Complainant

Respondent

Parties

Shane  Flynn

ESB Networks

Representatives

John Keenan JRK Business Support & Employee Advocacy Services

Lorna Lynch BL instructed by Lisa Devanny (in-house legal).

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00048968-001

04/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004

CA-00048968-002

04/03/2022

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

CA-00048968-003

04/03/2022

The Complainant is employed by the Respondent as a Network Technician. The complaint is one of ten that have been selected as test cases from a total of 200+ complaints from Network Technicians employed by the Respondent.

There are three distinct complaints, these are as follows:

1.       Complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

2.       Complaint submitted under section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004.

3.       Complaint submitted under section 6 of the Payment of Wages Act, 1991.

This complaint was received by the Workplace Relations Commission on 4th March 2022.

Hearing of the complaints took place on 14th and 15th June and 13th July 2022.

Comprehensive submissions were received post hearing on the interpretation of the Payment of Wages Act 1991.

Context.

The context in which the Complaints arise is an ongoing trade dispute between the

Complainants’ chosen trades union, the Independent Workers’ Union (IWU) and the ESB Group of which ESB Networks is a constituent part. The dispute in question is ongoing since 2021.

This shared context is important in explaining why rights submitted to have been infringed arise in each instant case.

However, it is submitted that this explanation does not excuse the fact rights and entitlements of the Complainants have been infringed or denied.

Core Issue.

It is submitted that the core issue concerned is the fact that the Respondent has adopted an adversarial, if not aggressive stance, in addressing Complainant’s legitimate right to challenge imposition of key changes in their terms and conditions of employment without consultation or consent.

The issue at the center of the three complaints under statute law is the imposition of a new payroll processing system. This system requires each individual to utilise an Online Application (App) branded ‘MyTime’.

This system has been acquired by the Respondent to replace an existing method of payroll processing involving the scanning of individual data into a payroll portal for electronic processing resulting in the calculation of payments due, and ultimately the associated electronic fund transfer to each individuals nominated bank account.

This process involves completion of individual paper timesheets in respect of attendance and absence, allowances, and payments in addition to basic pay related to hours and duties in excess of basic requirements.

The data collected is processed and payments are issued in accordance with a contracted and well-established fortnightly or weekly routine.

In essence this routine generates payment based on data collected in respect of the two weeks completed immediately prior to the week in which payment issues.

Imposition of change

Since the last quarter of 2021, the Respondent has sought to impose the new MyTime App based system. This system eliminates the collection of data through the existing paper-based system described.

Each of the Complainant’s has declined to utilise the MyTime App. System, based on their considered belief that the implementation of such change should be by agreement and consent arrived at through reasonable and effective consultation and bargaining, as may be necessary.

However, it is submitted that because each has declined to utilise the MyTime system they have been penalised.

Penalisation

The penalisation in question is that the contracted and well-established payment of wages

routine, which can be described as ‘fortnightly/weekly in arrears’ is no longer being adhered to.

As individual testimony will affirm, each Complainant is and has been enduring two elements of penalisation: payments in respect of overtime and allowances are not being paid in a regular routine defined as ‘fortnightly/weekly in arrears. Payments due are being delayed.

As a consequence of the delay involved, and its inconsistency, the statement of earnings received by the Complainants i.e., their fortnightly/weekly payslips, cannot be easily reconciled in a manner that reasonably allows each individual to confirm that payments due are equal to payments received.

As will be heard through the testimony of each Complainant the delayed and unclear payments can, have and currently do accrue to amounts ranging from hundreds of Euros to thousands of Euros.

Deliberate nature of penalisation

It is submitted that the Respondent is, has and continues to penalise each individual in the manner described while feigning inability to correct and regularise payment.

Each of the ten individual Complainants have attempted to address the penalisation involved through the medium of the Respondent’s Grievance Procedure.

This procedure has typically been elongated beyond the timeframes prescribed, and not all of the ten grievances have been fully processed.

However, despite the fact that fair procedure requires that individual grievances be

processed individually by ‘independent’ managers it is clear from written decisions both from grievance hearings and grievance appeal hearings that a single policy and agreed script is being followed by the Respondent’s managers.

Individuals are being advised that delayed payment can solely be corrected through the utilisation of the MyTime App.

Explanations are alternately being offered as including the fact that; the paper-based scanning system is obsolete, or the relevant IT license is expired, and/ or that there is a collective agreement being implemented with which each individual is required to comply.

The manual inputting of payroll data in respect of the Complainants is and has given rise to unavoidable delay.

Accordingly, each is advised that they are responsible for any delay or interruption to the payroll routine.

Th fact is, however, basic payroll data relating to attendance and absence is being input to the MyTime system on a timely and routine basis, by supervisors/mangers.

The fact is that there is evidence that supervisors have been instructed to delay inputting of timesheet data as part of a concerted effort to impose the MyTime App system. Please see the attached text message exchanges in which it is evidenced that supervisors and those acting in their absence have been and continue to be excluding the timely inputting of date related to overtime and allowances when inputting other necessary payroll data related to basic attendance and absences. This deliberate exclusion is not based on lack of information or lack of capability or resources, but on management instruction.

Also attached is a management memo to supervisors advising that beginning in week no.45 of 2021, Paper timesheets would not be processed on a weekly basis, as per established routine. This would create an arrears period of up to six weeks.

In addition, testimony will be given in respect of a management direction to “hold off posting

December timesheets until the end of the month.”.

In addition to the penalisation of deliberately delayed payments and ambiguous payslips, in recent days it has emerged that supervisors have been instructed that personnel not utilising the MyTime App should not be considered for upgrading in the next round of upgrades in the NT Portfolio i.e., grading structure.

Complaint under The Terms and Conditions (Information) Act 1994

In summary it is submitted on behalf of each individual Complainant that the Respondent is not entitled to unilaterally alter any fundamental term in their contract of employment without consultation, agreement and formal consent when required.

Section 3(1)(h) of this Act requires that employer’s contract to pay employees in a routine that characterised by consistency in “...intervals between times at which remuneration is paid…”. The Respondent is and has been effectively in breach of this provision since opting to cease payroll processing in line with the ‘fortnightly/weekly in arrears’ contracted pay interval applicable to each of the Complainants in the instant cases.

It is submitted that the purpose of this provision is to establish a statutory entitlement to a stable, transparent and rationale payment system creating a legally binding promise by the employer to issue payment to employees accordingly. If otherwise interpreted this provision along with the other specified obligations of employers set out In Section 3(1) is meaningless.

This statutory requirement is in line with and consolidates the related requirement in the earlier, Payment of Wages Act 1991, referred to later.

It is submitted that this is a principal legal entitlement of each employee, and by extension each of the individual Complainants concerned.

It is submitted that like any legally enforceable agreement fundamental change of the nature involved in the instant complaints, necessitates consultation, and agreement of the parties involved.

Collective Agreement

It will be argued that in an employment relationship, particularly in a large-scale enterprise or organisation change can legitimately be effected by means of collective agreements between employers and trades unions or excepted bodies on their behalf.

Each of the Complainants would agree with and accept this.

However, in the circumstances in which the specific complaint arises, each individual Complainant submits that this agreement and acceptance is qualified.

It is qualified on the basis that collective agreements can only be legitimate; firstly, if they do not undermine or replace individual rights established in statute or constitutional law, and critically only where collective agreements are arrived at through open and effective democratic means.

This submission is made on the basis that whilst an express term in a contract of employment, indeed the contracts of employment obtaining between the Respondent and each of the Complainants, that provides for alteration or amendment under agreements from time to time reached with representative trade unions this term can only be legitimately relied upon where an implied, and necessary, term providing each employee with access to the democratic process on a voluntary basis is adhered to.

In the instant situation each Complainant is in membership of a trade union, the IWU, which is excluded from the collective bargaining process within the Respondent’s business.

The IWU is a trades union licensed under the Trade Union Act 1941.

The Respondent’s declared position is that the IWU is not part of the Group of Unions recognised for collective bargaining purposes and there cannot participate in collective bargaining or negotiation.

The Branch representing the Network Technicians in the instant cases.

It has applied for membership of the Trade Union Group concerned, but has been declined, apparently because it is not in membership of the Irish Congress of Trades Unions (ICTU).

An IWU application for ICTU membership has been refused.

It is readily acknowledged and accepted in this scenario, that complex statutory and Constitutional issues arise which are far beyond the scope of this Adjudication process.

However, it necessary to make this point: each of the individual Complainants are excluded from access to the collective bargaining process, because of their choice of trades union, and are being required to accept outcomes that they have no opportunity to influence through the essential democratic element in collective bargaining.

It is submitted that in the specific circumstances giving rise to the individual complaints involved in the instant cases collective agreement cannot be relied upon as a defense in respect of the Section 3 breach referred to.

To emphasise this point it is worth noting that the most recent collective agreement was concluded by a ballot vote of Network Technicians by a recorded majority of 336, in a situation where 432 IWU members were excluded from the ballot.

