PWD2249

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00009342 CA-00012265-002


BACKGROUND:

2.This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 11 October 2022 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:




DETERMINATION:

This is an appeal by Mr Patrick Coleman against an Adjudication Officer’s Decision ADJ-00009342, dated 24 April 2018 given under the Payment of Wages Act 1991 (the Act) against his employer Noonan Services Group Ltd.

The Adjudication Officer held that Mr Coleman’s claim was not well founded. Mr Coleman lodged an appeal to the Labour Court on 18 May 2018.

Mr Coleman also lodged an appeal of a recommendation made by the Adjudication Officer in a related complaint made under section 13(9) of the Industrial Relations Act, 1969. In that case, the Adjudication Officer saw no grounds to make a recommendation in favour of the complainant. That appeal was withdrawn in advance of the Court hearing.

A hearing of the Labour Court was held on 11 October 2022. In this Determination the parties are referred to as they were at first instance. Hence, Noonan Services Group Ltd is referred to as the Respondent and Mr Patrick Coleman as the Complainant.

Background

The Complainant is employed by the Respondent as a Security Officer. He is seeking payment of a “Personal Attack Benefit” which he submits was properly payable to him when he was out of work following an incident in the Hospital’s emergency department in March 2017. The Complainant’s position is that he is entitled to receive a “Personal Attack Benefit” which is provided for under section 7 of the Employment Regulation Order (Security Industry Joint Labour Committee 2017).

The Respondent’s position is that no entitlement to claim a benefit under the Personal Attack Benefit Scheme arose as the Complainant was not attacked during the course of his duties. It submits that no unlawful deduction of wages occurred.

As the complaint was lodged to the Workplace Relations Commission on 4 July 2017, the cognisable period for consideration of a complaint in relation to a contravention of the Act is 5 January 2017 to 4 July 2017. The Complainant is seeking payment of a “Personal Attack Benefit” for the period from 5 March 2017 to 4 July 2017.

Complainant’s Submission

On 4 March 2017 the Complainant responded to an incident in the Accident & Emergency Department after a man was observed taking a case from a patient trolley. As the Complainant approached the man with his supervisor, the man became extremely aggressive and tried to strike the supervisor. While attempting to restrain the man the Complainant was dragged towards the Nurses station and was pushed against it with force. The Complainant received a further impact when the man ran towards him. The man was eventually restrained with the assistance of additional security personnel.

After the incident the Complainant experienced pain in the left side of his body and had difficulty breathing. He reported to the Accident and Emergency department, where he was assessed. He required x-rays and was kept in overnight for observation. The Complainant has remained on certified sick leave since the incident.

SIPTU, on behalf of the Complainant, contends that he was assaulted during the course of his duties. Under the provisions of the ERO an employee who is the subject of personal attack during the course of his duty and sustains an injury that renders him unable to attend work is entitled to receive a benefit of up to 20 weeks basic pay less social welfare. The Respondent’s refusal to implement the provisions of the Employment Regulation Order in respect of the payments due to the Complainant is a breach of the Payment of Wages Act.

The Complainant worked 28 hours per week at a rate of €10.75 per hour. His gross weekly pay was €301. After social welfare deductions he received €188. For the 18-week period encompassed by the claim, the Complainant suffered a shortfall in wages of €2,034 gross. The Complainant requests that the Court uphold the complaint and make an award of appropriate compensation for denying his rights as an employee.

Respondent’s Submission

The Complainant is an experienced Security Officer who was working as part of a security team on a hospital site. On 4 March 2017 the Complainant was involved in an incident in the Accident & Emergency Department when on duty. In the course of the pursuing a man who was acting suspiciously, the Complainant hit himself against the nurse’s station and was injured.

Personal Attack Benefit is provided for under section 7 of the Employment Regulation Order (Security Industry Joint Labour Committee 2017). This benefit applies to employees with six months service where they have been “attacked in the course of their duty” and as a result of such an attack they have suffered “an injury”. The essential element of the schemes is that a security officer must have been attacked and as a consequence of that attack, suffered injuries that resulted in his absence from work.

