PWD183

FULL RECOMMENDATION

PW/17/59

DETERMINATIONNO.PWD183

ADJ-00005023 CA-00004967-001

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

PARTIES :

INTERNATIONAL FIRE INVESTIGATORS & CONSULTANTS LTD
T/A IFIC FORENSICS
(REPRESENTED BY PENINSULA IRELAND)

- AND -

MAURICE DALLAGHAN
(REPRESENTED BY CONAL DEVINE AND ASSOCIATES LIMITED)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Treacy

SUBJECT:
1. An appeal of an Adjudication Officer's Decision no: ADJ-00005023.

BACKGROUND:

2. This is an appeal of an Adjudication Officer’s Decision no ADJ-00005023 made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 19 January 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DETERMINATION:

This is an appeal by International Fire Investigators & Consultants Limited t/a IFIC Forensics against the Decision of an Adjudication Officer ADJ-00005023, CA-00004967-001, in a claim by Mr Maurice Dallaghan under the Payment of Wages Act 1991 (the 1991Act). In this Determination, International Fire Investigators & Consultants Limited t/a IFIC Forensics is referred to as “the Respondent” and Mr Maurice Dallaghan is referred to as “the Complainant”.

The Complainant referred his complaint under the Act to the Workplace Relations Commission (WRC) on 27^thMay 2016. In his complaint to the WRC, the Complainant alleged that the Respondent unlawfully deducted monies due to him.

Background

The Complainant commenced employment with the Respondent in April 2012 and tendered his resignation on 30^thSeptember 2015 to expire on 31^stDecember 2015. He was employed as a Senior Investigator for the Respondent who is an independent fire specialist providing advice and expertise to clients. The Complainant’s annual salary amounted to €78,000 per annum, giving him a daily rate of €300.00. When not on an inspection site the Complainant worked from home.

Position of the Parties

Mr Conal Devine, Conal Devine & Associates, on behalf of the Complainant submitted that the Respondent did not pay him €5,504.41 in respect of wages due. Included in the amount claimed was payment for the following:

6 Overnight Allowance payments;
5 days’ annual leave;
3 days’ sick leave;
2 days’ Time Off in Lieu (TOIL);
3.3 days for week commencing 5^thOctober;
2 days in respect of 14^th& 15^thOctober;
2 days in respect of 15^th& 17^thDecember; and
2 Public Holidays, 25^th& 26^thDecember 2015.

A claim for expenses was deemed by the Adjudication Officer as falling outside the statutory definition of wages and consequently was not covered by the terms of the Act. This decision was not on appeal before the Court.

The claim in respect of annual leave and public holidays was brought under the Organisation of Working Time Act, 1997. See Determination no DWT181 which found that the Complainant had received his full statutory annual leave under the Act, therefore that aspect of the claim was not well founded. The Court found in favour of his claim in respect of public holidays and awarded compensation under the 1997 Act. However, as the claim under the 1991 Act in respect of deductions in wages was for five days in excess of the statutory annual leave entitlement, the Court proceeded to consider that claim under the 1991 Act.

Ms Nora Cashe, Peninsula, on behalf of the Respondent contended that the Complainant was not entitled to recover the overnight allowance as this payment was not available for trips within Ireland or to the UK. She submitted that the Complainant did not work 3.3 days in the week commencing 5^thOctober 2015, as he failed to accrue billable hours for 27 hours. Payment which was made for these days in October were subsequently deducted from his final salary in December 2015. Ms Cashe also submitted that the Complainant failed to carry out work on 15^th& 17^thDecember 2015 as he failed to record any work on the Praxis logging system.

Findings of the Court

Overnight Allowance

As there was a conflict of evidence on the applicability of the Overnight Allowance in the circumstances claimed by the Complainant, the Court heard evidence from both parties on this issue.

Professor James Lygate, Principal Investigator and Chairman of International Fire Investigators & Consultants Limited t/a IFIC Forensics gave evidence on behalf of the Respondent. He said that he had a meeting with the Complainant in June 2103, where the Complainant sought an increase in his salary and an allowance to be paid when required to work away from home. Following that meeting, on 27^thJune 2015, Professor Lyngate sent the Complainant an email with details of his salary increase which stated the following: -

“In addition I have introduced an overnight allowance of €230 per night which will be paid on trips away of more than 2 nights’ duration where investigators are billing 10 hours or more per day. This allowance will be taken into account when calculating your bonus.”

