FULL RECOMMENDATION
PARTIES : FOOD COURT EVENT CATERING DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S) The Parties aread idemin relation to the material facts relevant to this appeal. They can be recited succinctly as follows. Mr Dean O’Keeffe (‘the Complainant’) was employed by the Respondent as a ‘chef de partie’ from 16 August 2018 until his dismissal on 10 July 2019. The Complainant did not have sufficient service with the Respondent to challenge his dismissal by way of a complaint under the Unfair Dismissals Act 1977. He did, however, refer a dispute to the Workplace Relations Commission pursuant to section 13 of the Industrial Relations Act 1969. The Adjudication Officer to whom the matter was assigned held in the Complainant’s favour and recommended that he receive compensation of €6,000.00 in the light of her finding that the procedures adopted by the Respondent in effecting the Complainant’s dismissal did not reflect best practice. (Recommendation ADJ-00023653, dated 23 March 2020, refers.) The Respondent was not represented at the section 13 hearing and did not implement the Adjudication Officer’s Recommendation. When the six-week period during which the Respondent could have appealed that Recommendation had passed, the Complainant – through his Trade Union – referred the within complaint under the 1991 Act to the Workplace Relations Commission. The Complainant formulated his complaint as follows: “I had a Dispute with my Employer which I referred to WRC (sic). My complaint was heard on 5 December 2019. The Adjudicator, Ms Patsy Doyle awarded me €6,000 in her decision (sic) which was dated 23 March 2020. Neither I or (sic) my Employer appealed the award. Through my Trade Union I asked my Employer to pay this money. I have received no response and I now believe that I am lawfully owed this emolument. I am referring the issue for a decision under the Payment of Wages Act.” The Claim: The nub of the case being advanced by the Complainant in these proceedings can be stated in the following way. The 1991 Act prohibits any unlawful deductions by an employer from wages (as defined in the Act) that are properly payable to an employee. Failure to pay such wages or any part thereof is deemed to be an unlawful deduction and is, therefore, equally impermissible under the Act. The relevant paragraph of the definition of wages in section 1 of the Act provides: “’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 ….” The Complainant then asserts that a recommendation of an award of compensation (such as that made by the Adjudication Officer in favour of the Complainant in ADJ-00023653), if unpaid by the employer in question, is an emolument with the meaning of paragraph (a) of the definition of ‘wages’ quoted above. The Respondent denies that the definition of wages set out in the 1991 Act – and in particular the word ‘emolument’ as used therein – is properly construed in the manner for which the Complainant contends. The burden of proof in relation to this matter is, of course, on the Complainant. Discussion and Decision: The Complainant’s written submission merely asserts that the word emolument as used in section 1 of the 1991 Act should be construed as encompassing an award of compensation recommended by an Adjudication Officer following the referral of a dispute pursuant to section 13 of the Industrial Relations Act 1969. No reasons are, in fact, set out in the written submission in support of this assertion. At the hearing of the within appeal, the Court invited the Complainant’s Trade Union representative (on a number of occasions) to provide reasons in support of what was being contended for on the Complainant’s behalf. No such reasoning was provided to the Court. It seems to the Court that what is at issue in these proceedings is an elementary matter of statutory interpretation. Is the word ‘emolument’ as used in section 1 of the 1991 Act capable of bearing the construction that the Complainant seeks to apply to it? The first rule of statutory construction is often referred to as the literal rule. It requires that words used in a statute be given their ordinary literal meaning unless to do so would result in an absurdity. In his judgment inO’H v O’H[1990] 2 IR 558, at 563 Barron J summarised the literal approach to the construction of legislation – quoting Brandon J inPawys v Pawys[1971] P340, at 350 – as follows: “The true principles to apply are in my view, these: that the first and most important consideration in construing a statute is the ordinary and natural meaning of the words used; that, if such meaning is plain, effect should be given to it; and that it is only if such meaning is not plain, but obscure or equivocal that resort should be had to presumptions or other means of explaining it.” Section 5(1) of the Interpretation Act 2005 provides, inter alia, for circumstances in which such a literal reading should be departed from where such an approach does not satisfactorily determine an interpretative issue. It reads: “5.—(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 construing the literal meaning of words used in a statute, it is permissible for a court to refer to a reliable dictionary, although the jurisprudence on this matter suggests the court should exercise caution when doing so: “I am quite aware that dictionaries are not to be taken as authoritative exponents of the meanings of words used in the Acts of Parliament, but it is a well-known rule of courts of law that words should be taken to be used in their ordinary sense, and we are therefore sent for instruction to these books.” (per Denham J inKeane v An Bord Pleanála[1997] 3 IR 200.) In short, reference to a dictionary can be a useful exercise when a court is tasked with identifying the plain or literal meaning of a word in a statute but the dictionary definition is not necessarily dispositive of the matter as ultimately the word as used by the legislature must be interpreted having regard to the context in which it is used. Bearing the foregoing in mind, it is worth quoting at this stage the definition of ‘emolument’ found in theChambers Twentieth Century Dictionary (Revised Edition). It states “emolument … profit arising from employment, as salary or fees”. The dictionary definition, therefore, strongly suggests that, in its ordinary or everyday usage, the word ‘emolument’ refers to payments (whether by salary or fees) that arise directly from a person’s employment. Furthermore, that word ‘emolument’ is to be understood essentially in this restricted way having regard to the context in which it is used in section 1 of the 1991 Act, appears to be borne out by the following passage from the judgment of the High Court inBalans v Tesco Ireland Limited[2020] 31 E.L.R. 125: “Central to the court's analysis must be the concept of wages “properly payable” … [T]he first matter which should be addressed by the Labour Court is to determine what wages are properly payable under the contract.” (See paragraphs 35 to 37). Having regard to the foregoing, the Court is satisfied that a literal and plain reading of section 1 of the 1991 Act – and in particular of the definition of ‘wages’ therein, including the word ‘emolument’ as used in the context of that definition – unequivocally precludes the expansive construction of the word ‘emolument’ contended for by the Complainant as the cornerstone of the case he is seeking to advance in this appeal. The Court’s conclusion in this regard appears to it to be entirely consistent with the jurisprudence of the Superior Courts in relation to the non-justiciability of recommendations and decisions of Adjudication Officers of the Workplace Relations Commission and of the Labour Court made under the Industrial Relations Acts. See, for example, the following passage from the judgment of the Court of Appeal inMullally v The Labour Court[2016] IECA 291 in relation to the non-binding nature of recommendations of the Labour Court under section 20(1) of the Industrial Relations Act 1969: “24. All of this is to say that if the decision of the Labour Court was not simply a recommendation, but had binding legal consequences, then, of course, the result of this case so far as the jurisdictional issue of justiciability is concerned would be quite different. As this, however, is not the case, I entirely agree with the conclusion of Noonan J. that the recommendation of the Labour Court pursuant to s. 20(1) of the 1969 Act “has no strictly legal effect but rather relies upon the moral authority of the expert statutory body from which it emanates.” Nor can it be said that such a recommendation creates any form ofres judicataor any other form of binding resolution. 25. It follows, therefore, that the recommendation of the Labour Court does not give rise to justiciable rights or issues such as would permit the applicants to seek judicial review of that decision.” Conclusion: For the reasons set out above, the Court upholds the within appeal and finds that a recommendation that a worker be paid an amount in compensation embodied in an Adjudication Officer’s Recommendation under section 13 of the Industrial Relations Act is not comprehended by the definition of ‘wages’ in the 1991 Act. The Decision of the Adjudication Officer is, therefore, set aside. The Court so determines.
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