Complainant

Respondent

Anonymised Parties

A Pilot

A Helicopter Service Provider

Representatives

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-00020847-001

29/07/2018

The Complainant commenced employment with the Respondent, a helicopter services company, on 20 August 2012. The Complainant is employed as a pilot (Captain).

The Complainant submitted a complaint under the Payment of Wages Act, 1991, on 27 July 2018, the basis of which is that his employer had made an unlawful deduction from his wages, in relation to over time and expense.

The Complainant stated that he submitted an overtime claim on 30 March 2018 in the sum of €4162.50. He claimed that this sum was calculated as per the current labour agreement document (PSA 3.1 .10) The Complainant submitted that this agreement provides that, where a pilot is required to relocate to or from another base, during roster time off, a half day’s payment shall apply in both directions.

According to the Complainant’s submission, his line manager did not agree with his claim of two payments of €277.50 each (totalling €555.00) for travelling home post shift on 10 March 2018 and returning for shift on 11 March 2018. The Complainant further submits that his manager’s position in this regard is in contravention of the agreed collective labour agreement.

The Complainant also submitted that his overtime document from March 2018 was changed by his line manager on 3 July 2018, without his knowledge or prior consent. The Complainant stated that the adjusted figure for this document is €3,607.50. The Complainant further submitted that he had, on numerous occasions verbally expressed to his manager that he did not want his overtime document to be altered in any way, without consultation and approval.

The Complainant further stated that he also submitted an overtime document on 31 May 2018, for the sum of €3,330.00. The Complainant submitted that the majority of this amount is in agreement with the current labour agreement document (PSA 3.1 .10). The Complainant stated that the element in dispute is for a travel day on 31 May 2018. He further contends that this strategy was introduced without consultation or approval by the Complainant’s Trade Union. However, the Complainant contends that the Respondent acknowledges this travel day as one full day or .5 of the shift. Consequently, the Complainant stated that he applied for €555.00, representing a full day’s over time, which he claims had been previously approved without dispute. However, the Complainant submitted that the overtime document was altered by his line manager without his consent or prior knowledge. The Complainant contends that the adjusted figures of this document is €3,052.50

According to the Complainant’s submission there are also two outstanding expenses claims for March, which have not been processed. The Complainant submitted that the amounts in question were for €422.12 and €522.10. While the Complainant acknowledges significant interaction between the parties, in relation to this matter, via email and verbally, he contends that he has never received a written reason for not the claims, as filed, not being approved.

In conclusion, the Complainant stated that he was informed, via email, on 27 July 2018, by his line manager, that the Manager of Flight Operations, had instructed him (the line manager) to resubmit the Complainant’s overtime claim without his prior knowledge, consent or approval.

Consequently, the Complainant is seeking adjudication on the matter under the Payment of Wages Act, 1991.

Introduction:

The Respondent denies the Complainant’s claim of an unlawful deduction to his wages, in the amount of €1,776.72. The Respondent submitted that, in the first instance, the sums which comprise this figure are not “wages” and, secondly, that there is no question of a “deduction” being made under the terms of Section 5 of the Payment of Wages Act, 1991.

Background:

The Respondent confirmed that the Complainant is a Captain, who has been employed as a pilot since 20 August 2012. The Respondent also submitted that the Complainant’s base is at Shannon Airport.

The Respondent submitted that, by collective agreement dated 1 November 2005, the Respondent and the Complainant’s Trade Union, agreed a suite of salary and other benefits for pilots employed by the Respondent. The Respondent submitted a copy of this agreement, which is known as the Pilot Service Agreement (PSA).

According to the Respondent’s submission, paragraph 3.1.10 of the PSA explains the allowance that is paid to pilots who are rostered for duty in different basis. According to the Respondent, the agreement states that “where a pilot is required to relocate to or from another base during roster time off, a half-day’s payment shall apply. A relocation in one direction before or after duty away will count as half a day.”

