Complainant

Respondent

Parties

John Joe  O'Driscoll

Seahorse Unlimited Company

Representatives

Shonagh Byrne SIPTU

James Cleary IBEC

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-00040391-001

13/10/2020

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

CA-00040391-002

13/10/2020

The Complainant was employed as an able-bodied seaman (AB rating) on an offshore rig support vessel and commenced employment on 4 November 2011. His monthly gross pay is €3581.11; net €2326.51. The Respondent operates 28 days on, 28 days off rotation on ships that service the Kinsale Gas offshore platforms, from a base at the Port of Cork. When the Complainant works one period of 28 days, he accrues enough pay to sustain pay for two months, specifically one at sea and one on shore leave. The Complainant went on sick leave before he was due to work on the vessel in June 2020. He was subsequently declared fit for work for the month of July, which was a leave month. He was paid 47% of wages and not full pay. The Complainant submits that his full wage was properly payable for July 2020 and therefore the 53% deduction, which amounted to €1,832 gross was an unlawful deduction in breach of Section 5 of the Payments of Wages Act 1991 (the Act). The Respondent denies the claim and asserts that that the deduction was lawful by nature of the collective agreement and normal practices at the company.     

The Complainant was due to work on the vessel in June 2020 but was unable to go to sea due to a medically supervised back ailment. The Complainant received the agreed sick pay for the month of June.  Following medical treatment, the Complainant was certified fit to return to work in July and all medical documentation was submitted to the Respondent. The month of July would have been the Complainant’s shore Leave and he should have been returned to full pay as he was certified fit to work. However, the Complainant only received sick pay for the month of July 2020 of €1625.80 gross/€1378 net, instead of his full pay entitlement of €3581.  The Complainant submits that the 47% in sick pay is constructed in such a way that that an employee on sick leave can get near enough full wages by claiming social protection payment. He could not do this for the month of July because he had been certified medically fit by his Doctor.

 The Complainant relies on a provision in the Collective Bargaining Agreement (CBA) of 2015 “Equal payments will be made by electronic transfer to each individual’s bank account every 28 days to coincide with crew change”.

The Complainant is seeking payment of the monies deducted from his salary in July 2020 as he should have been paid full salary, as per the CBA and the Payment of Wages Act 1991.

The Complainant, in evidence, stated that in a similar occurrence in 2018 when he suffered a back injury, he was paid his full salary when certified fit for a period of shore leave. He gave further evidence that he had no knowledge of the sick pay arrangements for shore leave for other Union members.

The period of absence was paid as per the collective agreement. The Complainant was out for a total of 29 days during his sick leave and was paid 47% of wages accordingly. The Complainant submitted his fitness to return to work when he was starting a shore leave period without having worked the previous 4 weeks at sea which would have normally entitled him to full pay on the shore leave, for the following 4 weeks.  The Complainant had not worked the required 28 days prior to ensure entitlement to full pay.

The Respondent claims that the Complaint is not in keeping with the spirit of the Collective Agreement and is worried that should the complaint succeed it would allow any employee to manipulate the company sick pay scheme.

The Respondent refutes the claim that there was an unlawful deduction under the Act in that any claimed deduction was a lawful deduction in line with Company policies and procedures. There was also a custom and practice amongst crew members where employees on sick leave would not be paid full pay for shore leave subsequent to not having worked the previous 4 weeks on the vessel.

The Respondent submits that the “wages properly payable” were the wages as advised to the Complainant in the contract of employment and the collective agreement, and also as per the custom and practice.

The Fleet Director gave evidence that the previous payment to the Complainant, in 2018, when the Complainant had to be evacuated from the ship by pilot boat, was deemed as a once off and unique payment which did not fall in line with the custom and practice normally operated on the vessel. Further evidence was given that the Complainant was a shop steward in a very close-knit crew and would be fully aware of the operational requirements and payments of the sick pay scheme as practiced on board and on shore leave.   

The Applicable Law:

 Section 1 the Payment of Wages Act (the Act) 1991 Act 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.”

 Section 5(6) of the Act provides:

“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”.

In determining whether the wages are properly payable it is necessary to determine initially whether the deduction in this case was lawful under the contract of employment, either by express or implied provision. The terms of the sick pay scheme as alluded to in the contract of employment, together with the incorporated collective agreement, give no express advice on how the sick pay scheme operates vis a vis entitlement on shore leave. However, it is quite clear that for an employee to earn one month’s shore leave, the previous month must have been worked on the vessel. This is an understandably different scenario to conventional shore based working arrangements. Likewise, where shore based sick pay schemes are available an employee on sick pay for consecutive weeks must return to work to receive full pay. In this case, where unconventional patterns are the mainstay of seafaring work, the return to work cannot be to shore leave that was not in itself worked up in the previous month – such an anomaly is improbable as a true reflection of the intention of the parties when the sick pay scheme referred to in the collective agreement was brokered. Furthermore, the Respondent gave plausible evidence that the custom and practice was that one had to return to the vessel to receive full pay, and not to shore leave when an employee was fit to return. The Complainant’s evidence, that he had no idea of the practice employed for other crew members under the collective agreement, was unconvincing given the uncontested evidence that he was a union shop steward on a vessel that remains at least a month at sea. I am satisfied also that the previous full payment for sick pay shore leave in 2018 was one that was dictated by unique circumstances and did not in itself create a precedent to be relied upon. After full consideration of the submissions and evidence in this case, I am not satisfied that the sum of €1,625.80   was properly payable to the Complainant therefore the complaint of unlawful deduction was not well founded. 

CA-00040391-001 Complaint seeking adjudication under Section 6 of the Payment of Wages Act 1991:

After consideration of the submissions and evidence in this case, I am not satisfied that the sum of €1,625.80   was properly payable to the Complainant therefore the complaint of unlawful deduction was not well founded. 

Payment of Wages Act 1991, Sick Pay.