ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00024827

Parties:

	Complainant	Respondent
Anonymised Parties	Fire Fighter	Local Authority

Representatives

SIPTU

LGMA

Complaint:

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-00031501-001	08/10/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00031501-002	08/10/2019

Date of Adjudication Hearing: 14/01/2021

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Final Clarification was submitted by the claimant’s representative on the 30thApril 2021

Background:

This case relates to a grievance by the claimant – who is employed as a retained firefighter – about the respondent’s failure to pay him his full retainer without notice pursuant to his contract of employment. The issue was sourced in a dispute about compliance with the respondent’s sick leave procedure. The union submitted that the non-payment amounted to an illegal deduction under the Payment of Wages Act 1991.

Summary of Complainant’s Case:

The union submitted as follows on behalf of the claimant:

Retained Fire fighters are paid a Retainer which is part of their wages, paid quarterly along with all other payment due. In the case of the claimant his quarterly retainer payment in 2019 amounted to €2703 per quarter. However on the 20th of May 2019 the claimant received a letter from Mr X senior assistant chief fire officer, informing him that 50 percent of the retainer of the 2nd Quarter 2019 was being withheld and the reason being given for this was that 8 out of 11 calls (75 percent) was not met as per Brigade order 2- 2014. The claimant was also informed that his medical certificates were not being accepted. The claimant attended 6 out of 11 Calls and was absent for 5 calls. However for 3 of the missed calls he was certified as unable to attend work by his Doctor. The claimant had a problem with his knee and was suffering from pain for periods during April and May of 2019.He informed his Station Officer of this on the dates when this was occurring and when it was clear that this was taken longer than two days at times he got a medical certificate from his Doctor to confirm his attendance with him for treatment for the pain he was suffering. The periods in relation to this were from 5/4/19 to 6/4/19 with fit to return to work on the 7/4/19. 6/5/19 to 9/5/19 with fit to return to work 10/5/19. 14/5/19 to the 15/5/19. The claimant submitted the certificates to his Station Officer in the Fire Station. The claimant requested his solicitor to look into the matter for him and following their correspondence the Council made an offer to pay him half of the money due to him. The claimant turned this down because he should be receiving the full amount due to him. The case was then referred to the WRC for Adjudication and the claimant requested the union to represent him. CONCLUSION There is no mention of a requirement for the claimant to attend 75 percent of calls in his contract of employment.

The claimant complied with the requirements to provide in writing, by way of his medical certificates that he was unavailable for Brigade duty to his Superior Officer as well at verbally. The respondent is claiming the right to the withholding of 50 percent of the claimant s retainer based on a Brigade order 2-2014.The claimant was not made aware of this Brigade order and has never seen or was given a copy of this.

Furthermore the respondent is well aware of the requirements for consultation and discussion with the Union on any matters or issues which will have an effect on the pay and terms and conditions of the claimant . SIPTU was not informed about any of this and there is NO agreement with us for any requirement of a 75 present attendance at calls. The Council are procedurally out of order by trying to use this to retain half of the claimant s payment due to him.There is a Composite Agreement with the Union dated August 1999, which states clearly that a Fire fighter will receive 4 weeks notice of intention to withhold the Retainer and the claimant was not given this adequate notice.

The claimant has done everything possible to comply with agreed requirements while he was suffering with his knee during the period in question and he should not have been penalized for his illness. The respondent is procedurally wrong in the way they have treated this, and by trying to use a Brigade order which was not made known or given to the claimant s or having consulted or informed SIPTU of this. The respondent have failed to comply with the adequate notice required, and fair procedure has not been adhered to. We are requesting that you find in favour of the claimant and recommend that he should be paid in full the €1351 which is due to him.

In response to the post hearing submission furnished by the respondent the union asserted that while acknowledging that the claimant’s line manager may have been on leave on the 5th.April 2019 , the claimant was adamant that he had advised him of his knee problem and may have done so on the 31st.March as he was unable to attend at the RTC call on the 1st.April 2019.It was further submitted that Fire Fighters would be unaware of when the Station Officer takes leave but that the phone records would demonstrate that the claimant had made phone calls to his Station Officer during the times when he was not able to attend at calls due to his medical problem. It was further submitted that the Brigade Order was not communicated to all in the Fire Station and a signed document by 5 Fire Fighters was submitted into evidence in support of this contention.It was argued that the respondents reference to a 100% attendance would be a breach of the Working Time Directive and that there had been no engagement with the union on a 75% attendance requirement.It was contended that regardless of the foregoing the claimant’s GP had certified the claimant as unfit for work on the dates in question for medical reasons and that consequently he was not in breach of any attendance requirements and that the claimant should not be penalised for this by withholding the payment due to his illness. In the final submission received from the union on the 30th.April 2021 , the union advised that the complainant was unable to access phone records to support his contention that he had contacted his Supervisor by phone about his sick leave – it was submitted that the complainant remained adamant that he had been in touch with his Station Officer during the disputed period.It was submitted that the claimant was not given the proper agreed notice of intention to withhold 50% of the retainer “ as is required under the 1999 Composite Agreement”.It was asserted that the agreement between the unions and the Local Authorities was reached under an agreed Facilitator and arising from Labour Court Recommendation 16234 and that it clearly stated “ A firefighter will receive four weeks notice of intention to withhold the retainer .Any further failure to meet the liability will be dealt with through the disciplinary procedure”.It was submitted that the complainant received a letter on the 20th.May 2019 dated the 16th.May advising that 50% of his retainer was being withheld and outlining the period in question which covered from the 4th.March 2019 to the 14th.May 2019 (appendix 1 in our submission) - the cut off period for the quarter is the middle of the month for processing.