The Respondents admitted in evidence that the Complainant was informed by email on 7 February 2018, that he would be rostered to provide cover at the Respondent’s Dublin base for two consecutive shifts 9/10 and 11/12 March 2018.

The Respondent further submitted that, in line with normal practice, the Complainant may contact the Respondent’s travel desk to book accommodation for his stay in Dublin. The Respondent further submitted that the Complainant booked accommodation for the night before his first duty (i.e. 8 March 2018), for the night of his first duty (i.e. 9 March 2018) and for the night before his second duty (i.e. 11 March 2018).   The Respondent made specific reference to the fact that the Complainant did not book accommodation for the night in between his two Dublin duties (i.e. 10 March 2018)

According to the Respondent’s submission, the Complainant documented that he drove to his home (in County Galway) between his two Dublin duties are, returning on the morning of his second shift (i.e. 11 March 2018). The Respondent further submitted that this equated to a round trip of six hours duration. The Respondent further stated that this is not normal practice when working consecutive shifts at an away base.

The Respondent further submitted that the Complainant logged the travel time involved in his return journey from the Dublin base to his home in Galway, against his Flight Time Limitations. According to the Respondent, this could have had operational implications affecting the Respondent’s ability to provide 24-hour search and rescue cover during the Complainant’s second rostered duty on 11 March 2018. The Respondent submitted that Pilots require a minimum of 18 hours rest before commencing work at 13:00 hours.

The Respondent submitted that, on 30 March 2018, the Complainant proceeded to submit an overtime claim, as is the usual practice. However, the Respondent submitted that, part of this claim was for overtime in respect of the six hours round trip to his home that he chose to undertake between his two Dublin duties, rather than staying overnight in Dublin as is customary and fully paid for by the company. The Respondent stated that this element of the Complainant’s overtime claim, which amounted to €555.00, was not accepted by the Chief Pilot. However, it was submitted by the Respondent that the remainder of the Complainant’s overtime claim for that period, in the amount of €3,607.50, was paid.

According the Respondent submission, the Complainant also claimed the payment of €555 for the travel day to Dublin on 8 March 2018. The Respondent stated that the correct rate for this travel time was €277.50. According to the Respondent’s submission, the amount of €555 was authorised in error with the results that the amount of the claim which was paid, €3,607.50 included an overpayment of €277.50.

The Respondent further submitted that the Complainant claimed additional mileage expenses of €279.30, plus a per-diem of €38.09, for the round trip to his home between shifts on 10/11 March 2018. According to the Respondent, these amounts were part of two expense claims totalling €944.22. The Respondent submitted that the correct total for these claims should have been €626.83.

Finally, the Respondent submitted that, on 31 May 2018, Complainant submitted a second overtime claim in the usual manner. However, the Respondent submitted that part of this claim was for the overtime payment of €555 in respect of a “travel day”. The Respondent further submitted that this claim was not accepted by the Chief Pilot because the normal short notice travel to an away base is that a “half-day’s payment shall apply”, which is in accordance with the PSA agreement.

The Respondent’s submission on the Complainant’s substantive claims:

The Respondent denied that any unlawful deduction had been made from the Complainant’s wages in breach of the Payment of Wages Act 1991 or at all.

With regard to the Complainant’s overtime claims, the Respondent stated that, in the first instance, the sums to which the Complainant’s overtime claims relate do not constitute “wages” for the purposes of the Payment of Wages Act 1991. The Respondent submitted that the term “wages”, as it is used in the Act refers to “sums payable to the employee by the employer in connection with his employment” and that this has been interpreted by the EAT to mean sums which are “properly payable” to the employee.

The Respondent submitted that the allowance referred to in paragraph 3.1.10 of the PSE is not properly payable in this instance and, therefore, does not fall within the terms of the Payment of Wages of Act, 1991. The Respondent further submitted that this allowance is only payable where a pilot is “required to relocate to or from another base during rostered time off”. The Respondent stated that, in this case, the Complainant was rostered for two consecutive duties in the Dublin base, so he was not required to relocate to another base between those shifts. In these circumstances, the Respondent contends that the allowance is not payable.

