingly the Court finds that the Respondent did not infringe section 5 of the Act by withholding payment of the long service increment for a period of six months.

Determination

The decision of the Rights Commissioner is affirmed. The appeal is not allowed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
8th July 2016______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.