ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00009890

Parties:

Complainant      Anonymised Parties    Respondent

A Technician                                        A Government Minister and Department  

Representatives

Self-Represented                                C Maguire BL instructed by Office of the Chief State Solicitor

Complaint(s):

Act                 Complaint/Dispute Reference No.                  Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00012951-001 03/08/2017  

Date of Adjudication Hearing: 08/11/2017 Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act and Section 6 of the Payment of Wages Act, 1991 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).  

Background:

The case concerns a Salary deduction in the Defence Forces.

1:        Summary of Complainant’s Case:

The Complainant is a serving member of the Irish Defence Forces. By Regulation DFR S3 Para 34 he is deducted 30 Cents a week for         

I.            The Expenses of Haircutting       

II.            Administrative Expenses connected with personal laundry services     

III.            The provision of sports equipment and other such articles and services as may be provided for his welfare, recreation and comfort.

The Complainant “lives out” of the Military Barracks and has no opportunity to avail of any of the above services. Accordingly, the deduction is in Breach of the Payment of Wages Act ,1991 Section 5(b) as the Complainant, while paying the deduction receives nothing in return. It is accordingly illegal.  

2:        Summary of Respondent’s Case:

The Claimant is a member of the Defence Forces of the Irish State. His remuneration is governed by defence Forces Regulations (DFR) S3 made under the Defence Act 1954. The deductions in contention are made under Para 34 of DFR S3. Accordingly, the Deductions are required or authorised to be made by virtue of an instrument made under statute, as contemplated by Section 5(1)(a) of the 1991 Payment of Wages Act. Accordingly, on this ground alone the claim cannot proceed as the Adjudication Officer does not have jurisdiction to hear the Complaint. Notwithstanding the above legal point the Funds garnered by the Deductions are used for a wide variety of Welfare and Recreational purpose in the Defence Forces. It was accepted that Haircutting was no longer widely available but that the Fund had effectively evolved over time (it’s origin dates back to the 1930s and before) into a General Welfare and Recreational Fund. The Complainant has been the beneficiary of these funds, either directly or indirectly, on many occasions. Numerous examples of the use of the Funds were cited.    

3:        Findings and Conclusions:

3:1     The Legal basis. Section 5 (1) of the Payment of Wages Act, 1991 is quoted below. Regulation of certain deductions made and payments received by employers. 55.— (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,  

The Deduction in question is made under (DFR) S3 Para 34 which is made under the Defence Act 1954.   It follows that it is encompassed by the terms of Section 5 – (1) quoted above.   Accordingly, the issue is not one over which an Adjudication Officer has jurisdiction and the claim must fail on this basis.      

4:        Decision:

Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.  

ActComplaint/Dispute Reference No.Summary decision / Refer to Section 3 above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00012951-001 Claim is dismissed as under Section 5 – (1) of the Payment of Wages Act, 1991 the claim cannot proceed.  

Dated:   8th January 2018 Workplace Relations Commission Adjudication Officer: Michael McEntee

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