According to the Respondent’s evidence, it is custom and practice for a pilot to stay overnight when they are rostered for two consecutive duties in a base other than their home base. The Respondent further contends that, if it were otherwise, it may be the case that the pilot will be in breach of the relevant regulations governing flight time limitations for pilots and prevent the Respondent from providing 24-hour search and rescue cover. In this regard, the Respondent pointed out that pilots require a minimum of 18 hours rest before commencing work at 13:00 hours.

The Respondent submitted that no other pilot has ever sought to claim an allowance in circumstances similar to those applying in relation to the Complainant’s claim. According to the Respondent, the Complainant was not “required to relocate” in between the two duties at the Dublin base. It is further contended that there is a clear expectation, custom and practice, which is understood by the Complainant, that he would avail of an overnight stay in Dublin rather than spent six hours unnecessarily driving home (all of which must be logged against his Flight Time Limitations record) during the period between two consecutive duties.

In conclusion, In relation to the overtime issue, the Respondent reiterated that the Complainant’s claims, in this regard, are not owed under the terms of the PSA and custom and practice and, accordingly, these amounts are not properly payable to him.

With regard to the Complainant’s claim in relation to expenses, the Respondent submitted that the term “wages” is defined in Section 1 (1) of the Payment of Wages Act, 1991, as expressly excluding “any payment in respect of expenses incurred by the employee in carrying out his employment”. Consequently, the Respondent submits that the Complainant’s claim in relation to expenses are outside the scope of the Act and, accordingly, the Workplace Relations Commission has no jurisdiction to consider this aspect of the Complainant’s complaint.

In conclusion, in relation to the expenses aspect of the Complainant’s claim, the Complainant submitted that while expenses are excluded from the definition of “wages” in the Payment of Wages Act and, therefore, cannot be considered for adjudication, the Respondent confirmed that any expenses, which are properly due to the Complainant and which have been submitted in accordance with the required procedures, will be paid.

The Complainant’s claim under the Payment of Wages Act relates to what he alleges are unlawful deductions by the Respondent in relation to overtime and expenses claims submitted by him. The claim in relation to overtime refers to two separate claims made on 30 March 2018 and 31 May 2018, while the claim in relation to expenses refers to two claims, which were dated 10 and 11 March 2018.

In all instances, the Complainant alleges that he was paid an amount less than what was claimed and that, in making these deductions to the amount claimed, the Respondent is in breach of the Act in this regard.

With regard to the overtime issue, the Complainant submitted that his claim for €4,162.50, as submitted on 30 March 2018, was reduced to €3,607.50 by the Respondent, who refused to acknowledge his entitlement to two half day payments of €277.50, (totalling €550.00). The Complainant claims he was entitled to these payments under a collective agreement between the Respondent and his Trade Union.

In their response to the Complainant’s claim in this regard, the Respondent argued that the half day payments did not apply in the specific circumstances on which the Complainant based his claim. Consequently, the Respondent contends that the amounts claimed do not constitute “wages” as set out in the Act and are, therefore, not “properly payable” to the Complainant.

Section 1 (1) of the Payment of Wages Act, 1991, defines wages as follows:

“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:

In order to give legal effect to the definition of “wages” as set out in the above Section of the Act, it is necessary to consider how this has been dealt with by the relevant Tribunals and courts. In the case of Sullivan v The Department of Education, the EAT held that while there was no specific definition of deduction in the Payment of Wages Act, guidance can be taken from the definition of wages which includes all sums to which the employee is properly entitled. In addition, in a High Court case, Dunnes Stores (Cornelscourt) v Lacey & O’Brien (2005), Finnegan P. stated that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was properly payable to the claimant.

Based on the above, it was necessary to consider in detail the circumstances in the within case, where the Complainant contends that the payments sought by way of overtime claim are “properly payable” and where the Respondent adopts a different position.

