FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : AN GARDA SIOCHANA (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - THOMAS MORAN DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer Decision No: ADJ-00009942 CA-00011203-001
BACKGROUND:
2. The Worker appealed the decision of the Adjudication Officer under the Payment of Wages Act 1991 on 5 March 2018. A Labour Court hearing took place on 15 June 2018. The following is the Determination of the Court:
DETERMINATION:
This case concerns an Appeal by Thomas Moran (the Appellant), who was a member of An Garda Siochana at the material time, of a decision of an Adjudication Officer in his complaint against An Garda Siochana and Department of Justice (the Respondent) made under the Payment of Wages Act, 1991 (the Act). The Adjudication Officer decided that the complaint was not well founded.
The complaint was made to the Workplace Relations Commission on 9thMay 2017 and consequently the cognisable period for the within appeal is the period from 10thNovember 2016 to 9thMay 2017.
At its hearing the Court proposed that the comprehensive submissions of the parties would be taken as read by the Court. Both parties were agreeable to this approach to the hearing.
Summary position of the Appellant
The Appellant contends that he should have been in receipt on a Gaeltacht Allowance during his service in Clifden Garda station in 1984. He contends that, were he to have been in receipt of the allowance at that time he would have received is also on his assignment to Oranmore in 2014. He contends that the fault for his non-receipt of the allowance in 1984 rested upon the Respondent. He further contends that the failure of the Respondent to pay the allowance to him while in Oranmore was a result of the initial failure of the Respondent in 1984.
The Appellant acknowledges that a Government decision of September 2012, which had effect from January 2012, abolished the Gaeltacht Allowance for new beneficiaries. He submitted that he should have been in receipt of the Allowance in 1984 and, albeit he never received the allowance prior to the Government decision of 2012, he was entitled to have received it prior to that date and consequently could not be regarded as a new beneficiary within the meaning of the Government decision of 2012.
He submitted that a decision of the Respondent to allow payment of an allowance to Sergeant exam candidates after January 2012 meant that the Respondent had breached the terms of the Government decision in that case and consequently should have breached the decision in his case.
On that basis the Appellant contends that the allowance was properly payable to him during the cognisable period for this complaint and that the Respondent’s failure to make that payment to him constitutes a breach of the Act.
Summary position of the Respondent
The Respondent submitted that events of 1984 were outside the jurisdiction of the Court under the Act. Notwithstanding that, the Respondent contended that any failure to initiate an application for the Gaeltacht allowance for the Appellant in 1984 was the responsibility of the Appellant. The Respondent accepted that an application, were it to have been made in 1984, would have been successful.
The Respondent submitted that, following the Government decision of 2012, no capacity existed to afford the Gaeltacht allowance to the Appellant because he would be a new beneficiary in consequence of him never having been a beneficiary prior to the date of effect of the Government decision. Consequently, the allowance could not be contended to be properly payable to the Appellant at the material time.
The Respondent submitted that the payment of an allowance to candidates for the Sergeant exam following the Government decision was a result of a further decision of the Department of Public Expenditure and Reform following a process of submission and the making of a case in the particular circumstances of that matter. That decision related to the particular circumstances of that matter and reflected the submissions made in that regard.
The Respondent submitted that no breach of the Act had occurred in the cognisable period for the within complaint.
The Law
The contention of the Appellant is that an allowance properly due to him was not paid and that this failure constituted a deduction in accordance with Section 5 of the Act. 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,
- (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
Discussion and conclusions
The Court has given careful consideration to the written and oral submissions of the parties.
In order for the Court to find that the non-payment of a Gaeltacht Allowance to the Appellant in the cognisable period constituted a breach of the Act the Court must first find that the Allowance was properly payable to the Appellant in the period.
It is common case that the payment of a Gaeltacht Allowance requires a process of application. The parties disagree as to whose responsibility it is to initiate such an application process. It is common case however that no application for the Gaeltacht Allowance was made on the Appellant’s behalf in 1984 or prior to the Government decision of 2012.
It is also common case that the Appellant was not a beneficiary of the Allowance prior to the Government decision.
It is common case that a case was made to Department of Public Expenditure and Reform for the payment of an allowance to candidates in a Sergeant exam following the date of effect of the Government decision. No such case was made in respect of the Appellant’s service in 1984 in a qualifying Gaeltacht area.
The Court finds that the entitlement of the Appellant to receive the Gaeltacht Allowance in the cognisable period for the within complaint is dependent on the terms and conditions of employment applicable to him at that time. Applicable Government decisions governing terms and conditions of employment of public servants including An Garda Siochana contribute to the framework which established the terms and conditions of employment of the Appellant during the cognisable period for the within complaint.
The Court finds that the Government decision of 2012 cannot be interpreted as meaning that a person who had not previously been a beneficiary of the abolished allowance could be regarded as other than a new beneficiary within the meaning of that decision. It is clear, on the basis of the experience of the Sergeant exam candidates, that entitlement to an allowance following the Government decision could be established by a process of engagement with Department of Public Expenditure and Reform. No such process has resulted in a decision of Department of Public Expenditure and Reform that the Appellant should not be regarded as a new beneficiary of the Gaeltacht Allowance within the meaning of the Government decision. In the absence of any such decision from the Department of Public Expenditure and Reform the Court must conclude that the terms and conditions of employment of the Appellant at the material time were governed by the terms of the Government decision as written and having effect at that time.
The Court finds that, consequent on the Government decision of 2012 if for no other reason, no entitlement to the Gaeltacht Allowance applied to the Appellant in the cognisable period for the within complaint. That being the case, the allowance was not properly payable to the Appellant during that period and consequently any failure to pay the Allowance during that period cannot be found to be a breach of the Act at Section 5.
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 decision of the Adjudication Officer is affirmed.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
JD______________________
18 June 2018Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.