PWD1910

The Adjudication Officer issued his decision on 20^thSeptember 2018. The Complainant made the within appeal on 16^thOctober 2018.

Background

The Appellant commenced employment with the Respondent in October 2006. The Respondent maintains a roster of workers who are ‘on call’ on a rotational basis to attend the site outside of normal hours in the event of an occurrence requiring unanticipated attendance. The Appellant was placed on that roster on 4^thSeptember 2017. The Respondent advised the Appellant on 8^thSeptember 2017 that he would not continue as a member of the ‘on call’ roster.

Preliminary matter

The Respondent submitted that by operation of the Payment of Wages Act, 1991 at Section 7(2) the within appeal cannot proceed. The Act at Section 7(2), according to the Respondent, requires the Appellant to notify the Respondent of his appeal within a specified timeframe. The Appellant failed to so do and consequently the Court is deprived of jurisdiction. The Respondent made application to have the within appeal struck out on this basis.

Section 7(2) of the Act as enacted provided as follows:

• 7(2) An appeal under this section shall be initiated by a party by his giving, within 6 weeks of the date on which the decision to which it relates was communicated to him—
  • (a) a notice in writing to the Tribunal containing such particulars (if any) as may be specified in regulations under subsection (3) and stating the intention of the party concerned to appeal against the decision, and

Section 7(2) of the Act was repealed with the passing of the Workplace Relations Act, 2015.

The within appeal was made in accordance with the provisions of Section 44 of the Workplace Relations Act, 2015 which provide, in relevant part, as follows:

• 44(2) An appeal under this section shall be initiated by the party concerned giving a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court in accordance with rules under subsection (5) of section 20 of the Act of 1946 and stating that the party concerned is appealing the decision to which it relates.

  (3) Subject to subsection (4) , a notice under subsection (2) shall be given to the Labour Court not later than 42 days from the date of the decision concerned.

  (4) The Labour Court may direct that a notice under subsection (2) may be given to it after the expiration of the period specified in subsection (3) if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.

  (5) A copy of a notice under subsection (2) shall be given by the Labour Court to the other party concerned as soon as may be after the receipt of the notice by the Labour Court.

Summary position of the Appellant

The Appellant submitted that his contract of employment was altered by the Respondent when he was appointed to the ‘on call’ roster. The Appellant submitted that this alteration cannot be ‘reneged’ upon and consequently any failure to pay him an ‘on call’ roster allowance represents an unlawful deduction in the week in which that failure occurred.

Summary position of the Respondent

The Respondent submitted that placement on the ‘on call’ roster is a function of custom and practice and is based, by agreement with the trade union recognised for bargaining on site, on seniority. The Appellant could not be properly placed on the ‘on call’ roster having regard to those arrangements.

The Respondent submitted that the Appellant was paid the appropriate allowance in respect of the only week on which he was required to participate on the ‘on call’ roster and no failure to make that payment in respect of weeks where the Appellant was not part of the ‘on call’ roster can be found to be an unlawful deduction.

The Law

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

• “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.”

Discussion and conclusions

The matter before the Court turns on whether the ‘on call’ roster allowance at issue was properly payable to the Appellant within the meaning of the Act.

It is common case that the allowance is a payment additional to basic rates of pay for this class or grade of worker in this employment. It is also common case that the allowance is payable in respect of participation in a roster for on-call. Workers who are on a roster to be on-call, that is to say who are on a roster to be liable to be called in to work while rostered off duty, are paid an allowance in respect of their undertaking that liability on a rostered basis.

In this case the worker was, by agreement, required to undertake that liability for one week. At the end of that week, for reasons made clear to the Court, the employer removed from the Appellant the requirement to be ‘on-call’ on a rostered basis.

The Appellant has made extensive submissions as regards the reasons for the employer’s decision to cease the requirement upon the Appellant to be ‘on-call’ as part of a roster. Those reasons cannot be determinative of the within complaint in that the law makes no provision for exemption arising from motivation. The fact of the matter is that the employer did, after one week, remove from the Appellant the requirement to be on call as part of a roster.

The Court is satisfied that the payment at issue in the within matter derives from a requirement to be part of an ‘on-call’ roster and that no other basis for the payment exists. Neither party put before the Court the Appellant’s contract of employment or the terms of any collective agreement which also, apparently, comprise the Appellant’s contract of employment. No finding can therefore be made that the Appellant’s contract of employment conferred an entitlement to receive an ‘on call’ allowance notwithstanding that the Appellant was not required to be ‘on call’ as part of a roster.

The relevant matter in this case is that after one week there was no liability, contracted or otherwise, for the Appellant to participate on a roster of workers who would be liable to be called out by the employer while off duty.

The Court finds that participation on a roster for ‘on-call’ is a condition precedent in this employment for payment of the roster allowance. It follows therefore that in any week where the Appellant is not required to be a part of the ‘on-call’ roster the allowance is not properly payable to him within the meaning of the Act at Section 5(6)(a). It is common case that the Appellant was required for one week to be part of the ‘on-call’ roster and that he was paid the allowance that week. Therefore, having regard to act at Section 5(6)(a), this allowance was, apart from one week, not properly payable to the Appellant in the cognisable period for the within complaint and the appeal therefore must fail.

Determination

The Court determines that wherever it was not paid to him in the cognisable period for the within complaint the ‘on call’ allowance was not properly payable to the Appellant. Consequently, the non- payment of the allowance within that period did not constitute a deduction within the meaning of the Act at section 5(6).

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CC______________________
25 April 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.