Complaint under the Industrial Relations (Miscellaneous Provisions) Act 2004

In the first instance it is submitted that the provisions of this Act are applicable, and that each individual Complainant is entitled to have their complaint adjudicated upon per Section 9 of the Act.

This initial statement is made on the basis that each Complainant is a member of a “group…of workers...” with whom “it is not the practice of the employer to engage in collective bargaining negotiations..”, per Section 2(a) of the Act.

Section 8 (2)(c)(i) of this Act prohibits victimisation of employees “…on account of –

(i)                  The employee’s being or not being a member of a trade union or an excepted body or

(ii)                The employee’s engaging or not engaging in any activities on behalf of a trade union or an excepted body.

Section 8 (3) defines victimisation wherein it states that victimisation means; “…to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her wellbeing…”

It is an undeniable fact that deliberate delay in payment of remuneration is an “adverse effect” endured by each of the individual Complainants in the instant cases.

It is an undeniable fact that the exclusion of the Complainants from benefiting from the normal Network Technician Portfolio upgrading is an adverse effect.

It is an undeniable fact that the membership of the IWU and activity on behalf of the IWU is the basis for the adverse treatment involved.

In each instance it can be said that ‘but for’ membership of and adherence to IWU policy the individual Complainants would not be experiencing the effective withholding of remuneration on established dates/intervals in which they were and are due.

Complaint under the Payment of Wages Act 1991

In the first instance it is submitted on behalf of each of the individual Complainants that the Respondent is in breach of Section 4 of the Act.

This Section requires employers to provide statements in writing i.e., payslips which clearly show how payment is calculated in respect of gross amount due, less identifiable and authorised deductions resulting in nett payment. The concomitant requirement is that is that the statement is without ambiguity and can reasonable reconciled by the recipient employee with work performed and hours attendance.

Each Complainant will state that the delay in payments being experienced makes reconciliation difficult and, in some instances, almost impossible.

It is submitted therefore that the Respondent is in flagrant breach of Section 4 provisions.

Section 5(6)(b) is very explicit in requiring that remuneration is paid on the occasion it is due to be paid.

Each of the individual Complainants have and continue to experience delay in payments. Remuneration is not being paid when due i.e., alternately fortnightly, or weekly in arrears.

Payments are being made weeks after they are due.

This is arising, not from any error or situation outside of the control of the Respondent.

Indeed, there is evidence, as referred to, that the Respondent is actively withholding payment by instructing personnel not to process payments when due.

Section 5(6)(b) of the Act declares that the failure to pay amounts due on the occasion when due “…shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

It is an incontrovertible fact that such deduction is not authorised or consented to by any one of the individual Complainants.

The practice of not processing payments when due is, accordingly, a practice of unlawful pay deduction and again, a flagrant breach of the purpose and intention of the 1991 Act.

Summary

In summary, for the reasons stated, each individual Complainant submits that the Respondent is in breach of their statutory rights per the three Complaints now subject to Adjudication.

This breach cannot be justified and is not justifiable by reliance on any collective agreement from which these individuals are excluded in the circumstances described.

Each individual is a competent and committed professional delivering service in, at times hugely challenging circumstances, Each is fully committed to the philosophy and public purpose involved in the service they provide and maintain to communities across the country.

Each subscribes to the underpinning purpose and principles of collective bargaining, provided it is open and democratic.

Each as an individual, if they are to be bound by collective agreement, they are entitled to an implied term in their contract of employment that ensures reasonable and open access to them as members of a registered trade union.

In all of the circumstances it is submitted that each individual complaint should be adjudicated as well founded.

Accordingly, the prescribed remedies provided for in Section 7 of the 1994 Act, Section 9 of the 2004, and Section 6 of the !991 should be applied, including compensation amounts concerned.

Introduction

This submission is being made in respect of the scope of the Payment of Wages Act 1991 (the 1991 Act) and consequently the jurisdiction of the Adjudicator in deciding on the common remedy pursued by the Complainant’s listed and heard in individual Hearings as a sample group from a total number of 182 Complainants submitted to the Workplace Relations Commission for adjudication under Section 6 of the 1991 Act. All Complainant’s are in the Respondent’s employment and are members of the Independent Workers’ Union.

It is made in the context of a fundamental difference in interpretation of provisions contained in the 1991 Act, alternately expressed at hearings on June 14th and 15th, 2022 by the respective representatives listed.

In the first instance, it is understood that the Respondent’s Lead Representative contends that consideration of each Complaint is confined to contraventions of the Act in respect of any unlawful deduction(s) that might be determined by the Adjudicator (none admitted), within the six months period immediately preceding the date on which the relevant complaint was submitted for adjudication. It is contended that the provisions for remedy within the Act may only be applied retrospectively in respect of contravention(s) determined. There is no prospective application provided for.

In support of this contention the Respondent’s representative referenced an Adjudication Decision of June 2nd, 2021, ADJ-00027683 in her written submission to the Hearings on June 14th and 15th, last (Para. 5(1) refers)

ADJ-00027683

It is clear that the circumstances and the detail of the case concerned are not comparable to the cases contained in the listed Complainants currently subject to adjudication.

As stated by the Adjudicator in his Decision; “the core grievance in this case concerns the title of the post to which the complainant was initially appointed...”

Two complaints were lodged under the Payment of Wages Act 1991.

However, the Adjudicator determined that neither came within the jurisdiction of the WRC.

The determining factor distilled by the Adjudicator, was that the Complainant was paid in accordance with his contracted rate of pay in respect of the pay period referenced in the complaint. This determination took account of the special circumstances involved which resulted from the fact that the Complainant was a public servant whose terms and conditions of employment were covered by statutory provisions including emergency provisions arising from the circumstances of the Covid-19 pandemic.

While it is readily acknowledged that in reciting the ‘Summary of the Respondent’s Case’ the Adjudicator stated that;” Neither the Workplace Relations Act 2015 nor the Payment of Wages Act 1991 confer jurisdiction on the WRC to make awards in respect of “ongoing losses” and the jurisdiction of the WRC is limited to complaints in respect of alleged contraventions that have occurred prior to the submission of the complaint.”, this statement is not in any way expressly supported by the Adjudicator.

No attempt is made to justify its veracity, because, based on the basis of the Adjudicator’s

substantive decision, no need to justify this statement arose in the case concerned.

Accordingly, it is submitted that the ‘authority’ quoted is in no way conclusive or indeed persuasive in respect of the scope of remedy that may be applied in the instant cases.

It is not proposed to deal here with the other matters referred to in the Respondent’s written submission, in Paragraph 5, or otherwise.

The sole focus of this submission is the contention that any remedy determined to be due in the instant cases can only be applied in respect of deductions within the six months preceding the dates on which the Complainants’ submitted their respective complaints to the WRC.

Proper and Appropriate Interpretation : Section 6, Payment of Wages Act 1991

It is apparent that the Respondent, apart from relying on the ‘authority’ quoted, also, and perhaps substantially relies upon an interpretation of Section 6 of the 1991 Act which limits the scope of remedy/Adjudication Decision.

The only express provision contained in the 1991 Act in respect of a time limit, arises in Section 6(4).

This Section reads as follows:

“(4) 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 contravention to which the complaint relates or (in a case where a 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.”

It is submitted that the six months limit contained in this section relates directly, and exclusively, to the timeframe/time within which a complaint under this section may be presented and be admissible for adjudication.

Admissibility of such a complaint requires that the contravention complained of occurred within the within the six months window for referral.

In contrast the Respondent submits that this time limit prescribes the full extent of the period of time, and consequently the occasions within this confined period, that any unlawful deduction may be considered for remedy.

In making this submission the Respondent invites the Adjudicator to determine that even if an unlawful deduction or deductions is or are shown to have occurred since the referral of a complaint for adjudication, and regardless of whether or not the contravention cited in the complaint is ongoing, remedy may only be applied to any contravention prior to the date of referral.

Furthermore, such remedy is exclusively limited by law to any contravention which occurred during a maximum period of six months prior to referral. Remedy is exclusively retrospective.

This limitation is absurd, in the extreme.

As stated, there is no express term or provision within Section 6 or any other part of the 1991 which prescribes such a limitation.

Neither can such limitation be implied on any rational or reasonable basis.

If this position was to be adopted, it would mean that if during a process of adjudication or other process of justice in the civil courts, an unlawful act is determined to have occurred and to be occurring on an ongoing basis, the law and its application in justice should ignore its ongoing nature.

In this circumstance, and in the circumstance arising in the instant cases the Respondent could continue its practice of delaying payments due, as long as it wished, and would not be subject to its obligation under contract and under law to pay earnings due one week or fortnightly in arrears.

In effect, the Respondent could choose to delay payments due for up to six months, with impunity.

Moreover, if the complainants and/or their colleagues wished to ensure recovery of full earnings due, they would need to be both vigilant and diligent in submitting complaints to the WRC on an ongoing cycle determined by the six months limitation argued by the Respondent’s representative.

This would be entirely ludicrous and manifestly unjust in respect of the individual employees concerned. It would also give rise to an abuse of the WRC’s Adjudication Service and personnel.

