PWD2021

1.Appeal Of Adjudication Officer Decision No. ADJ-00024483 CA-00031164-001

BACKGROUND:

2.This is an appeal of an Adjudication Officer’s Decision no ADJ-00024483 made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 25 February in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DETERMINATION:

This matter came before the Court by way of an appeal brought by the Dublin Airport Authority (the Appellant) against a decision of an Adjudication Officer made in respect of a complaint under the Payment of Wages Act 1991 (the Act) made by John Bacon, (the Respondent).

The Respondent alleges that the Appellant failed to pay him the amount of €2,472.10 on the occasion of the termination of his employment and that failure amounted to an unlawful deduction within the meaning of the Act. He further stated that a consequence of this failure was that another deduction, in the amount of €2,101.13, which was made on the same date was not offset against the amount properly due to him. This latter deduction is not the subject of the within complaint.

In support of his complaint, the Respondent alleges that when he commenced employment in 1979 he was paid in arrears. He contends that he should have received four ‘back weeks’ pay upon the conclusion of his employment. He submitted that he received only two ‘back weeks’ pay upon the termination of his employment. He contends that the Appellant should have paid him an additional two weeks’ pay in the amount of €2,472.10 against which should have been offset the deduction of €2,101.13. The deduction of €2,101.13 was in respect of a repayable ‘bridging payment’ which he had earlier received as part of a collective agreement.

The Appellant submitted that the Respondent, as a result of a collective agreement reached at the end of 2018, was paid two weeks in arrears up to the date of termination of his employment and, in consequence of that fact, continued to be remunerated for two weeks after the termination of his employment. His final salary payment occurred on 11^thSeptember 2019 and represented payment in respect of the pay period to 31^stAugust 2019. He was not paid four weeks in arrears before the termination of his employment and in fact was paid on a current basis until a collective agreement concluded in late 2018 which provided for payment of affected staff on the basis of two weeks in arrears.

The Respondent initially made a complaint to the Workplace Relations Commission that the Appellant had made an unlawful deduction of €80 from his wages. Before the Court however, the Respondent made clear his submission that he had been paid on an arrears basis since 1979 and that his complaint relates to the Appellant’s failure to address that arrangement in the final payment made to him upon termination of his employment.

Position of the Appellant

The Appellant submitted that the term ‘payment in advance’ has a particular meaning in the employment. Specifically, employees who receive ‘payment in advance’ are paid in advance of the payroll administration having sight of pay elements which derive from additional hours working or any other payment which is driven by time actually worked. The term ‘payment in arrears’ refers to the payment of overtime and other elements of pay which are calculated in arrears based on time actually worked. The Appellant submitted that at all times throughout the employment until the beginning of 2019 the Respondent was paid ‘in advance’ in respect of all aspects of his pay which were not dependent on time actually worked and ‘in arrears’ in respect of those elements which depended on time actually worked.

The Appellant submitted pay slips dated from 2004 and an audit report in support of its contention that the Respondent was not paid in arrears other than as outlined prior to January 2019. The Appellant submitted that the Respondent was paid two weeks in arrears with effect from January 2019 and received two weeks’ pay in recognition of that fact upon the termination of his employment.

Position of the Respondent.

The Respondent submitted that, upon his recruitment in 1979, his contract provided that he would be paid ‘weekly in arrears’. He submitted that, by agreement, he was moved to being paid fortnightly in arrears in 1985. In support of his contention, the Respondent submitted a copy of a letter from the Appellant issued to him in 1979 and also submitted a copy of a document issued by the Appellant upon the introduction of fortnightly pay in 1985. The Respondent submitted that he was paid on the basis of four weeks in arrears prior to the termination of his employment and should have received four weeks’ pay in respect of that arrangement at the termination of his employment.

The Respondent submitted that the Appellant failed to pay him two of four weeks’ pay in arrears which was due to him upon the termination of his employment and that this failure amounted to an unlawful deduction within the meaning of the Act.

Relevant law

The Act at Section 5 in relevant part 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.