Respondent’s Position

1.1 The respondent’s representative submitted as follows: - This submission is made on behalf the respondent on foot of a complaint by the Complainant under section 6 of the Payment of Wages Act, 1991.

1.2 The complaint under the Act is that the complainant was deducted a proportion of his retainer for the period on the basis that the respondent would not accept medical certificates submitted by him.

2.0 Background

1.1 The claimant is employed as a retained firefighter by the respondent. Retained Firefighters make up about 70% of the Fire Service in Ireland, with Full-time Firefighters in major Cities. There are approximately 2060 Retained firefighters employed across the Country in 202 fire stations.

2.1 Whilst not attending at incidents the availability of retained firefighters does not require them to be in attendance at the fire station, they operate on the basis which requires them to be available within a specified distance of the Fire station so that they can respond to an alerter and mobilise within a specified period of time. The contractual relationship between the parties is clear, the claimant receives a retainer to be available, and to attend calls when alerted

2.2 The structure of payment for retained firefighters is that they are paid an annual retainer which is paid across four quarters - they are in addition paid separately for attendance at fire incidents and for attendance at training and drill nights.

2.3 In the second quarter of 2019 which is the period from 1st March 2019 to 30 May 2019 the Fire service in the claimant’s catchment area was alerted to attend 11 incidents of which the claimant attended to 6 of them. The claimant failed to attend when alerted incidents on the 1st April, 6th April, 7th 9th and 14th May. He did not in advance of any of the above dates advise his station officer or any member of the fire service of his unavailability to attend.

2.4 On 15th May 2019 the claimant submitted 3 certs (for dates 5 - 6 April, 6 - 9 May and 14 May) to his Station Officer. This was the first time the Station Officer was aware that the claimant had been on certified sick leave on those dates.

2.5 The details of these certs are follows.

2.5.1 Cert dated 7th April 2019- Unfit for work from 5th to the 6th April due to knee injury

2.5.2 Cert dated 10th May 2019- Unfit for work from 6th to the 9th May due to knee injury

2.5.3 Cert dated 14th May - Unfit for work on the 14th May due to knee injury

2.6 The Council having examined the medical certificates submitted determined that the claimant’s absences for these dates would not be covered under the sick pay scheme on the following basis

2.6.1 The 15th of May was the first time that the claimant was advising that he was absent on the dates in question due to illness

2.6.2 The first cert related to dates 6 weeks previous to them being submitted.

2.6.3 The certs did not comply with the Council’s Sick Leave Scheme (Section 1.2 “a signed medical certificate must be submitted and received in hr as soon as possible but not later than the fifth consecutive day of absence.” )

2.6.4 One of the certificates submitted covered a day in which the claimant actually attended an incident the 5th April, however on the basis of the medical cert submitted he was actually unfit and should not have attended.

2.6.5 The cert in respect of the 5th and 6th of April was dated the 7th April. The claimant attended incidents on the 14th, 15th, and 19th of April at no time did he advise the station officer that he had been on sick leave nor did he present the medical certs which were dated the week previously.

2.7 As the claimant was considered not to have met the provisions of the sick pay scheme for these absences he was deemed to have be failed to attend the calls in question.

2.8 The claimant’s employment as retained firefighter is subject to the following conditions. “Failure to attend 75% of fire calls in any quarter will lead to a loss of 50% of the retainer in the first quarter and 100% in the second quarter in any twelve months in accordance with the provisions of Sustaining Progress Partnership Agreement. Failure to attend 85% of fire drills in a quarter will lead to a loss of 50% of Retainer in the first quarter and 100% in the second quarter in any twelve months. These provisions are in accordance with Sustaining Progress Partnership Agreement and the Retained Composite Agreement 1999.”

2.9 In accordance with the above provisions the claimant’s retainer for the period was reduced by 50%

3.0 Respondents Position

3.2 It is the Respondent’s case that the Complainant was paid in accordance with his contract and the sick leave scheme and that no contravention of the Payment of Wages Act 1991 arises.

The applicable law

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6) provides;

· “Where—

o (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”.

