Complainant

Respondent

Parties

John  Kilmartin

Rasaiocht Con Eireann / Greyhound Racing Ireland

Representatives

Deirdre Canty SIPTU

Gillian Briody HR Duo

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042249-001

01/02/2021

The Complainant has been employed by the Respondent, a national sports body, on a full-time basis, in the role of Groundsman, at one of their regional stadiums, since May 2005.

The Respondent’s stadium, at which the Complainant works, normally operates two evenings per week, Friday and Saturday. However, each summer during the week leading up to the August Bank Holiday, the Respondent operates on a number of additional week-day evenings, in order to capitalise on the presence of large crowds in the area in conjunction with an annual festival of sporting activities taking place that week.

The Complainant, in conjunction with other employees of the Respondent, receives additional remuneration for that week in the form of double time for full time staff and time and a half for part time staff.

In summer of 2020, due to the impact of COVID-19, the Respondent did not operate any additional week-day evenings, staff were not required to work and they did not receive any additional remuneration.

The Complainant’s Trade Union raised this matter with the Respondent and, not having received a satisfactory response submitted a complaint to the WRC, under section 6 of the Payment of Wages Act, 1991.

That complaint is the subject matter of this adjudication.

Background:

According to submission made on behalf of the Complainant, he has been receiving double time for the additional work carried out during this particular week each summer from the commencement of his employment with the Respondent. However, it was submitted that he was not paid his contractual weekly wage, of 39 hours per week at double time, for that week in 2020.

It was submitted on behalf of the Complainant that, as there was no provision in his contract of employment to reduce his weekly wages, he initially raised the issue with his line manager and having received no satisfactory response, he then contacted his Trade Union representative.

The Complainant’s Trade Union representative stated that the Respondent’s position was that, due to the significant reduction in business activity as a result of the pandemic, their objective throughout this challenging period was to maintain employees’ average pay. As a result of the Respondent's response, the matter was referred to the WRC.

Complainant’s Arguments:

According to the submissions made on behalf of the Complainant, by his Trade Union representative, the Respondent’s failure to pay him €600.00, in respect to the week in question in 2020, represents an unlawful deduction as per Section 5 of the Payment of Wages Act. It was further stated on behalf of the Complainant that the deduction was not required to be made by virtue of statute or any instrument under any statute.

In addition, it was submitted on behalf of the Complainant that there is no contractual term in the contract of employment that allows for this deduction to be made. It was further submitted that the Complainant did not give any written or other consent for the deduction to be made from his wages.

According to the Complainant’s submission, while he understands that there may have been a reduction in business activity due to the COVID-19 pandemic, he does not accept that his employer has the legal authority to reduce his wages as a consequence of this.

In addition, the Complainant submitted that other employees had received the double time remuneration in relation to that specific week.

In summarising the Complainant’s position, his Trade Union representative stated that his main concern, at this stage, is that his employer believes that they have the legal authority to deduct his pay, whenever they see fit.

Case Law:

It was submitted on behalf of the Complainant that, while the Respondent may argue custom and Practice on this occasion, the test for Custom and Practice is well set out in common law. In particular, the Complainant’s representative cited the case of Devonald and Rosser (1906) [2 KB 728], which, it was submitted, states that lay off without pay may be operable where an employer can demonstrate that it has been Custom and Practice of the workplace and that the custom must be reasonable, certain and notorious.

In further support of the above contention, the case before the EAT of Steffan Chmiel and others v Concast Precast Limited was also cited.

Finally, the Complainant’s representative cited the Labor Court’s findings in the case of Panel Duct v Brian Mulhare and the WRC case, A Project Coordinator v A Translation/Interpretation Service.

Conclusion:

In concluding submission on behalf of the Complainant, his Trade Union representative stated the facts of the case as follows:

Ø  There is no contractual term that allows this deduction to be made from the Complainant’s wages.

Ø  The Complainant did not give written (or any) consent for the deduction to be made.

Ø  The Respondent has breached Section 5 of the Payment of Wages Act.

Ø  There is no notorious Custom and Practice.

On that basis, the Complainant requested a favorable decision on his complaint.