In the circumstances outlined by the Complainant, there was no attack. The Complainant was in pursuit of an individual who he believed was involved in some breach of security. The Respondent submits that no injuries were reported that resulted from an attack by the assailant on the Complainant. This is evidenced by the Complainant’s own statements to the company and his incident report form. In such circumstances, no entitlement to a benefit under the Personal Attack Benefit Scheme arises. The benefit was designed to support officers who are physically attacked by a third party. Concession of the claim would have significant repercussions within the security industry.

The Complainant was paid sick pay benefit in accordance with the Security Industry Employment Regulation Order. The Respondent also paid for 10 counselling sessions for the Complainant.

The Respondent contends that no attack occurred and no entitlement to the Personal Attack Benefit has been established by the Complainant.

The Applicable Law

The Act at Section 5(6) provides as follows:

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 therefrom that fall to be made and are in accordance with this Act), or

    (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

  then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Deliberation and findings

The Court notes that a separate mechanism exists under the Industrial Relations Act 1946 in relation to a contravention of an employment regulation order in relation to a worker. Notwithstanding, that such a mechanism exists, the worker in this case has progressed his appeal under the Payment of Wages Act, 1991, and the Court’s jurisdiction is confined to assessing whether a contravention of that Act occurred in light of the particular facts of this case.~

Amount Proper Payable

Section 5 of the Act provides that where the total amount of wages properly payable to an employee is not paid the deficiency or non-payment is to be regarded as a deduction. Accordingly, the first matter for the Court to decide is what wages were properly payable to the Complainant during the period encompassed by the complaint.

It is accepted by the parties that the Complainant’s terms and conditions of employment are covered by the Employment Regulation Order, (Security Industry Joint Labour Committee) 2017, S.I. No. 231 of 2017, and that the terms of that Order form part of the Complainant’s contract.

What is disputed is the application of S. 7 of that ERO, which provides as follows:

Section (7) Personal Attack Benefit

• A non-contributory Personal Attack Benefit will apply, after 6 months’ service with the employer, to all workers covered by this Employment Regulation Order, who are attacked in the course of their duty, resulting in an injury.
  
  The amount payable will be as follows:—
  
  • After 6 months’ service 10 weeks’ basic pay, less Social Welfare
  
  • After 18 months’ service 15 weeks’ basic pay, less Social Welfare
  
  • After 30 months’ service 20 weeks’ basic pay, less Social Welfare
  
  • After 42 months’ service 26 weeks’ basic pay, less Social Welfare
  
  An employer shall ensure that appropriate physical and psychological support is available, on request, to any worker who has been subjected to violence as a result of carrying out his/her duties. (Ref: Personal Service Authority Standards 28 of 2013 Section 4.6.7)

In the case of Mythen Bros. Ltd. v. Building and Allied Trades Union (2006) E.L.R. 237, the Court addressed the approach that should be taken when it is asked for an interpretation of the terms of a registered agreement. The Court said that interpretation should not be approached as if it was a statute or a product of legal draughtsmanship. Its terms should be construed ‘by applying to them a meaning that they would normally bear in the context of industrial relations so as to achieve the result envisaged by the parties to the agreement’.

In the within appeal, the Court is being asked to construe a term of an ERO in the absence of direct evidence from the parties who engaged in the formulation of the ERO as to what was intended by the clause that is in dispute. The appeal before the Court was not referred to the Court under s. 45 of the Industrial Relations Act 1946, as amended by s. 13 of the Industrial Relations (Amendment) Act 2012, which allows an individual to seek an interpretation of an ERO by the Court. The case was brought under the Payment of Wages Act, under which Act the burden of proof in establishing what is ‘properly payable’ rests with the Complainant.

The Court finds that it is not possible for it to reach a determination that the sum claimed is ‘properly payable’ in the absence of evidence from the parties who engaged in the formulation of the ERO as to the result that was envisaged by them. Therefore, the Complainant cannot discharge the burden of proof to establish that the wages claimed are ‘properly payable’ and the claim before the Court must fail.

Accordingly, the Court finds that the Complainant has not established that the “Personal Attack Benefit” was properly payable to him during the relevant period encompassed by his claim.

The role of the Court is to determine the sum that was properly payable to the Complainant by applying the law to facts before it.

The Court finds that the complaint is not well founded.

The decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
CO'R	______________________
17 November 2022	Deputy Chairman