If the claimant is seeking to have the days in question considered as sick leave it is the position of the Council that there is no legal entitlement to sick leave. it is accepted that the claimant’s ’s contract provides for the payment of sick pay however this is a discretionary matter to be determined by the Council having regard to certain criteria set out in the sick pay scheme who have to be satisfied that the criteria in the scheme are met. It is the position of the Council that such a discretionary payment under the sick leave scheme cannot form part of wages that are properly payable as set out in section 5(6) of the Act.

3.3 The Council is satisfied that its decision in this matter applied all criteria in a fair and reasonable manner and in accordance with the Complainant’s contractual entitlements and is satisfied that in respect of the reckonable period the claimant was paid the wages that were properly payable to him arising from his contract and therefore, there was no breach of the Act.

3.4 The complaint as set out has to be considered in the critical aspect of the fire service and its ability to respond to all incidents that arise where such incidents may prove to be a matter of life or death. In such a critical environment the ability of the respondent to rely on firefighters to respond to alerts is critical. It is accepted that firefighters may suffer illnesses but in such instances, there is an obligation to advise their line managers. In the event that a particular station cannot turn out a crew the station will be stood down and another station will be appointed to cover their area, however this can only occur with advance notice.

4. Conclusion.

The Council believe that the total amount of any wages paid to the Complainant at the material time was not less than the amount properly payable to him throughout that period and therefore the complaint cannot succeed.

In a post hearing submission, the respondent’s representative furnished a statement from the claimant’s line manager affirming that the alleged conversation between him and the claimant about his knee injury could not have taken place on the 5th.April 2019 as he was on leave on the day in question. The line manager also confirmed that he received no further contact from the claimant until the medical certs were furnished on the 15th.May.It was submitted that all fire fighters and station officers were furnished with a letter from Mr.Y dated the 28.10.2014 and 31.10.2014 advising of list of brigade orders including minimum attendance standards. It was submitted that the claimant had confirmed in writing his attendance at a drill on the 5.11.2014 where the Brigade Orders were discussed with the crew and a copy of the attendance sheet supporting this contention was submitted .It was asserted that there was uniform awareness of the attendance requirements. It was further submitted that while there is a requirement for 100% attendance at alerts “whilst it is open thereafter for any fire authority to amend this requirement which is the discretion the respondent exercised in 2014 as noted in the document this was set at 75% in 2014 .In this instance the claimant claims no knowledge of this , therefore we can only move to the default of what is contained in the 1999 Composite Agreement which is 100% attendance”.

Findings and Conclusions:

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.

Section 5 of the Act states

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.
		(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
		(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and
		(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is ofan amount not exceeding the cost to the employer of the goods or services, and
		(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.
		(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.
		(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.
		(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).
		(5) Nothing in this section applies to—
		(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—
		(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—
		(I) any overpayment of wages, or
		(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,
		made (for any reason) by the employer to the employee, and
		(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,
		or
		(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or
		(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941 , amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or
		(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—
		(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or
		(ii) to which the employee has otherwise given his prior consent in writing,
		and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or
		(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or
		(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or
		(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.
		(6) 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.

The claimant has argued that the withholding of his retainer was an illegal deduction under the Act while the respondent has argued that there was no breach of the Act and that they were entitled to withhold the retainer in circumstances where the claimant had failed to comply with the respondent’s discretionary Sick Leave Scheme. While it is a matter of dispute between the parties as to when the claimant’s manager was informed of the claimant’s absence in April/May 2019 , the Sick Leave Scheme requires that a medical certificate “must be submitted and received in HR as soon as possible but not later than the fifth consecutive day of absence”. Having reviewed the evidence and the submissions of the parties I find on the balance of probabilities that the claimant failed to meet his obligations with respect to the sick certificates submitted by him.

I note that the claimant’s terms and conditions of employment specify “Failure to attend 75% of the drills in a quarter will have the result that the employee will forfeit their right to payment of the annual allowance for that quarter …..”

I accept the evidence submitted by the Council confirming that the claimant attended a meeting on the 5th.11.2014 at which Brigade Orders referencing attendance requirements were considered. While I acknowledge the union’s submission that not all fire station personnel were appraised of the Brigade Order setting out the minimum attendance requirements, the claimant is on record of being in attendance at the Nov. 2014 meeting where the matter was listed on the agenda.

In the circumstances I must find that the payment of the full retainer could not be deemed to be wages properly payable in circumstances where the evidence supports the respondent’s contention that the claimant failed to comply with the provisions of the Council’s Sick Pay Scheme.

While the union have further argued that the respondent failed to comply with the provisions of the 1999 Composite Agreement that requires the respondent to give a firefighter 4 weeks notice “ of intention to withhold the retainer”, this complaint was not lodged under the Industrial Relations Acts. The complaint was lodged under the Payment of Wages Act where the notice requirement for a deduction is one week before the making of the deduction. In all of the circumstances I find that there has been no breach of the provisions of the Payment of Wages Act 1991.

Decision: 15th June 2021

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the complaint is not well founded.

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Key Words:

Firefighters – withholding of retention allowance