In reply to the Complainant’s complaint, the Respondent made the following submission:

Introduction:

The Respondent stated that, in addition to the normal weekly schedule of Friday/Saturday events, they historically hosted additional activities in the week leading up to the August Bank Holiday, in order to maximise commercial revenue at the venue from the annual influx of visitors during this week.

The Respondent provided details in relation to the additional midweek activities, for the period 2010 to 2020, as follows:

Ø  2010 – 2015:       4 additional events

Ø  2016, 2018/19:   3 additional events

With regard to 2017, the Respondent submitted that only two additional events were hosted. According to the Respondent, this was a deliberate commercial decision made by management. However, on this occasion, management took the view that staff should not be penalized just because management was conducting a trial and, therefore, payments were made to staff as if the extra events had been hosted.

With regard to 2020, the Respondent submitted that, like all businesses, their revenues were significantly impacted by COVID-19. It was further submitted that, at the early stages of the pandemic, activity was suspended for a period of 12 weeks. However, the Respondent submitted that, while short term layoffs were implemented for part time staff, all full-time staff, including the Complainant, were maintained on full employment. The Respondent stated that they participated in the wage subsidy scheme put in place by the Government with the aim of maintaining employees normal net weekly wage throughout the period of inactivity.

According to the Respondent's submission, activity resumed in June 2020, firstly behind closed doors with no commercial income as a result. In July 2020, operations resumed with significantly reduced capacity and associated drop in income. However, based on government advice, operations were again suspended in mid-August with activities continuing behind closed doors from then on.

The Respondent submitted that, as a result of the ongoing impact of the pandemic on activities, no additional events were hosted during the festival week in 2020. Therefore, as no additional hours were worked during this week, the additional remuneration associated with the extra events was not paid.

Respondent’s Position:

It was submitted on behalf of the Respondent, that no additional work took place during the festival week in 2020. It was further submitted that public health restrictions significantly reduced capacity at the Respondent’s venue and no additional events were held.

According to the Respondent's submission, in such circumstances, management were entitled to not pay staff for work that was not done, especially against the background of COVID-19, which had led to a situation where revenue from hospitality and other activities had been greatly reduced, if not eliminated altogether.

According to the Respondent's submission, the concept of “force majeure” applies, in this regard, insofar as they were forced by the pandemic to forego revenue and activity which supported these additional payments. It was further submitted by the Respondent that events were beyond their control and indeed were a direct consequence of directives issued by Government to protect public health.

In response to the Complainant's contention that other staff received the additional premium for the week in question, the Respondent submitted that certain part time staff are paid time and 1/2 for working public holidays. It was stated that the payment for the August Bank Holiday, which occurred at the end of the week in question, was made on the previous Saturday, in line with normal practice.

However, the Respondent submitted that, unfortunately, an error was made by Payroll which resulted in two part time staff being paid time and 1/2 for the Friday of that week as well. It was further submitted by the Respondent that a decision was made that the sums involved did not justify reclaiming the amount and so the payment was allowed to stand.

However, the Respondent contends that this extra sum was half of the amount that would have been due had activities during the week been normal, i.e had there been greater numbers of members of the public in attendance. Consequently, the Respondents submitted that this was not a payment of the premium, which the Complainant was seeking, but was merely a payroll error and should be seen as such.

According to the Respondent’s submission, there is no basis whatsoever for the Complainant’s complaint in this regard. The Respondent further submitted that all wages due to the Complainant have been paid in full. The Respondent stated that the Complainant was entitled to an additional paid day off in respect of the August Bank Holiday, which fell on Monday 3 August 2020, and he took this on Tuesday 4 August 2020.

According to the Respondent’s submission, there is no contractual clause which confers a right to additional payment for the week in question regardless of what happens. In addition, the Respondent submitted that there is no clause in any company-union agreement, comprehensive or otherwise, which supports this claim.

Conclusion:

In summing up their submission, the Respondent stated that they are not responsible for the suspension of normal additional activities which happened on this occasion. It was further stated that the additional payment claimed is for work which was not done nor was there any requirement for that work as a consequence of government directives.

In conclusion, the Respondent submitted that the claim is misguided and not supported by any basis in fact and, on that basis should, therefore, be dismissed.

With regard to the issues arising in relation to this complaint, the Complainant and the Respondent made written submission and also provided oral evidence at the Hearing. I have carefully considered and evaluated all of the evidence and submissions adduced in this regard in reaching my determinations as set out below.