In this context, it is submitted that there is no legal obstacle which would impede an Adjudication Decision in the instant cases in deciding that the Respondent, in the context of the application of provisions in the 1991 Act, should be obliged to take such action and employ such measures as may be necessary to ensure that earnings due as wages are paid to the individuals concerned on the established and expressly contracted cycle of payment; weekly/fortnightly in arrears.

Any matter of dispute or industrial conflict arising may be dealt with in accordance with good industrial relations practice facilitated as may be necessary by the WRC and / or Labour Court under Industrial Relations Acts.

The Payment of Wages Act 1991; A general Interpretation

It is submitted that there is a well established code in the application of statute law that primarily centres on its application in two modes of interpretation.

These are submitted as; (i) literal interpretation and (ii) purposive interpretation.

From the former perspective those applying statute law do so by direct reference to the wording of statute and attribute to such wording its ordinary meaning. In this situation the application of law is narrow and confined.

From the latter perspective, and in the absence of express provision, statute law is applied by distilling the intention(s) of the law makers when constructing and enacting statute law through long established processes and protocols designed for this purpose.

The Payment of Wages Act 1991 was introduced in Seanad Eireann on Thursday May 23rd, 1991 (Seanad Eireann Debates Vol.129 No.2).

The then Minister for Labour described the context and rationale for introducing the then Bill when he referred to the need to repeal the Truck Acts, which spanned the period from 1743 to 1896. The Minister in proposing the Payment of Wages Bill stated that:

“The purpose of these Acts was to stamp out abuses associated with payment of wages to manual workers in kind. They also dealt with other issues such as deductions from wages and interest charges on advances.”

He described these Acts as presenting “a major barrier to the move towards use of non-cash methods of wage payments.”, as a fundamental part of these Acts was to ensure that workers were paid in cash rather than in kind.

More relevant to the instant cases, the Minister referred to the last Truck Act which was enacted in 1896, and in doing so cited the fact that at the time of enactment; “further abuses which involved deductions made by employers from wages had become prevalent.”.

He recorded the purpose of the Bill when he stated:

“There are three basic rights enshrined in the Bill – the right of every employee to a readily negotiable mode of wage payment; protection against unlawful deductions, and the right to a written statement of wages and deductions.”.

In dealing with the issue of “unlawful deduction”, the Minister referred to Section 5 of the then Bill, and he stated this Section.

“…prohibits an employer from making a deduction from wages unless it falls within one of three categories – a deduction which is required by statute…. a deduction which is provided for in the contract of employment….a deduction to which the employee has consented in writing…. All other deductions are outlawed.”.

On Thursday June 6th, 1991, the Minister proposed the Bill to Dail Eireann and summarised its content and purpose, repeating that “The Bill enshrines three basic rights; the right of every employee to a readily negotiable mode of wage payment; the right of every employee to a written statement of wages and deductions; and protection for every employee against unlawful deductions from wages.”. (Dail Eireann Debates Vol.409 No.5)

He did not equivocate or nuance in any way the latter right;” to protection against unlawful

deductions from wages.”.

A perusal of both the Seanad Eireann and Dail Eireann debates reveals no controversy or conflict in relation to the intent to protect employees against ‘unlawful deductions’ per se.

Moreover, it is evident from the contributions to these debates that it was ‘taken as read’ that a general right to protection from unlawful deduction from wages was being embedded in law.

In fact, this Bill passed all stages in both houses of the Oireachtas, from its introduction in Seanad Eireann on May 17th, 1991, until its enactment under the signature of the President on July 23, 1991, with unqualified consensus.

It is submitted that this consensus was established based on a clear understanding of the simple intention to embed the three rights identified by the Minister and acknowledged in debate by the legislators.

Limitation on Remedy

While submitting that a clear and unambiguous right to protection from unlawful deduction was intended, it is acknowledged that some limitation with regard to remedy is appropriate. This is a principle in law well established not least in the general Statute of Limitations, but also in individual statutes wherein cause of action is and can be expressly limited in time.

It is submitted that in the Payment of Wages Act, it is in Section 6 that this precise limitation is manifest.

It is submitted that the requirement to refer matters for adjudication in a reasonably timely manner, unless exceptional circumstances arise, i.e., 6 months in respect of a contravention(s) of Section 5, sets a limitation on cause of action.

It does not otherwise set a time limit on remedy.

In a High Court case that dealt with interpreting Section 6 (4) of the 1991 Act; Alan Moran and The Employment Appeals Tribunal and The Health Service Executive [2014] IEHC 154  the purpose of establishing a time limit in respect of cause of action per this Section was referred to by the honourable Judge, wherein he stated that a compelling argument was made by one of the notice parties who submitted that the construction of Section6 (4) contended by the Appellant, “…would lead to an absurd result, whereby the relevant section would function not as a time-bar requiring complaints to be made within a reasonable time and preventing stale claims, but simply a limitation of damages clause in respect of such complaints and claims. The Notice party submits that this cannot and does not reflect the plain intention of the Oireachtas. (Para. 20)

The conclusion to be drawn from the Court’s summation on this point is that the time limit contained in Section 6(4) was intended to limit cause of action to a time period that would reasonably bar stale claims.

However no other intention or purpose can be determined other than that this Section was drafted to “…require complaints to be made reasonably promptly in order to promote the speedy and efficient dispatch of any issue that arises between the employer and an employee concerning the payment of wages.”. (Para. 20)

The Court did not consider or comment on the “limitation on damages” proposition.

It focused on the time limit in respect of cause of action on the basis that the matter in contention was considered in a Rights Commissioner’s Hearing which resulted in a ruling that the complaint was ‘out of time’ per Section 6 (4).

In summary the basis for complaint related to what was defined as ‘deductions’ from the salary of a public sector employee retrospective to September 14th, 2007. The complaint was submitted to a Rights Commissioner under the 1991 Act on May 17th, 2010, some 32 months after the first alleged unlawful deduction.

The ‘deductions’ cited were based on the non-payment of a public sector pay increase scheduled from September 14th, 2007, but not implemented because of emergency measures taken by government in respect of public sector pay against the backdrop, initially, of the absence of trade union agreement and later the enactment of emergency public finance measures prohibiting salary increases for public servants from January 1st, 2010.

At the Rights Commissioner Hearing the employer sought, as a preliminary issue, to have the complaint ruled out of time in accordance with the six months limitation on cause of action per Section 6(4). The Rights Commissioner instead proceeded to hear the case and, in his decision, ruled on the substantive issue rather than the preliminary issue. In doing so he decided that the non-application of a pay increase cited did not amount to an unlawful deduction from wages as provided for in Section 5 of the 1991.

It was left to the Employment Appeals Tribunal (EAT) to consider the preliminary issue, when the complainant lodged his appeal in respect of the Rights Commissioner’s finding.

The EAT considered whether or not it had jurisdiction to hear the appeal based on the six months’ time limitation in Section 6(4) of the 1991 Act.

The parties made oral submissions.

In the event the employee, faced with the prospect of being ruled out of time again, is noted as changing his stance from claiming unlawful deduction retrospectively to September 14th 2007 when the increase in pay claimed was scheduled for implementation, to a position in which he submitted that each failure to implement the increase concerned in each pay period since September 14th 2007 should be seen as a series of separate contraventions of the 1991, rather than as a single and continued contravention since then. Thus, submitting that the EAT had jurisdiction to consider the deduction claimed during the six months immediately preceding May 17th, 2010, when the complaint was lodged with the Rights Commissioner.

The EAT deliberated on the question of its jurisdiction by formulating an interpretation of Section 6(4) of the 1991 Act.

In the event, as recited in the High Court judgment, the EAT concluded that as the complaint lodged with the Rights Commissioner expressly referred to a contravention effectively commencing on September 14th, 2007, and as the wording of Section 6(4) was “clear and unambiguous” in respect of jurisdiction requiring that a Rights Commissioner could 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 compliant relates…”, the EAT was not permitted to hear the appeal. The employee (Appellant) could not seek to have his complaint considered from a date subsequent to the date on which the complaint was framed, as in the words of the EAT; “…it could lead to a farcical situation where a claim can never be out of time, and this was not the draftsman’s intention.” (Para. 17)

In conclusion the High Court found that it did not need to, nor would it have been appropriate to “…address, much less resolve, the issue of statutory construction presented by the appellant in order to dispose of the appeal.”. (Para. 20)

This was because the Court concluded that; “the appellant did not, as a matter of fact, present a complaint to the rights commissioner relating to a contravention of the 1991 Act alleged to have occurred on any specific date or dates within 6 months of the 17th of May 2010.”, the date on which the complaint was lodged.

The case recited, is important in reference to the instant cases before the Adjudicator, because it supports the contention that purpose of Section 6(4) was, and is, to limit in time, cause of action under the 1991 Act, in in so doing to limit the jurisdiction of the WRC in hearing complaints constructed on in a timeframe greater than 6 months prior to complaint (or 12 moths in exceptional circumstances).