Professor Lyngate explained that this allowance did not apply to trips within Ireland or the UK. He said that the Overnight Allowance was paid to the Complainant when he was working outside of Ireland or the UK, e.g. it was paid to him on those occasions when he was working in Denmark and Cyprus. The witness said that most of the company’s work was in Ireland and the UK, and he intended that the allowance would be paid on exceptional basis rather than the norm.

In his evidence to the Court, the Complainant said that it was his understanding that he was entitled to claim the Overnight Allowance as he was of the view that he had met the criteria for payment as set out in an email from the Respondent on 27^thJune 2013. He told the Court that it was his view that he was entitled to the allowance when he was working on a site in the UK in November 2015. He said that from reading the email he understood that once the two-day criteria and billable hours had been met the allowance was applicable for any work trips carried out away from home. He accepted that he had not received the allowance previously for work done in Ireland or the UK, however, he said that this was because he had not fully met the criteria before.

Findings of the Court

Overnight Allowance

The Court notes that the email dated 27th June 2013 makes no reference to the allowance being restricted to trips away outside of Ireland or the UK. The Court is of the view that the onus was on the decision maker and communicator of that new policy to ensure that there was no ambiguity in relaying the conditions attached to the introduction of the allowance. Where it was intended to apply in limited circumstances, it was incumbent on the Respondent to ensure that the message was accurately relayed to the Complainant. Therefore, the Court finds in favour of the Complainant’s claim for six payments of the overnight allowance. Accordingly, the Court awards the Complainant the sum of €1,380.00 in respect of the claim for payment of the Overnight Allowance.

Sick Pay, Annual Leave and TOIL

At the hearing before the Court, on examination of the case, it was accepted by Mr Devine that the Complainant was paid in full for his contractual sick leave entitlement and therefore there was no claim in respect of days when he was out sick and not paid. Furthermore, it was agreed by both parties that the outstanding annual leave (inclusive of the TOIL) due to the Complainant was three days and not seven. Therefore, the Court awards the Complainant the sum of €900.00 in respect of these claims.

3.3 days for week commencing 5^thOctober;

The Complainant was paid as normal for the week commencing 5^thOctober 2015, however, the Respondent later deemed that as he had not submitted billable hours for 27 hours equivalent to 3.3 days’ pay, that time was deducted from the Complainant’s salary in December 2015. The Complainant submitted that as administrative support was not available on those days he was not in a position to submit billable hours for those hours.

The Court is of the view that such a deduction was not warranted and was therefore an unlawful deduction within the meaning of Section 5 of the 1991 Act. The Court awards the Complainant pay for the three days in question, this amounts to a sum of €990.00.

2 days in respect of 14^th& 15^thOctober;

The Respondent submitted that it was an essential condition of the Complainant’s employment that he record work for each day. As no work was recorded for 14^th& 15^thOctober 2015, the salary paid to him at that time was subsequently deducted from his December salary. The Complainant said that as he had tendered his resignation on 30^thSeptember 2015, access to Praxis system was not always available to him. He said that it was not available to him on 14^th& 15^thOctober 2015.

The Court has not been provided with evidence to contradict the Complainant’s version of events, therefore the Court finds that the deduction made was an unlawful deduction within the meaning of Section 5 of the 1991 Act. The Court awards the Complainant pay for the two days in question, this amounts to a sum of €600.00.

2 days in respect of 15^th& 17^thDecember 2015

The Complainant stated that he was required to return items to the Company on 15^thDecember 2015, he said that he went to the Stores and met a Company representative on that day. The Complainant said that he carried out employment related tasks on 17^thDecember 2015. The Respondent submitted that as there were no entries on the Praxis system for those days therefore the Complainant did not work on those days and should not be paid.

The Court is satisfied that the Complainant was acting on company instructions and meeting Company representatives on the days in question therefore he was entitled to be paid for 15^thand 17^thDecember 2015. Therefore, the Court finds that the deduction made was an unlawful deduction within the meaning of Section 5 of the 1991 Act. The Court awards the Complainant pay for the two days in question, this amounts to a sum of €600.00.

Determination.

The Court is satisfied that a number of aspects of the complaints herein are well-founded, as outlined above. The Court orders the Respondent to pay the Complainant the sum of €4,470.00 in discharge of his claims under the 1991 Act.

Therefore, the Respondent’s appeal is disallowed and the Court varies the Adjudication Officer’s Decision accordingly.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
CR______________________
26 January, 2018Deputy Chairman

NOTE

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