• • (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 conclusion

The Court has examined very carefully the documentation submitted by the parties to support their opposing positions. There is no dispute between the parties that the payments made to the Respondent on 11^thSeptember 2019 amounted to wages which were properly payable to him at that time. The Respondent however contends that in addition to the payments made to him he should have received a further two weeks wages on that occasion because of arrangements entered into in 1979, 1985 and 2018 which combined to result in his having, since 1985, been paid on the basis of two weeks in arears and since 2018, four weeks in arrears. He contends in essence that two further weeks’ pay in the amount of €2,472.10 was properly payable to him on 11the September 2019 and that the failure to make that payment amounted to a breach of the Act.

The first matter to be considered by the Court is the matter of what was properly payable to the Respondent on 11^thSeptember 2019. If the amount properly payable to him on that occasion is more than that which was actually paid to him it will be necessary to determine if the difference amounts to a deduction within the meaning of the Act and if that deduction was lawful.

This first matter will turn on whether the Respondent was paid on basis of four weeks in arrears upon the termination of his employment such that two further weeks wages were properly payable to him on 11^thSeptember 2019.

The Court does not have the benefit of payslips or other payroll information dating from 1979, the date of commencement of the Respondent’s employment, and neither does it have such material dating from what both parties agree was the introduction of fortnightly pay in 1985. Both parties confirmed to the Court that they were unable to provide payslips and other documentation dating from 1979. The Appellant did submit payroll detail in respect of the Respondent dating from 2004.

The Court’s attention has been drawn to the following by the parties :- (a) the use of the term ‘weekly in arrears’ in a letter submitted by the Respondent to have issued to him from the Appellant in 1979, (b) the text of a document issued by the Appellant setting out arrangements for the implementation of fortnightly pay in 1985, (c) payslips of the Respondent dating from 2004, and (d) details of a 2018 agreement which purported to move all staff of the Appellant to being paid fortnightly in arrears. That latter agreement was addressed by the Appellant in the final pay arrangements of the Respondent and is not in dispute.

The Court, faced with an absence of significant relevant payroll details, did question the parties in an effort to ensure that all possible detail relevant to the matter at issue and in the knowledge of the parties, was put before the Court. In that process, the Court established that, as a matter of fact, the Respondent was, prior to the conclusion of a collective agreement in 2018, paid all pay increases which were expressed to apply from a specific date on a current rather than an arrears basis. It was common case that there was no time lag between the payment of those pay increases to staff who were paid on a current basis and payment of the same increase to the Respondent who contends he was paid in arrears at the dates of application of those pay increases.

It is clear that, where the Respondent has alleged that two further weeks wages were properly payable to him on 11^thSeptember 2019 and that the failure to pay those wages amounted to a deduction and that such deduction was unlawful within the meaning of the Act, he bears the burden of establishing the primary facts from which it could be inferred or concluded that the impugned amount was properly payable to him at the time of the alleged deduction.

In all of the circumstances and having regard to the lack of detailed records available, the actual information which was submitted to the Court and the undisputed pay history of the Respondent in terms of the application of increases expressed to apply to his pay from specific dates, the Court determines, on the balance of probability, that the Respondent was not in fact paid in arrears in the manner submitted by him prior to the agreement concluded in late 2018. In those circumstances the Court concludes that the amount which the Respondent was paid on the 11^thSeptember 2018 was the amount which was properly payable to him on that date.

The Court cannot conclude that the amount which the Respondent has submitted amounted to a deduction from his wages upon the termination of his employment was properly payable to him at that time.

The Court must therefore conclude that the failure of the Appellant to pay the sum of €2,472.10 to the Respondent on 11^thSeptember 2018 could not be an unlawful deduction within the meaning of the Act.

Determination

For the reasons set out herein the Court determines that no unlawful deduction was made from the wages of the Respondent. In these circumstances, the appeal is allowed, and the decision of the Adjudication Officer is set aside.

	Signed on behalf of the Labour Court
	Kevin Foley
H.M.	______________________
28 July 2020	Chairman