In each and all of the instant cases, complaints were lodged within the 6 months ‘window’.

This case was cited in a later High Court appeal; that of the Health Service Executive and John McDermott [2014] IEHC 331.

In this case the High Court found that “…just as in the present case, the decision in Moran turned entirely on the manner in which the complaint had been formulated in that case. The claim was accordingly found to be time-barred because the complaint “related” to a time period well beyond the six months statutory period. Indeed, in the final paragraph which I have just quoted, Keane J. clearly hinted that he would have arrived at a different conclusion had the complaint been formulated differently, so that it “related” to a different time period which was not statute barred.” (Para. 26)

Mr McDermott had appealed the decision of a Rights Commissioner who ruled against him on his substantive claim after rejecting a HSE argument that the complaint was time-barred.

At the EAT the ‘in-time’ issue arose as a preliminary issue. The EAT agreed with the Rights Commissioner, that the complaint was not time-barred per Section 6(4) of the 1991 Act.

Before the EAT proceeded to address the substantive issue, the HSE, appealed the EAT ruling to the High Court, on the preliminary issue, as a point of law.

The High Court appeal was based on the HSE’s submission that because the first alleged contravention of the 1991 Act occurred significantly outside of the 6 months prior to complaint i.e., on June 1st, 2009, more than 2 years prior to complaint, the complaint was time- barred.

The Court noted the background to the 1991 Act, as a modernisation of the old law contained in the Truck Acts.

In this context, the Court specifically noted employee rights arising from the limitation on wage deductions per Section 5, and that in Section 6 of the 1991 Act the legislature had “created a new mechanism whereby these rights can be enforced.” (Para 9)

Reciting the text of Section 6(4), the Court defined the focus of appeal for consideration: “…it is the construction of these provisions – and, specifically, the meaning of the words “on the date of the contravention to which the complaint relates”- which is at issue in the present appeal.”. (Para 10)

In concluding its deliberations, the High Court relied on the language used in constructing Section 6(4), and the “plain meaning” of the words used.

Accordingly, the High Court concluded that the ‘in-time’ question is posed by this Section, and that the answer required for a complaint to come within the jurisdiction of the Act is that that the contravention or contraventions complained of were referenced within the 6 months preceding complaint. This is regardless of when any other contravention occurred at any other time. In fact, the Court stated that contraventions might have occurred over a period of years prior to a complaint being lodged. However, a complaint would be in time “

…provided that the complaint which has been presented relates to a period of six months

beginning “on the date of the contravention to which the complaint relates” ... .”

The High Court supported its conclusion and in doing so cited Denham J in the Supreme Court in Board of St Maloga National School v. Minister for Education [2010] IESC 57, [2011] 1I.R.363 .

In this citation the High Court quoted the Supreme Court Justice as stating that once there is plain meaning of the construction in statute; “There is no necessity, indeed it would be wrong to use other canons of construction to interpret sections of statute which are clear.”. (Para 18)

This is an important point in respect of the interpretation of Section 6(4) of the 1991 Act, as submitted by the Respondent in the instant cases.

This interpretation in addition to placing a time limit on cause of action presented, is also submitted as limiting the remedy available in the “…mechanism whereby rights can be enforced.” Per Section 6. This limitation on remedy is submitted as being exclusively retrospective.

No such limitation is contained in the express construction of this Section or anywhere else in the 1991 Act.

Indeed the complaint deemed ‘in-time’ per Section 6(4) in the ‘HSE and McDermott’ case was lodged with the Rights Commissioner on June 16th 2011 and referred to contravention between January 1st 2011 and June 30th, 2011 i.e. it included a prospective element.

Significantly, in Para 23 of its judgment , the High Court refers to an absurdity that might arise in the context of a situation that could arise if the HSE argument that as the contravention involved in the McDermott case commenced years in advance of the lodgement of his complaint to the Rights Commissioner it could not be entertained as ‘within-time’ under Section (6) of the 1991 and its ordinary limitation of 6 months prior to complaint.

An absurdity would arise in a situation wherein for whatever reason an employee endured an unlawful deduction over years, and because it was not complained of within the first six months of its commencement then it could continue in perpetuity without remedy.

The Court asked the rhetorical question: “Is it to be said that in those circumstances the employer should be permitted to continue these unlawful deductions every month, more or less in perpetuity, even though this result would be precisely the logical consequence of the argument now advanced by the HSE?”. (Para 23)

This is the same question that is submitted for consideration in the instant cases.

The Respondent argues that in a situation where it is decided that the complaints of unlawful deduction are deemed well founded, the only remedy that can be applied is retrospective and to a maximum of six months prior to the submission of the individual complaints is as clear an absurdity as that cited by the High Court.

The question to be answered is simple; is the Respondent asking that in the event that complaints of unlawful deduction are determined as well founded is the fact of the ongoing nature of such deduction to be ignored unless future complaints are lodged, perhaps on a rolling cycle of six months? Equally absurd would be a situation in which unlawful deductions after the date on which the instant complaints were lodged and prior to a favourable Adjudication Decision issuing, were ignored unless presented in the cycle of complaint referred to.

In Summary

It is submitted that the interpretation of Section 6(4) presented by the Respondent in respect of each of the individual complaints in the instant Hearings cannot be sustained.

The Courts have concentrated solely on the ‘within-time’ prescription contained in Section 6 which as noted is designed as a mechanism to enforce employee rights.

It is submitted that at its most basic is the right to be paid what is due, without unlawful deduction, when it is due.

In this context the intention of the legislator was clear; unlawful deduction was to be stopped, and where it already occurred, remedied within a reasonable timeframe.

No other purpose can be adduced from the construction of Section 6 of the 1991, or any other provision therein.

In the ‘Explanatory and Financial Memorandum’ which accompanied the 1991 Bill when it was published, the purpose of the Bill was set out in plain language:

It was “…to provide protection for all employees in relation to modes of wage payment and deduction from wages….and regulates the kinds of deductions and circumstances in which deduction may be made (or payments received) by employers from wages.

Moreover, it is submitted that in the recorded OIreachtas debates, limitation on remedy was not a feature, as it was assumed that unlawful deduction, like any unlawful act, once discovered, it must cease in accordance with this centrally implied and expressed function of law.

It is accordingly submitted that there is no impediment to an Adjudication Decision requiring cessation of the ongoing delaying processing wages due, as per the sworn evidence of the complainants and the acknowledging testimony of the Respondent’s management. Neither is there a prohibition in law in respect of an Adjudication Decision requiring that payment of all arrears of wages arising from the commencement of the arrears period from Payroll week number 46, 2021 to date.

Introduction

The Complainants have each lodged claims against the Respondent pursuant to (i) the Terms of Employment (Information) Act 1994, (ii) the Industrial Relations (Miscellaneous Provisions) Act 2004 and (iii) the Payment of Wages Act 1991. 

The Respondent denies the claims.

Brief Outline of relevant background

The Complainants are Network Technicians (“NTs) employed by the Respondent and they are assigned to ESB Networks, a business unit of ESB.

All ESB employees assigned to the ESB Networks business unit and engaged in the operation, maintenance and development of the electricity networks in Ireland have been placed by ESB under them management and direction of ESB Networks DAC.  ESB Networks DAC is a wholly owned subsidiary of ESB and is the licensed Distribution System Operator responsible for operating, maintaining and developing the electricity distribution system.

The Complainants have stated on the complaint forms that they are represented by the Independent Workers Union (IWU).  IWU is not a member of the ESB’s recognised Group of Unions (GOU).

The subject matter of the complaints relates to the introduction of a time recording application (MyTime) to replace a paper-based timesheet scanning system.  This process commenced in 2019 as the previous system whereby timesheets were scanned and uploaded was becoming obsolete.  The Respondent needed to introduce the MyTime to facilitate accurate and efficient payment of payroll to timesheet employees.

The MyTime App allows employees to submit digital timesheets which are used to process payments for basic wages and non-base payments such as overtime and allowances.  The App also allows employees to make a retrospective claim for non-base payments within 6 weeks from when they were incurred.  All NT’s have Apple I-Phones which they use for their work and the App can be activated on those phones or on desktop, if necessary.

The introduction of the MyTime App was communicated to all relevant employees from early 2020 and all NT staff were trained on same.  It was agreed with the accredited trade unions representing NTs that MyTime would be implemented for NTs by September 2020.  It was also agreed that once an employee was trained and activated on the MyTime App, the paper-based timesheet system would no longer be available to them.

The Respondent migrated all remaining ESB timesheet staff onto MyTime by the end of 2021 as the previous scanning system would not be supported from 2022 onwards. All employees were advised in advance that paper-based timesheets were being phased out and any employee that did not use MyTime would experience a delay in payment of non-base payments.

Three of the Complainants used MyTime but subsequently ceased using it with effect from November 2021 and submitted paper timesheets thereafter.  None of the other Complainants have used MyTime.  All of the Complainants are activated on the App but are not using same to submit timesheets.  The basic rate of pay based on a 39 hour week is processed for all employees through the MyTime App and is paid on a weekly/fortnightly basis.  For the employees who are not using the App, all other payments have to be manually inputted into the payroll system which causes a delay in payment.