In submitting their respective cases, both the Complainant and the Respondent are relying on the collective agreement, the Pilot Service Agreement (PSA).   Section 3.1.10 of the PSA is entitled, “Day Off Lost” and it states as follows: “where a Pilot is required to relocated (sic) or from another base during roster time off, a half days payment shall apply. A relocation in one direction before or after a duty away will count as half a day”.

On the occasion in question the Complainant, whose normal base is at Shannon Airport, was rostered to provide cover at the Respondent’s Dublin base for two consecutive shifts, on 9/10 and 11/12 March 2018. The evidence shows that the Complainant commuted to Dublin on the night before his first duty (8 March 2018) and, having completed his first shift, on 10 March, made the round trip to his home in Co Galway, returning on 11 March 2018 to commence his second shift.

The Respondent submitted that the Complainant was not “required to relocate” in between the two shifts in Dublin. In this regard the Respondent contends that the custom and practice would be for the employee to avail of an overnight stay in Dublin between the two shifts, the cost of which is covered by the Respondent. Consequently, the Respondent submits that the Complainant’s claim of a half-day’s payment for the two legs of his return journey to his home on 10/11 March do not apply.

Having carefully considered the situation and the submissions made by both parties I have come to the conclusion that the payments in question do not apply in relation to the Complainant’s return journey to his home between the two shifts in Dublin. Section 3.1.10 of the PSA clearly states that the payment applies where a pilot is required to relocate during roster time off. While the period of time between the conclusion of the Complainant’s first shift (9/10 March) at the commencement of his second shift (11/12 March) is clearly rostered time off, it is inaccurate to suggest that he was “required” to make the journey home on 10 March. I’m fully satisfied that this decision was made by the Complainant, for personal reasons, and, therefore, I do not accept that, in such circumstances, he can legitimately claim the payments for both of those journeys.

Consequently, taking all of the above into consideration, I find that the €555.00 deducted from the Complainant’s overtime claim of 30 March 2018 of €4162.50, does not constitute wages which are “properly payable” and, as a result, the Respondent’s action in making the deduction does not constitute a breach of the Payment of Wages Act.

The second element of the Complainant’s overtime complaint relates to his claim of 31 May 2018, to which the Respondent applied a deduction of €277.50 to the claimed amount of €3,330.00, thereby reducing it to €3,052.50. The Respondent submitted that this deduction was applied on the basis that in situations where short notice travel   occurs, the PSA agreement stipulates that “a half day’s payment shall apply”.

Based on the evidence submitted by both parties, in particular, that supplied by the Complainant post the Hearing, it appears to me that there is both confusion and inconsistency between the parties in relation to the application and level of this payment. It also appears that there is no agreement at collective level in relation to this payment. Consequently, in a situation where the application of this payment is clearly an Industrial Relations issue it cannot, therefore, be considered “properly payable” in the context of a claim under the Payment of Wages Act.

Consequently, taking all of the above into consideration I find that the Complainant’s claim under the Payment of Wages Act, 1991, is not well founded and is therefore rejected.

With regard to the Complainant’s expenses claim, the Respondent submitted that claims in relation to expenses are excluded under the Payment of Wages Act, 1991, and that, therefore, there is no jurisdiction to consider this aspect of the complaint.

Section 1 (1) of the Payment of Wages Act, 1991, sets out, as follows, a range of payments which are not covered by the Act:

“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,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.”

Having carefully considered all the evidence adduced in relation to this element of the Complainant’s claim, I am satisfied that claim is relate solely to the issue of expenses. Consequently, based on the provisions of the Act, as set out at Section 1 (1)(i) above, I find that I have no jurisdiction to hear the Complainant’s claim in this regard.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my decisions in relation to the Complainant’s complaint as follows:

With regard to the Complainant’s complaint in relation to deductions made by the Respondent to his overtime claims, I find that his complaint is not well founded and is therefore rejected.

With regard to the Complainants complaint in relation to deductions made by the Respondent to his expenses claims, I find that, as expenses are a deduction specifically excluded under the terms of the Act, I have no jurisdiction to hear this complaint.