Complainant

Respondent

Parties

Roger  Rabbitte

Córas Iompair Éireann Bus Éireann - Irish Bus

Representatives

  self

 Mr John Sheridan Employee Relations Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00043837-001

30/04/2021

The company operates two occupational sick pay schemes:

1.      A scheme that is designed to compensate for absences arising from an occupational injury/certified absence

2.      A separate scheme that is designed to compensate for absences that arise from assault

The second scheme is based on providing an income that is based on average weekly earnings. The more standard scheme is based on providing an income that is based on basic weekly pay.

The dispute relates to the terms and conditions of the second more favourable scheme. At section 7 of that scheme it provides that:

7. In relation to payment, employees reporting absent due to an alleged assault will be paid Average Weekly Earnings, (based on the last 13 weeks), until the time that the meeting with the Services Manager (point 6 above) is convened

And at section 15 it provides that:

15. In the case of the employee continuing to be absent from work following a 4-week period and in receipt of assault assistance pay, payment to the employee will automatically move to Occupational Injury benefit.

However there is a review clause which states that benefit based on average weekly earnings may continue where:

16. In order to address more serious incidents should they arise, the automatic move to Occupational Injury benefit after 4 weeks may be appealed to a Senior Bus Éireann Manager, by following the process as outlined in steps 12 and 13 above. The maximum period an employee may be in receipt of assault assistance pay will be for a 26-week period, after which time payment will revert to being under the Occupational Injury scheme.

The dispute centres on the obligation of management to inform the Driver of this clause and that this failure or omission to do so; based on the facts of this particular case amounts to an unlawful deduction.

The appeal process as referenced in sections 12 and 13; requires that an appeal is made to a Senior Manager to extend the period of benefit above 4 weeks and that appeal is final.

The complainant a bus driver, was assaulted by a passenger on the 21st of September 2020.

He reverted to occupational injury benefit on the 20th of October 2020 and his benefit was then based on basic pay rather than average earnings.

The claim is registered with the Workplace Relations Commission on the 30th of April 2021.

The alleged contravention began on the 20th of October 2020, when he reverted to the occupational benefit based on basic pay.

The better scheme provides that:

11. Should the Appeal be successful any difference between payments made and assault assistance pay will be made to the employee

In this case that means payments theoretically at the higher amount based on calculating benefit on average earnings for up to 26 weeks.

 After 4 weeks the complainant moved to a sliding scale; the amount payable under the occupational injury scheme is based on a reducing % of basic pay. The complainant received far less on this scheme; although, fully in terms of the rules of that scheme.

The alleged contravention would have continued until the last day of entitlement under the occupational injury plan or a return to work if that date was earlier.

The complainant returns to work on the 14th of January 2021.

The contravention runs from the 1st of November until the 13th of January 2021, based on the requirement to lodge the complaint within a six-month period. Therefore, without prejudice to the merits of the claim the period from the 20th of October until the 31st of October is out of time for the purposes of the statutory time limits.

The complainant states that he only became aware of the possibility of receiving a higher amount of payment when he returned to work. He had been very traumatised by the assault and this in turn should have flagged to management that he was entitled to his benefit continuing based on averaged earnings up to a maximum of 26 weeks.

He has an excellent attendance record and returns to work as soon as he could.

The justice of his case calls for a purposive approach to interpreting the conditions of the scheme. What occurred was serious and if an application had been made; it is highly probable that he would have been awarded an extension of the benefit, as intended, and provided for under the terms and conditions of the scheme.

Management had an obligation to tell him that he could appeal the decision to move him back to the normal scheme after 4 weeks and they failed to do so.

The company is very mindful of the circumstances where special treatment is required and that fact is reflected in the very existence of the scheme that provides benefits to staff over and above the normal plan, where that absence is caused by an assault to the person.

The company had in fact contacted the complainant on several occasions concerning his entitlements under the schemes. The terms and conditions of both schemes are readily available on the company intranet site.

The company in their submission state:

“Payment to Mr Rabbitte was consistent with the above Schemes, has received all sickness payment due to him and therefore suffered no further financial loss. Throughout his absence, Mr Rabbitte was informed of various appointments with the CMO (Chief Medical Officer), what scheme he was under and the subsequent impact on his pay while also offered the services of the EAP (Employee Assistance Programme).”

The Chief Medical Officer plays a key role in determining when an employee is fit to return to work. In this case the following occurred:

Following the communication from Mr Rabbitte on September 22nd, and in line with S2 of the ‘Employee Assault Assistance Scheme’ Mr. Melia requested an appointment for Mr Rabbitte with the CIÉ CMO. A telephone appointment was held on September 24th, following which local management were advised that Mr Rabbitte remained unfit with a further appointment to be scheduled. At this time, Mr Rabbitte was also offered the services of our EAP provider. Mr Rabbitte attended further appointments with the CMO on October 08th, November 06th and December 15th, 2020. Mr Rabbitte returned to work on January 08th.

Wages in the Payment of Wages Act 1991 is defined as:

“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, and

The key issue before me is whether the amount being claimed was due.

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—

On the facts no deduction has taken place. The employee may apply for an extension and the decision to make that extension or not is at the sole discretion of management and is not subject to appeal.

Section 5 (6) states:

(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 dispute concerns a payment that maybe paid; not one that is properly payable as per the Act.

The complainant appeals to natural justice to support his claim. However, the redress sought under the Payment of Wages Act does not provide the adjudicator with such discretion. The company relies on the provisions of the scheme that state:

The Appeal will be heard by a Senior Bus Éireann Manager. The employee involved and his nominated Trade Union representative will attend as well as the relevant Services Manager. November 2019 … The decision of the Appeal will be final.

The company state that as no appeal took place and no determination was made to provide for an extension, the matter before the Adjudicator does not constitute an unlawful deduction of wages that are properly payable to the employee.

In Devlin v Electricity Supply Board PW 550/2011 the tribunal noted that:

However a discretion, although it may seem absolute, is not unfettered and must be exercised reasonably and in good faith Horkaluk v Cantor Fitzgerald [2004] 1 ICR 697 and Lichters & Hass v Depfa [2012] IEHC 10.

Hedigan J in Lichters affirmed that a discretion is not unfettered:

In Clarke v Nomura International [2000] IRLR 766 the Court of Appeal for England and Wales considering this type of situation observed: -

"An employer exercising a discretion which on the face of the contract of employment is unfettered or absolute, will be in breach of contract if no reasonable employer would have exercised the discretion in that way."

He went on say that

10 6.9 Whether in the context of a contract in restraint of trade if that is the case, or to determine the proper exercise by the defendant of its discretion as an employer, the question for the court is as to whether it can be considered that in the circumstances of this case no reasonable employer would have acted as the defendant company did

In this case the employee hasn’t exercised his right to appeal as referenced in the employer’s submission and not disputed by the complainant:

Per S.10 of the Scheme, Mr Rabbitte could have appealed the decision whereby his absence was to be recorded as ‘Occupational Injury’. No appeal was however lodged by him.

Based on the facts no payment properly payable to the complainant has been unlawfully deducted from his wages.

Section 6 of the Act states:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

The matter in dispute relates to non-payment of a benefit; and to be paid it required an appeal by the employee so that his employer under the rules of the scheme would exercise a discretion in his favour (or not) to extend payment based on average earnings. As no such appeal took place, or no determination was made to provide for such an extension or not to, no unlawful deduction has occurred.

I determine that the complaint is not well founded as no deduction has been made from the wages of the complainant that were properly payable to him.

Occupational Injury Benefit- Reasonableness of Employer- Unfettered Discretion