Terms of Employment Information Act 1994

In the complaint forms, the Complainants state that the Respondent is trying to introduce a change to employee terms and conditions.  The introduction of the MyTime App is not a change to terms and conditions of employment but constitutes a change in a work practice.  In O’Cearbhaill & Ors v Bord Telecom [1994] ELR 54, Blaney J. considered the issue of whether an employee’s prospect of promotion was a term and condition of employment.  He considered the distinction between terms and conditions of employment and incidents of employment which are subject to change and stated:

“Would a term dealing with an employee’s prospects of promotion come into this category?  In my opinion it would not.  It does not concern the immediate relationship between the employer and employee as would, for example, the rate of pay, hours of work, length of holidays, sick leave, pension rights etc.  It relates rather to the general manager in which the employer’s business is structured and managed.  If an employer were to make it the subject of the contract of employment of individual employees he would be unable to change it without the consent of each of them.  No employer would be prepared to restrict his freedom in this way.  For this reason, it seems to me that it would be wholly inappropriate to include a prospect of promotion in a contract of employment and so it could not be considered as being a condition of service.  It is simply an incident of a person’s employment depending entirely on how the employer’s business is structured and subject to change since the employer is under no obligation not to alter the structure of his business”.

O’Cearbhaill & Ors was cited with approval by Kelly J. Rafferty v Irish Bus [1997] 2 IR 424.  Kelly J. considered whether proposed changes which would affect bus drivers were changes in conditions of employment or work practices.  Kelly J. considered Cresswell v Bord of Inland Revenue (1984) 2 ALL ER 713 and referred to the Judge’s view in that case stating:

“an employee does not have a vested right to preserve his working obligations completely unchanged as from the moment he first began work.  Rather an employee is expected to adapt himself to new methods and techniques introduced in the course of his employment.  I agree.  The effect of the Board’s computerised system was not that the Plaintiffs would be doing a different job but merely that they would be doing recognisably the same job in a different way.  That judge was of the view that the content of some of the jobs might be considerably affected but nonetheless it would not be altered enough to fall outside the original description of the Plaintiff’s proper functions since it could not be said that staff using the computerised system would be anything other than tax officers working for the PAYE Scheme”.

On the facts in Rafferty, Kelly J held that the alterations which Irish Bus sought to effect amounted to a change in work practice rather than a change in conditions of service.  In this case, the Complainants remain employed as NTs and must adapt to certain efficiencies introduced by the Respondent.  The change is not even a significant change to general work practices but a relatively minor change which requires employees to submit digital timesheets via an App.

In any event, a change in a timesheet process on foot of the introduction of the MyTime App is not a change which comes within the provisions of the 1994 Act.  Section 5(1) of the 1994 Act provides:

5. (1) subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

a)      1 month after the change takes effect, or

b)      Where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

The written statement of terms and conditions which must be provided pursuant to Section 3 or Section 6 (on request) of the 1994 Act do not encompass details about how an employee’s timesheet shall be processed.  Accordingly, any change in that process does not require notification pursuant to the 1994 Act and there has been no breach of the 1994 Act.

Further, the introduction of new technology is provided for in Section 5 and 6 of the PPC Agreement which was agreed with the GOU representing the NT category.  Significantly, the NT staff are already using other forms of technology and in particular Apps such as MySiteFinder or MySafetyPass which was introduced on foot of the PPC Agreement.  There is no requirement to obtain individual employee consent in writing where a change occurs on foot of a collective agreement and Section 5(2) of the 1994 provides as follows:

(2) subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute other than a registered employment agreement or employment regulation order or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

In Field-Jennings v South West Doctors on Call PW14/2011, a more significant issue involving a reduction in wages was held to be valid absent individual consent in writing.  In that case consent by SIPTU was held to bind individual employees despite the fact that they had not provided individual consent in writing and the fact that they were not members of the Union.

While there is no obligation to do so, historically ESB has engaged in negotiation and agreement with GOU together with communication to all employees regarding changes to work practices as opposed to simply introducing those changes.  In this case, the introduction of the MyTime App was communicated to staff from early 2020 and all NT staff were trained on the new App as set out above.

Contrary to the statements by the Complainants, the introduction of MyTime was not dependent on the acceptance of the “Building Better Climate” proposals which had not been agreed when MyTime App was introduced.  The introduction of the MyTime App was agreed with GOU and was covered by the PPC Agreement.  The “Building Better Climate” Agreement was approved in March 2022 and endorses what was already agreed regarding the introduction of new technology.

Industrial Relations (Miscellaneous Provisions) Act 2004

The Complainants have lodged complaints pursuant to Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004 alleging a contravention of Section 8 of the 2004 Act which prohibits victimisation and provides as follows:

8. (1) This section applies where it is not the practice of the employer to engage in collective bargaining and the internal dispute resolution procedures (if any) normally used by the parties concerned have failed to resolve the dispute and –

(a) a trade union takes steps to invoke the procedures under the Code of Practice on Voluntary Dispute Resolution under section 42 of the Industrial Relations Act 1990 (or any code of practice amending or replacing that code) in relation to a trade dispute, or

(b) such procedures have been invoked by a trade union in relation to a trade dispute, or

(c) an employee intends to request the trade union of which the employee is a member to make a request under section 2 of the Act of 2001 in relation to a trade dispute, or a trade union intends to make such a request, or

(d) such a request by a trade union has been made but the Court determines that the requirements specified in that section for the carrying out of an investigation of the trade dispute have not been met, or

(e) the Court determines that those requirements have been met and either –

(i) that investigation is being or has been carried out, or

(ii) any other procedure under the Act of 2001 consequent on or subsequent to that investigation is being or has been carried out.

It is the practice of the Respondent to engage in collective bargaining but the IWU is not a member of GOU and the Respondent is not required to engage in collective bargaining with IWU.  Further, the internal dispute resolution procedures have not been invoked or exhausted by all of the Complaints.  The Complainant failed to invoke the Respondent’s internal procedures.

The Complainants allege that the Respondent has victimised them and others who are members of the IWU.  They refer to the IWU as forming the largest group of NTs organised under a trade union which is disputed by the Respondent.  The Complainants allege that they are being victimised because they are members of a trade union that the Respondent “does not prefer”.  This is incorrect.  All timesheet employees were informed in advance of the introduction of the MyTime App and all employees, irrespective of union membership, were informed that continued use of paper timesheets would result in delay to payments of non-base payments.  The continued manual processing of paper timesheets operates in the same way for all employees, irrespective of union membership, and results in periods of delay in payments to all such employees.

The allegations made by the Complainants do not fall within the definition of victimisation in Section 8 of the 2004 Act or the Code of Practice.  Section 8 (3) provides as follows:

(3) In this section “victimise” in relation to an employee, means to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her wellbeing and includes any act specified in a code of practice, prepared under section 42 of the Industrial Relations Act 1990 in relation to conduct prohibited by this section, to be an act falling within the foregoing expression but does not include any act constituting a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001.

The Industrial Relations Act 1990, Code of Practice on Victimisation (SI 463 of 2015) refers to examples of unfair or adverse treatment as follows:

“Examples of unfair or adverse treatment (whether acts of commission or omission) that cannot be justified on objective grounds may in the above contexts include an employee suffering any unfavourable change in his/her conditions of employment or acts that adversely affect the interest of the employee (including any adverse effect arising from the employee refusing an inducement (financial or otherwise) designed specifically to have the employee forego collective representation by a trade union); action detrimental to the interest of an employee no wishing to engage in trade union activity, or the impeding of a manager in the discharge of his/her managerial functions”.

The introduction of the MyTime App is not a change in terms and conditions of employment, its introduction can be justified on objective grounds and all employees who are not using the MyTime App have been treated in the same way, irrespective of union membership.

Payment of Wages

There is no prospective power under the Payment of Wages Act 1991 (“the 1991 Act”) (A Public Servant v A Public Authority ADJ-000027683, 2 June 2021) and each claim is for a period retrospective to the date the complaint form was received by the WRC.  The retrospective period is limited to a period of six months prior to the relevant complaint having been lodged as set out in Section 41(6) of the Workplace Relations Act 2015.

In each case, the claims lodged by the Complainants have been paid by the Respondent.

