Complainant

Respondent

Anonymised Parties

HGV Driver

Postal Service

Representatives

Self 

HR Manager

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-00033380-001

20/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033384-001

20/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033388-001

20/12/2019

It is understood that the Complainant submitted the same complaint on three occasions on the same date, 20 December 2019. By letter dated 2 January 2020 the Workplace Relations Commission wrote to the parties advising that the CA-00033388 and CA-00033384 had been amalgamated with CA-00033380 and would be heard under the Adjudication Reference Number ADJ-00026136.

The Complainant is an HGV driver and has worked with the Respondent since 2006. The parties confirmed the Complainant received a weekly wage of €674 gross and €585 net for a 37.5-hour week.

The Complainant worked as an HGV driver for the Respondent. He drives himself to and from work every day which he stated was a round trip of 105 km. He claims he is at a loss of €3,200 as a result of the Respondent’s refusal to allow him to return to his position of HGV driver after a period of illness.

It was the Complainant’s evidence that this was not an allowance but a fixed driving payment.

On the 7 August 2017, he claims he stopped receiving a payment from the Respondent until 10 April 2019. The Complainant was diagnosed with a serious illness and was deemed, by the Respondent’s medical attendants, medically unfit to return to his position as HGV driver until April 2019. The Complainant argued that his medical attendant stated in a letter that he was fit to return to work and disputed the advice of the Respondent’s medical attendants.

The Complainant also submitted in evidence letters he wrote to the Respondent’s medical attendant setting out his case as to why he should return to work referencing national driving standards and a pamphlet issued by the Respondent listing illnesses that may restrict driving which failed to mention his particular illness. The Complainant outlined the steps he took to recover from his illness.

The Complainant outlined that he received second diagnosis of a serious illness but despite this he was not restricted from driving when the time came for him to return to work.

The Respondent’s medical attendant advised that he undergo assessment from a specialist consultant and the Respondent arranged this assessment. The Complainant stated he had to wait two years for this assessment. The report was dated 8 April 2019 and he was deemed medically fit to return to his duties as an HGV driver on 10 April 2019.

The Complainant stated he met with the Respondent with his Union representative in an attempt to resolve this but as he was dissatisfied with the outcome he filed a complaint to the WRC.

Preliminary Objections

The Respondent raised two preliminary objections:

Firstly, the payment the Complainant is referring to in his claim is an allowance which is only paid to employees who carry out the duties of driving. It is not paid when on annual leave or sick leave. The case of McKenzie & Ors v Minister for Finance & Ors [2010] IEHC 461 wherein Mr Justice Edwards held:-

5.8 Finally, the Court agrees with the respondents’ submission that the Payment of Wages Act, 1991 has no application in the circumstances of this case. First, as has been pointed out, correctly in the Court’s view, the reduction in the PDF allowance is not a “deduction” from wages payable. It is a reduction of the allowance payable. The Act has no application to reductions as distinct from “deductions”. Secondly, even if that were not so, any alleged breach of the Payment of Wages Act, 1991 is not a justiciable controversy before the High Court in circumstances where that Act sets up a specific enforcement mechanism to be availed of elsewhere in such circumstances.”

The Respondent submitted that based on the Complainant’s complaint being about an allowance then it did not fall within the jurisdiction of the Payment of Wages Act 1991.

The second objection was in relation to the time limits of this case. The Respondent argued that the Payment of Wages Act 1991 allows for cases to be heard within a period of 6 month from the date of the contravention and the Complainant’s case falls outside this time period.

Payment of Wages claim

The Respondent submitted that at all times during the Complainants illness he was looked after by them and when he expressed an interest in returning to work, this was facilitated. It was accepted that he was in a role which allowed him to continue to work but on lighter duties.

The Respondent set out its obligations in relation to the health, safety and welfare of its employees and the general public and on this basis, it referred the Complainant to their medical attendant on 14 separate occasions for review. The medical advice received by the Respondent was that Complainant was not fit to drive an HGV and based on this advice, the Complainant continued to work in the mail centre.

The Respondent acknowledged that the Complainant had been through a difficult time but was of the clear view its obligation was to ensure that it was safe for the Complainant to return to driving and until such time as he was deemed medically fit to do so, he was not rostered to drive.

The Respondent did not have any record of a formal grievance raised by the Complainant in accordance with the procedure set out in the employee handbook.  

Preliminary Objection

The first matter to be dealt with is the preliminary objection that the Complainant is out of time to have a Payment of Wages claim decided upon. If successful in this objection, then I cannot decide on any other aspect of the claim as I restricted from doing so by virtue of s.6 (4).

S. 6 (4) of the Act states: -

“A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

The claim form submitted to the WRC on 20 December 2019 and it stated the date of 7 August 2017 as the date upon which he argues he ought to have been paid the sum of €3,200. This was again confirmed at the hearing. Consequently, the cognisable period for this claim dates from 19 June 2019 and ends on the date of submission of the claim to the Workplace Relations Commission on 20 December 2019.

The Complainant stated he returned to work as an HGV driver on 10 April 2019.

On the basis that the Complainant’s claim under the Payment of Wages Act 1991 is out of time, I do not have the jurisdiction to proceed to make findings on the substantive case.

The claim is not well founded by virtue of s.6 (4) of the Payment of Wages Act 1991.

Payment of Wages – Time Limits – Jurisdiction – Not Well Founded