The Law

Section 5 of the Payment of Wages Act states

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act states

“5(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 insofar 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 that occasion.”

Based on the provisions of Section 5(6) of the Act, as set out above, the key determining factor, when assessing the validity of the Complainant’s complaint, in the within case, is whether the claimed premium payment is “properly payable” to the Complainant by the Respondent. This approach is supported by the findings of Finnegan P., in the case of Dunnes Stores Cornelscourt Ltd v Lacey & Anor [2005] IEHC 417, where he stated that addressing the question of the remuneration being properly payable is essential to the making of a determination in this regard.

The Contract of Employment:

A Contract (Terms and Conditions of Specific Purpose Temporary Employment) of Employment was provided for the Complainant post the Oral Hearing. That document clearly sets out that the Complainant's working hours are “39 hours per week, to be agreed with the manager”. It further states that the Complainant “may be required to work different or extra hours in order to meet the needs of the business.”

Finally, notwithstanding the fact that the Complainant stated in evidence that the premium payment, relating to the August week, was in existence from the commencement of his employment in May 2005, the Contract of Employment makes no reference to either the requirements for additional work during this week and/or the payment arrangements that applied in such circumstances.

Case Law:

With regard to the case law cited in support of the Complainant’s claim, I find neither to be applicable to do with in case.

The case of Panel Duct Ltd v Brian Mulhare [PWD1814/ADJ-00010540] relates to the payment of notice in the context of a resignation, which took place on foot of a lay-off, resulting from a disputed downturn in business.

In the within case, there was no layoff situation as the Complainant was retained in employment throughout the period the business was impacted by the Covid pandemic and during which he received his average weekly wages. Rather, the situation in this case relates to whether or not the failure by the Respondent to provide a premium payment in relation to additional work which never took place, represents “properly payable” wages.

In the case A Project Coordinator v A Translation/Interpretation Service [ADJ-00028317], the claim related to the unilateral application of a 25% reduction in the employee’s salary in response to the alleged impact on the business of the Covid pandemic. In that case, the Respondent did not experience a sufficient downturn in business which would have satisfied the criteria for entry into the government wage subsidy scheme that applied at the time. Consequently, the unilateral reduction in the employee’s was found to represent an illegal deduction of properly payable salary.

In the within case, the Respondent’s business was very significantly impacted by the pandemic to the extent that they qualified for the wage subsidy scheme and, as a result, were in a position to maintain the Complainant and his full-time colleagues in employment throughout the impacted period, with no reduction in weekly wages.

The Complainant’s Claim:

The Complainant's claim is based on the contention that the Respondent's failure to pay the premium rate that normally applies to the additional days of work arising from the additional events which take place on an annual basis in the week leading up to the August Bank Holiday, represents an unlawful deduction from his wages.

Notwithstanding the fact that the Complainant's contract of employment contains no reference to this additional work and/or the payments that applies to same, I am satisfied that a Custom and Practice exists whereby, when the additional nights are worked during this week, a premium payment of double time is paid. Having clearly considered all of the evidence adduced regard, I am satisfied that the payment is only made in circumstances where the additional hours are worked.

It is noted that in 2017, when management, as part of a commercial trial, reduced the extra evenings to two, as opposed to the three/four held in previous years, the employees were paid the premium covering the full week. This decision, not to penalize the employees as a result of a management trial, must be seen as reasonable in all the circumstances. I am further satisfied that it cannot be held to constitute a precedent whereby a full week’s premium payment would be paid when no additional events were staged.

Based on the evidence submitted, I am satisfied that in 2020 no additional activities took place during this week in 2020 and, subsequently, no additional hours were worked.

Taking all of the above into consideration, I find that the Complainant cannot have a reasonable or legitimate expectation of being paid for work that was not carried out. In that context, I can only conclude that the payment claimed by the Complainant, in this regard, does not constitute “properly payable” wages and, therefore, the Respondent’s failure to make this payment in 2020 does not constitute an illegal deduction in line with Section 5 of the 1991 Act.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint under Section 6 of the Payment of Wages Act, 1991, is not well founded and is, therefore, not upheld.

Payment of Wages Act

Properly Payable Wages