Apart from the fact that the sums claimed have been or will be paid in a matter of days, the claim on foot of a delayed payment is not an unlawful deduction within the meaning of the 1991 Act.  The 1991 Act sets out the definition of 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, and

b)      Any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

In assessing a claim under the 1991 Act, it is necessary to consider the provisions of Section 5(6) which provides as follows:

(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 there from 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 correct approach to a claim under the 1991 Act was addressed in Balans v Tesco Ireland Limited [2020] IEHC55.  In that case, McGrath J. considered the decision of Finnegan P. in Dunnes Stores (Cornelscourt) Limited v Lacey [2007] 1 I.R.478 and Hunt J in Babianskas v First Glass Ltd [206] IEHC 598 and concluded that the Court must first consider whether wages are properly payable under the 1991 Act.  He stated:

“I have considered the reasoning of Hunt J, and in my view, there is nothing in this judgment which detracts from what was stated by Finnegan J, in Lacey or inconsistent with the approach which the Labour Court stated it was taking in this case, namely that to ground the claim under the Act of 1991 wages must be properly payable.  Thus, in my view, there is nothing incorrect in this approach.   It seems to me, however, that where the difficulty arises is that the Labour Court, rather than making the necessary assessment of wages properly payable under the Act of 1991 proceeded to perhaps unwittingly conflate that issue with the separate issue of whether there had been a deduction and whether that deduction came within the exception governed by s. 5(6).  In so doing, in the opinion of this court, the Labour Court fell into error in failing to appropriately assess the wages properly payable to the appellant within the meaning of the Act of 1991”.

In this case, the rates of pay properly payable to the Complainants and referable to their employment (as defined in the 1991 Act) are the rates negotiated with the representative unions and the agreed pay methods in place.  The new work practice on foot of the introduction of the MyTime App is applicable to all NTs.  Further the introduction of new work practices and terms/conditions of employment are covered by collective agreements.  ESB does not and has not negotiated variations in contracts on an individual basis.  The variation of employment contracts by collective agreement has operated for a long number of years and in many instances to the benefit of individual NTs.

The correct approach in considering wages “properly payable” was addressed by the Labour Court in Balans case ({2021] 9 JIEC 2701) when it was remitted to the Labour Court after the High Court decision.  The Labour Court stated:

“The Court has regard to the terms of s.1 of the Act in its definition of “wages” set out above.  It seems to the Court that if the Oireachtas had intended that the terms of a contract were the only factors to be taken into account when determining what is “properly payable” then this would have been reflected in the definition of wages set out in s.1.  However, that definition covers all factors referable to the employment and takes account of the contract “or otherwise”.

It is not necessary for the Court to deliberate on the potential consequences for future relations in the employment of such a narrow approach to the application of the Act as it is clear to the Court that what is “properly payable” has to be determined by the totality of circumstances referable to the employment.  In this regard, a collective agreement in 2009 provided for a rate of pay to apply to all members of the category of worker in the employment to which the Complainant belonged.

The agreement provided for an exception only in respect of some employees in employment prior to the agreement.  Of course, collective agreements are not, themselves, binding legal contracts.  However, it is of significance that the Complainant’s contract, itself, provides that he is bound by collective agreements applicable to him”.

It is appropriate to have regard to the totality of the circumstances to assess what wages are properly payable to NTs including the Complainants.  The NTs are in receipt of their basic wage on a weekly/fortnightly basis and non-base payments are properly payable to employees in accordance with the submission of digital timesheet on the MyTime App.  The Complainants do not have an entitlement to receive non-base payments on submission of paper timesheets at the same time as those by submitting digital timesheets in the manner agreed.  The non-base payments are properly made the Complainants when the paper timesheets are manually processed.  There have been no unlawful deductions within the meaning of the 1991 Act.

INTRODUCTION

The within submissions are furnished in response to the written submissions furnished on behalf of the Complainants in relation to their complaints made pursuant to Section 5 of the Payment of Wages Act 1991 (‘the 1991 Act'). In their submissions, the Complainants assert that the scope of the 1991 Act is such that the Adjudication Officer (‘AO’) has a prospective jurisdiction to award redress in respect of alleged deductions which occurred after the complaints were lodged.

As set out in the Respondent’s previous submissions, and set out in further detail below, this interpretation is in the absence of any provision/text within the 1991 Act itself to provide for a prospective jurisdiction and this interpretation runs contrary to previous determinations of the Workplace Relations Commission and case law of the Superior Courts and is inconsistent with the application of and function of the relevant legislation.

Accordingly, the Respondent submits that consideration of each Complaint is confined to contraventions of the 1991 Act in respect of unlawful deduction(s), which are denied, within the six months period immediately preceding the date on which the relevant complaint was submitted for adjudication. No issue regarding an extension of time arises on the facts.

LEGAL SUBMISSIONS

Relevant Statutory Provisions

In the submissions dated 3 July 2022, the Complainants rely on Section 6(4) of the 1991 Act. Since 2015, Section 6(4) was repealed by Section 52(1) and Schedule 7, Part 1 of the Workplace Relations Act 2015. Accordingly, the initial premise of the Complainant’s argument relies on a provision that is no longer in force.

Section 6(4) of the 1991 Act previously provided: -

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.

Section 6 now provides in full:

(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—

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

(2)         (a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.

(b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment.

Section 6 of the 1991 Act, as amended, no longer refers to the relevant time limit for bringing a complaint but it expressly provides that the decision of the AO is in relation to ‘a complaint’ of a contravention of Section 5 of the Act and refers to compensation where the complaint is well-founded.

The relevant time limits are now provided for in Sections 41(6) and (8) of the Workplace Relations Act 2015 (‘the 2015 Act’) which provide:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. […]

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Literal Interpretation

Plainly, from an examination of the relevant provisions of the 1991 Act and the 2015 Act, there is no provision or text which supports the argument that an AO has a prospective jurisdiction under the 1991 Act. There is no stateable basis for the position that an AO enjoys such a power. Rather, on the literal interpretation of the relevant provisions, the AO has a defined jurisdiction retrospective to the date of the complaint.

Section 6 of the 1991 Act and Section 41 of the 2015 Act are vesting provisions that provide the AO with their jurisdiction ratione temporae – the temporal scope – in relation to the ratione materiae – the material scope – of contraventions of Section 5 of the 1991 Act. Sections 6 and 41provide a temporal scope of six months in relation to the bringing of a complaint and to the examination of the material scope of complaints of alleged deductions/payment within that six month period. The provisions clearly set out the parameters of the AO’s statutory powers.

There is no basis for the contention that the jurisdiction extends beyond this and, in essence, the Complainants’ submission is that the temporal jurisdiction should be separated from the material jurisdiction, and that there is an effectively unlimited scope for an AO to award compensation.

1.       Section 6(1) of the 1991 Act expressly refers to a decision that “in relation to a complaint of a contravention of section 5”. The plain meaning of this provision is that an AO must make a decision in relation to the complaint and not matters which post-date the complaint. Section 6(1) goes on to expressly provide that AO may direct compensation where ‘the complaint is, in whole or in part, well founded as respects the deduction or payment…’. Again, it is clear that the AO must determine if the complaint itself is well-founded and the AO has no power to determine subsequent complaints which post-date the complaint under consideration. There is aclear and logical connection between the employee’s complaint in relation to a deduction and the compensation that the AO can direct.

The ‘look back’ period covered by a complaint of unlawful deductions under the 1991 Act is also reflected in the express wording regarding compensation which may be directed and Section 6(1) refers ‘the net amount of the wages …….that would have been paid to the employee in respect of the week immediately preceding the date of the deduction.”

At page 4 of the submissions, the Complainants refer to the process in civil courts and the position with ongoing obligations under a contract of employment. These matters are separate to and irrelevant for the purpose of considering defined statutory rights under the 1991 Act and the specific jurisdiction of an AO. At page 4 of the submissions, the Complainants assert that there is ‘no legal obstacle’ to the AO directing the Respondent to take such action/employ such measures as are necessary to ongoing ensure due as wages are paid to employees. This assertion is without foundation and in fact, an AO is not ‘at large’ in respect of the directions that can be given on foot of complaints under the 1991 Act. The jurisdiction of an AO is expressly set out in Section 6(1) of the 1991 Act and as set out above, the compensation that an AO can direct is limited to the complaint made and not matters which post-date the complaint.

At pages 5 and 6 of the submissions, the Complainants appear to argue that a purposive approach in interpreting the 1991 supports a prospective jurisdiction in respect of deductions which post-date a complaint. However, the Interpretation Act 2005 provides that it is only where a provision is obscure or ambiguous or where the literal interpretation would be absurd, that the intention of the legislature falls to be considered. Section 5 of the Interpretation Act 2005 provides:

(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

              (a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or

(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

In this case, the plain meaning of the 1991 Act is clear and there is an express link between the complaint made and the compensation that can be awarded. If the legislature had intended to create a prospective jurisdiction in respect of matters which arise after a complaint is lodged, it could have done so. The relevant statutory provisions are completely silent in this regard. Significantly, the Complainants do not even attempt to set out what limits apply to the prospective jurisdiction they maintain exists. Can an AO award compensation for alleged deductions after the complaint but up to the first date of the hearing? Can an AO award compensation for alleged deductions up to any subsequent dates for hearing? Can an AO award compensation for deductions up to the date of determination although no evidence will be heard regarding any alleged deductions between the completion of the hearings and the determination? It appears from the final line of the submissions that the Complainants are seeking payment in respect of alleged deductions post the complaint and up to the date of the submissions on 3 July 2022. There is no credible basis for this assertion.

