PWD1932

The Adjudication Officer, in a decision dated 7^thAugust 2019, decided that the complaint was not well founded.

Background

The Appellant is employed as a Team Leader in the Cabin Appearance Section of the Respondent’s Ground Operations in Dublin Airport.

The Appellant is required to carry out her role “airside”, meaning that she works in a restricted area beyond security in the airport. In order for the Appellant to be able to carry out her role she must hold a current Airport Identification Card (AIC) which allows her access through security to her place of work. The issuance of an AIC is a function of the Dublin Airport Authority (the DAA), which is a separate entity to the Respondent.

In 2018, arrangements for the issuance of AIC’s changed insofar as a new requirement to secure Garda vetting in order to receive an AIC was introduced. The Respondent, in e-mails of July 2018 and September 2018 notified all staff of the change to the arrangements for issuance of an AIC and advised staff of the importance of applying for renewal of AIC’s in a timely manner. Those e-mails advised staff that it was their responsibility to ensure that their AIC is valid and advised staff to commence the renewal process 60 days in advance of expiry of existing AIC’s. The e-mails advised staff of the existence of an ‘ID Card Hub’ where all information associated with renewal could be located online. That ‘ID Hub’ contained material which advised staff that, should they allow their AIC to expire, they would be placed on unpaid leave until the AIC was renewed. The mail also advised staff that the DAA would send a prompt e-mail to staff 60 days in advance of the expiry of their AIC.

The Appellant attended a training programme on 10^thOctober 2017. The Respondent maintains that application arrangements for an AIC were the subject of training on that programme and that assertion is contested by the Appellant.

The Appellant’s AIC was due to expire on 3^rdNovember 2018. She did not commence the process of renewing her AIC until approximately 15^thor 16^thOctober 2018 when she approached the relevant section of the DAA. She ultimately applied to the DAA for renewal of her AIC on 2^ndNovember 2018, one day before expiry of her then existing AIC.

The Appellant’s AIC expired on 3^rdNovember 2018. She notified her manager by e-mail on 2^ndNovember 2018 that she would be unable to attend for work with effect from the 4^thNovember. Her manager replied on 3^rdNovember 2018 to advise here that she would be placed on unpaid leave for the days upon which she would be unable to attend work as a result of her AIC having expired. She was unable to access her place of employment or to carry out work for the Respondent on 4^th, 6^th, 7^th, 8^thor 9^thNovember and she was placed on unpaid leave on those dates. She was on a rostered day off on the 5^thNovember 2018 for which she was paid and was on various forms of paid leave after 9^thNovember.

The deduction of wages in respect of the days of unpaid leave occurred on 22^ndNovember 2018. Her card was renewed while she was absent on such leave and no further unpaid leave occurred.

Summary position of the Appellant

The Appellant submitted that the deduction of €1,051.73 which took place in November 2018, constituted an unlawful deduction contrary to the Act. She submitted that she relied upon information from the Respondent regarding the renewal process and that this information was misleading. In particular, she submitted that e-mails from the Respondent of July and September 2018 advised that DAA would send an automated mail 60 days in advance of the expiry of her AIC and that this did not happen.

She submitted that she attended training on 10^thOctober 2018 and that she assumed that this training would facilitate the application process for renewal of her AIC.

The Appellant submitted that, contrary to the provisions of the Act at Section 5(1), she had not given prior permission for the deduction from her wages and neither did her contract make provision for such deduction.

The Appellant also submitted that the Respondent had not complied with the terms of the Act at Section 5(2) in that the deduction was not fair or reasonable and that appropriate notice in writing was not supplied to her. She submitted that, consequently, the deduction from her wages was invalid.

Summary position of the Respondent

The Respondent submitted that it had communicated extensively with staff as regards the changes to arrangements for issuance of AIC’s in 2018. It also notified staff at all times that renewal of their AIC was their responsibility. The Respondent also submitted that the Appellant was notified that a failure to hold an AIC would mean that she would be placed on unpaid leave until she secured a valid AIC which would allow her to work.

The Respondent submitted that it was an implicit feature of the Appellant’s contract of employment that she must be available to work in order to be paid. In the within situation the Appellant, through her failure to discharge her responsibility, was unable to attend for work for a number of days and she was placed on unpaid leave for those dates.

The Respondent relied upon the Act at section 5(2) to assert that it made a deduction from the wages of the Appellant because of an omission on the part of the Appellant and that the deduction was authorised by an implied term of her contract of employment. The deduction was notified to her in advance and she was furnished at least one week in advance of the making of the deduction with particulars in writing of the omission and the amount of the deduction.

Relevant Law

The Act at Section 5(1) provides as follows:

• 5.— (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,

    (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

    (c) in the case of a deduction, the employee has given his prior consent in writing to it.

  The Act at Section 5(2) provides in relevant part as follows:

  5(2) An employer shall not make a deduction from the wages of an employee in respect of—

  (a) any act or omission of the employee, or

  • (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,
  unless—
  • (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

    (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

    (iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

    • (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,
    (II) in any other case, notice in writing of the existence and effect of the term,
  and
  • (iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

It was common case at the hearing of the Court that it was the responsibility of the Appellant to renew her AIC and to ensure that she was at all times in possession of a valid AIC such that she could perform her contracted role. It is also common case that the Appellant was notified by e-mail in July and September 2018 of changes to arrangements for renewal of AIC’s and the advisability of commencing the renewal process 60 days in advance. Similarly, the parties did not dispute that all staff of the Respondent, including the Appellant, were notified in July and September 2018 of an ‘ID Hub’ which contained advices in relation to renewal of AIC’s and specifically advised all staff that a failure to hold a valid AIC because of expiry would result in placement on unpaid leave pending renewal.

The Appellant agreed at the hearing that she knew her AIC was due to expire on 3^rdNovember and that she had been advised to commence the renewal process 60 days in advance. She has argued that she did not commence that process until at least the middle of October because she was awaiting an automated mail from the DAA which had been undertaken to be issued 60 days in advance of expiry of a staff member’s AIC.

The Court concludes that the failure to renew her AIC was, within the meaning of the Act, an omission on the part of the Appellant. In that circumstance the relevant law is the Act Section 5(2). The Court finds that the Appellant’s omission caused her to be unable to discharge an implied term of her contract of employment which was that she be in a position to carry out her contracted role. Therefore, the Respondent was entitled under the Act to make a deduction in accordance with the Act at Section 5(2)(i). The deduction was, in accordance with the Act at Section 5(2)(ii), fair and reasonable. The Appellant was, in advance of her absence from her employment and in accordance with the Act at Section 5(2)(iii), notified of the relevant implied term of her contract of employment. Finally, the Appellant was, in accordance with the Act at Section 5(2)(iv), at least one week before the making of the deduction, provided with particulars in writing of the act or omission and the amount of the deduction.

In all of those circumstances the Court concludes that the Respondent was not in breach of the Act in consequence of making a deduction from the wages of the Appellant on 22^ndNovember 2018.

Determination.

The Court determines that the within appeal fails and accordingly the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CC______________________
21 November 2019Chairman



NOTE

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