If the Complainants interpretation were to be applied, this would have the effect of rendering the time limits within which a complaint could be made completely redundant. A Complainant could decide to lodge a complaint immediately after a deduction first occurred and could still maintain a claim for ongoing deductions post-complaint or alternatively, a Complainant could lodge a complaint after six months and still maintain a claim for ongoing deductions post-complaint. The clear rationale of time limitations is to provide a degree of certainty to both complainants and respondents. The Complainant’s stated position would undermine that completely.

Relevant case law

Despite the frequency with which claims under the Payment of Wages Act 1991 come before the WRC, the Complainants have not referred to a single case where compensation was awarded in respect of deductions which occurred after a complaint was lodged.

It was argued by the Respondent in A Public Servant v A Public Authority ADJ-00027683 that neither the Workplace Relations Act 2015 nor the Payment of Wages Act 1991 confer jurisdiction on the WRC to make awards in respect of ongoing losses or prospective loss and the jurisdiction of the WRC is limited to complaints in respect of alleged contraventions that have occurred prior to the submission of the complaint. While it is accepted that the AO in that case did not expressly determine that issue, it is of note that it was not contradicted.

It is clear from the decision of Hogan J in McDermott v Health Service Executive [2014] IEHC 331 at [16]-[17] that a complaint is limited to deductions within a six month period. Hogan J. stated:-

 16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.

17. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way.

The framing of the complaint is a matter for a Complainant – he/she is responsible for determining whether or when they wish to lodge a complaint and it is this complaint that then provides an AO with jurisdiction over the relevant period. Should a complainant wish to make a complaint in relation to further deductions, they may do so. If a complaint arises relating to deductions that post-date an initial complaint, then the rationale of the decision in McDermott is very clear – such deductions would require further complaints to the WRC.

In McDermott, Hogan J. referred to rights in relation to unlawful deductions and stated that Section 6 of the 1991 Act ‘creates a new mechanism whereby these rights can be enforced’. The express wording of Section 6, as amended, must be considered because it sets out the mechanism to enforce the relevant rights and Section 6(1), as amended, links the redress available to the complaint made.

The issue of an Act being silent on a point of jurisdiction was also addressed by Hogan J. in McDermott regarding the start date of the limitation period and he stated that ‘as the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided’. In this case, if the Oireachtas intended that the jurisdiction to consider deductions would extend to post-complaint deductions, it could easily have so provided.

As set out by the notice party in Moran v Employment Appeals Tribunal [2014] IEHC 154 (Keane J) at [20], the six month period is to “require complaints to be made reasonably promptly in order to promote the speedy and efficient dispatch of any issue that arises between an employer and an employee concerning the payment of wages.” This is exactly the purpose of the provisions, which the Complainant’s interpretation would defeat.

While in that case Keane J did not need to determine the construction of section 6(4), he did describe as “compelling” the notice party’s interpretation that the construction contended for by the appellant would lead to an absurd result. In that case, the appellant sought to argue that regardless of the date upon which any complaint in relation to the amount of wages to an employee arises, the employee concerned can complain on any subsequent occasion on which he or she is paid wages (however long afterwards that may be), as long as the initial complaint is made within 6 months of each such payment.

To apply the Complainants interpretation would lead to an absurdity in the functioning of the statutory provisions and have the effect of allowing a Complainant to receive compensation in relation to conduct arising post-complaint. To allow this would be fundamentally unfair and could lead to Respondents being ambushed with issues that arose subsequent to the complaint and which they had no notice of.

Following this interpretation would in essence allow the complainants to amend the temporal scope of their complaint, after having made it. As per Elsatrans Ltd v Joseph Tom Murray PWD1917, the WRC’s jurisdiction, and the Labour Court’s on appeal, derives from there being a decision at first instance in relation to a precisely stated statutory complaint referred to an AO. There is no jurisdiction to permit a Complainant to amend, at the appellate stage, the original complaint referred at first instance to the WRC. Accordingly, the initial complaint lodged determines the applicable jurisdiction.

CONCLUSION

For all of the reasons above, the Respondent submits that, in accordance with the relevant legislative provisions and the decisions referred to, consideration of each Complaint is confined to unlawful deduction(s), within six months period immediately preceding the date on which the relevant complaint was submitted for adjudication and the AO’s jurisdiction in relation to compensation is linked to the complaint made.

The Respondent submits that in this case, without prejudice to its submission that a delay in payment is not a deduction within the meaning of the 1991 Act, all payments due to the Complainants in the relevant six month period prior to the lodging of the complaints have been made. The Complainants have not given any evidence of deductions within the relevant six month time period which remain due and accordingly the complaints pursuant to the provisions of the 1991 Act are not well-founded.

Representative for the Complainant maintains that each of the ten individual Complainants have attempted to address the penalisation involved through the medium of the Respondent’s Grievance Procedure.

The Respondent has no record of this complainant invoking the internal dispute resolution procedures.

CA – 00048968 – 001 – complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

Representative for the Complainant has submitted on behalf of each individual Complainant that the Respondent is not entitled to unilaterally alter any fundamental term in their contract of employment without consultation, agreement and formal consent when required.

In reply the representative for the Respondent has stated the following:

In the complaint forms, the Complainants state that the Respondent is trying to introduce a change to employee terms and conditions.  The introduction of the MyTime App is not a change to terms and conditions of employment but constitutes a change in a work practice.  In O’Cearbhaill & Ors v Bord Telecom [1994] ELR 54, Blaney J. considered the issue of whether an employee’s prospect of promotion was a term and condition of employment.  He considered the distinction between terms and conditions of employment and incidents of employment which are subject to change and stated:

“Would a term dealing with an employee’s prospects of promotion come into this category?  In my opinion it would not.  It does not concern the immediate relationship between the employer and employee as would, for example, the rate of pay, hours of work, length of holidays, sick leave, pension rights etc.  It relates rather to the general manager in which the employer’s business is structured and managed.  If an employer were to make it the subject of the contract of employment of individual employees, he would be unable to change it without the consent of each of them.  No employer would be prepared to restrict his freedom in this way.  For this reason, it seems to me that it would be wholly inappropriate to include a prospect of promotion in a contract of employment and so it could not be considered as being a condition of service.  It is simply an incident of a person’s employment depending entirely on how the employer’s business is structured and subject to change since the employer is under no obligation not to alter the structure of his business”.

O’Cearbhaill & Ors was cited with approval by Kelly J. Rafferty v Irish Bus [1997] 2 IR 424.  Kelly J. considered whether proposed changes which would affect bus drivers were changes in conditions of employment or work practices.  Kelly J. considered Cresswell v Bord of Inland Revenue (1984) 2 ALL ER 713 and referred to the Judge’s view in that case stating:

“an employee does not have a vested right to preserve his working obligations completely unchanged as from the moment he first began work.  Rather an employee is expected to adapt himself to new methods and techniques introduced in the course of his employment.  I agree.  The effect of the Board’s computerised system was not that the Plaintiffs would be doing a different job but merely that they would be doing recognisably the same job in a different way.  That judge was of the view that the content of some of the jobs might be considerably affected but nonetheless it would not be altered enough to fall outside the original description of the Plaintiff’s proper functions since it could not be said that staff using the computerised system would be anything other than tax officers working for the PAYE Scheme”.

On the facts in Rafferty, Kelly J held that the alterations which Irish Bus sought to effect amounted to a change in work practice rather than a change in conditions of service.  In this case, the Complainants remain employed as NTs and must adapt to certain efficiencies introduced by the Respondent.  The change is not even a significant change to general work practices but a relatively minor change which requires employees to submit digital timesheets via an App.

The Terms of Employment (Information) Act 1994 is the transposition of Directive 91/533/EEC introduced on 14th October 1991. The effective date of the introduction of the Terms of Employment (Information) Act was 5th April 1994.

On reading Directive 91/533/EEC, Article 2 reads as follows:

Obligation to provide information

1.       An employer shall be obliged to notify an employee to whom this Directive applies, hereinafter referred to as “the employee” of the essential aspects of the contract or employment relationship.

2.       The information referred to in paragraph 1 shall cover at least the following:

a)       The identities of the parties;

b)      The place of work; where there is no fixed or main place of work, the principle that the employee is employed at various places and the registered place of business or, where appropriate, the domicile of the employer;

c)       i) the title, grade, nature or category of the work for which the employee is employed; or

ii) a brief specification or description of the work;

d)      the date of commencement of the contract or employment relationship;

e)      in the case of a temporary contract of employment relationship, the expected duration thereof;

f)        the amount of paid leave to which the employee is entitled or, where this cannot be indicated when the information is given, the procedures for allocating and determining such leave;

g)       the length of the periods of notice to be observed by the employer and the employee should their contract or employment relationship be terminated or, where this cannot be indicated when the information is given, the method for determining such periods of notice;

h)      the initial basic amount, the other component elements and the frequency of payment of the remuneration to which the employee is entitled;

i)        the length of the employee’s normal working day or week;

j)        where appropriate;

i)                    the collective agreements governing the employee’s conditions of work; or

ii)                   in the case of collective agreements concluded outside the business by special joint bodies or institutions, the name of the competent body or joint institution within which the agreements were concluded.

3.       The information referred to in paragraph 2 f), g), h) and i) may, where appropriate, be given in the form of a reference to the laws, regulations and administrative or statutory provisions or collective agreements governing those particular points.

The introduction of new technology is provided for in Section 5 and 6 of the PPC Agreement which was agreed with the GOU representing the NT category.  Significantly, the NT staff are already using other forms of technology and in particular Apps such as MySiteFinder or MySafetyPass which was introduced on foot of the PPC Agreement.  There is no requirement to obtain individual employee consent in writing where a change occurs on foot of a collective agreement and Section 5(2) of the 1994 provides as follows:

(2) subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute other than a registered employment agreement or employment regulation order or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

In Field-Jennings v South West Doctors on Call PW14/2011, a more significant issue involving a reduction in wages was held to be valid absent individual consent in writing.  In that case consent by SIPTU was held to bind individual employees despite the fact that they had not provided individual consent in writing and the fact that they were not members of the Union.

Having considered the complaint I am satisfied that the Complainant’s term and conditions have not been changed unilaterally. What has been changed are the work practices. The complaint as presented is not well found.

CA – 00048968 – 002 – complaint submitted under section 9 of the Industrial Relations  (Miscellaneous Provisions) Act 2004.

The representative for the Complainant contends that victimisation has taken place contrary to section 8 of the Act. Section 8 reads as follows:

Section 8 (2)(c)(i) of this Act prohibits victimisation of employees “…on account of –

(iii)              The employee’s being or not being a member of a trade union or an excepted body or

(iv)              The employee’s engaging or not engaging in any activities on behalf of a trade union or an excepted body.

Section 8 (3) defines victimisation wherein it states that victimisation means; “…to do any act (whether of commission or omission) that, on objective grounds, adversely affects the interests of the employee or his or her wellbeing…”

It is an undeniable fact that deliberate delay in payment of remuneration is an “adverse effect” endured by each of the individual Complainants in the instant cases.

It is an undeniable fact that the exclusion of the Complainants from benefiting from the normal Network Technician Portfolio upgrading is an adverse effect.

It is an undeniable fact that the membership of the IWU and activity on behalf of the IWU is the basis for the adverse treatment involved.

In each instance it can be said that ‘but for’ membership of and adherence to IWU policy the individual Complainants would not be experiencing the effective withholding of remuneration on established dates/intervals in which they were and are due.

As per complaint form submitted to the WRC the Complainant has itemised his complaint as follows:

“I believe that by deliberately delaying payment of allowances and overtime and paying only a flat week which causes financial duress, my employer is victimizing me and my colleagues who are members of the Independent Workers Union and who oppose acceptance of a change to our terms and conditions of employment – the use of MyTime App, which was not consulted with us, and our prior acceptance was not sought by the company. Through our trade union we previously asked our employer to be treated fairly and reasonably by being consulted on matters regarding our employment. We form the largest group within the Network Technician category organized by a trade union. Unfortunately, our employer does not wish to discuss anything with us or our trade union, deals only with trade union officials of their own group of unions who rejected our union’s application to join them, imposes changes to our terms and conditions and now is victimizing us because we are members of a trade union that our employer does not prefer”.

It is my understanding that there are over 400 employees who are members of the Independent Workers Union. If this is so, there are many IWU members who are currently using the MyTime App and receiving their payments in a timelier fashion. Equally so there are employees, who are not members of IWU, not using the MyTime App who are experiencing the delays in payments.

It cannot be said by the Complainant that any delays in his payment are due to his membership of the Independent Workers Union. The delays are due to the refusal by the Complainant to use the MyTime App. There is therefore no causal link with delayed payment and IWU membership. This is not victimisation as claimed by the Complainant and his representative.

CA – 00048968 – 003 – complaint submitted under s.6 of the Payment of Wages Act, 1991.

As per complaint form submitted to the WRC the Complainant has itemised his complaint as follows:

“Payment of my allowances and/or overtime is being deliberately delayed because I refused acceptance of a change to my terms and conditions of employment. I consider this to be an unlawful deduction from my wages”.

Post hearing the representatives of both the Complainant and Respondent made substantial written submissions on the Payment of Wages Act, 1991. These submissions have been comprehensively summarised above.

The representative for the Complainant has stated the following:

In making this submission the Respondent invites the Adjudicator to determine that even if an unlawful deduction or deductions is or are shown to have occurred since the referral of a complaint for adjudication, and regardless of whether or not the contravention cited in the complaint isongoing, remedy may only be applied to any contravention prior to the date of referral.

Furthermore, such remedy is exclusively limited by law to any contravention which occurred during a maximum period of six months prior to referral. Remedy is exclusively retrospective.

This limitation is absurd, in the extreme.

As stated, there is no express term or provision within Section 6 or any other part of the 1991 which prescribes such a limitation.

Neither can such limitation be implied on any rational or reasonable basis.

If this position was to be adopted, it would mean that if during a process of adjudication or other process of justice in the civil courts, an unlawful act is determined to have occurred and to be occurring on an ongoing basis, the law and its application in justice should ignore its ongoing nature.

In this circumstance, and in the circumstance arising in the instant cases the Respondent could continue its practice of delaying payments due, as long as it wished, and would not be subject to its obligation under contract and under law to pay earnings due one week or fortnightly in arrears.

In effect, the Respondent could choose to delay payments due for up to six months, with impunity.

Moreover, if the complainants and/or their colleagues wished to ensure recovery of full earnings due, they would need to be both vigilant and diligent in submitting complaints to the WRC on an ongoing cycle determined by the six months limitation argued by the Respondent’s representative.

This would be entirely ludicrous and manifestly unjust in respect of the individual employees concerned. It would also give rise to an abuse of the WRC’s Adjudication Service and personnel.

In this context, it is submitted that there is no legal obstacle which would impede an Adjudication Decision in the instant cases in deciding that the Respondent, in the context of the application of provisions in the 1991 Act, should be obliged to take such action and employ such measures as may be necessary to ensure that earnings due as wages are paid to the individuals concerned on the established and expressly contracted cycle of payment; weekly/fortnightly in arrears.

On the same subject the Respondent has stated:

Plainly, from an examination of the relevant provisions of the 1991 Act and the 2015 Act, there is no provision or text which supports the argument that an AO has a prospective jurisdiction under the 1991 Act. There is no stateable basis for the position that an AO enjoys such a power. Rather, on the literal interpretation of the relevant provisions, the AO has a defined jurisdiction retrospective to the date of the complaint.

Section 6 of the 1991 Act and Section 41 of the 2015 Act are vesting provisions that provide the AO with their jurisdiction ratione temporae – the temporal scope – in relation to the ratione materiae – the material scope – of contraventions of Section 5 of the 1991 Act. Sections 6 and 41provide a temporal scope of six months in relation to the bringing of a complaint and to the examination of the material scope of complaints of alleged deductions/payment within that six-month period. The provisions clearly set out the parameters of the AO’s statutory powers.

There is no basis for the contention that the jurisdiction extends beyond this, and, in essence, the Complainants’ submission is that the temporal jurisdiction should be separated from the material jurisdiction, and that there is an effectively unlimited scope for an AO to award compensation.

Section 6(1) of the 1991 Act expressly refers to a decision that “in relation to a complaint of a contravention of section 5”. The plain meaning of this provision is that an AO must make a decision in relation to the complaint and not matters which post-date the complaint. Section 6(1) goes on to expressly provide that AO may direct compensation where ‘the complaint is, in whole or in part, well founded as respects the deduction or payment…’. Again, it is clear that the AO must determine if the complaint itself is well-founded and the AO has no power to determine subsequent complaints which post-date the complaint under consideration. There is a clear and logical connection between the employee’s complaint in relation to a deduction and the compensation that the AO can direct.

In the initial submission the Respondent representative quite clearly stated the following:

There is no prospective power under the Payment of Wages Act 1991 (“the 1991 Act”) (A Public Servant v A Public Authority ADJ-000027683, 2 June 2021) and each claim is for a period retrospective to the date the complaint form was received by the WRC.  The retrospective period is limited to a period of six months prior to the relevant complaint having been lodged as set out in Section 41(6) of the Workplace Relations Act 2015.

In deciding this issue, I find impossible to disagree with this. In the instant complaint the only period I can consider is the six-month period ending on the date the complaint was received by the Workplace Relations Commission.

The Complainant is due to receive a payment of €4,567.25 on 17th June 2022.

The payment was delayed, this does not amount to an unlawful deduction. This complaint is not well founded.

CA – 00048968 – 001 – complaint submitted under section 7 of the Terms of Employment (Information) Act, 1994.

The complaint is not well-founded.

CA – 00048968 – 002 – complaint submitted under section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004.

The complaint is not well-founded.

CA – 00048968 – 003 – complaint submitted under s.6 of the Payment of Wages Act, 1991.

The Complaint is not well-founded