Complainant

Respondent

Parties

Sean  Considine

Limerick City And County Council

Representatives

Ms. Deirdre Canty, SIPTU

Local Government Management Agency

Act

Complaints Reference No.

Date of Receipt

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

CA-00040949-001

12/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041408-001

04/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044400-001

30/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044400-002

30/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044319-001

25/05/2021

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

CA-00044319-002

25/05/2021

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

CA-00044352-001

26/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00044352-003

26/05/2021

The Complainant commenced employment with the Respondent on 1st April 2007. At all times his role was described as that of “Executive Engineer”. The Complainant is a full-time, permanent employee of the Respondent.

On a series of dates between 12th November 2020 & 26th May 2021, the Complainant referred a number of complaints under the Payment of Wages Act and the Organisation of Working Time Act. These complaints related, primarily, to the same set of facts and each covered a separate cognisable period. In essence, the Complainant fell into dispute with the Respondent regarding his place of work in early 2020. Thereafter, the Complainant refused to attend work in the assigned area. It is his case that he was willing to work and no work was made available for him. By submission, the Respondent stated that the Complainant did not attend work, and as a consequence of the same he was removed from payroll, with the consequent effect on his annual leave entitlements.

A hearing in relation to this matter was convened for, and finalised on, 2nd December 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.   

The Complainant is engaged as an “Executive Engineer” with the Respondent. In May 2020 the Complainant was informed that his base of employment would be move to a different section within the metropolitan area. The Complainant raised a grievance in relation to the same and submitted that the Respondent did not have authority to transfer him whilst an ongoing grievance was active. On foot of this dispute, the Complainant did not attend work at the new site but stated that he was willing to work elsewhere. On 8th June 2020, the Respondent issued correspondence to the Complainant stating that they would remove him from payroll in the event that he did not attend work at the new site. On 9th June 2020, the Respondent subsequently ceased paying the Complainant’s salary.

The parties ultimately elected to engage with mediation regarding this dispute, with part of the outcome of the same being that the Complainant’s would be restored to the Respondent’s payroll on 17th August 2020. This agreement also set out that the Complainant would return to work shortly thereafter.

Unfortunately, the parties again fell into dispute regarding the manner of the Complainant’s return to employment. On 30th November 2020, the Complainant was certified as unable to work due to ill health. Whilst the Complainant was paid for the first week of this sick leave, he was subsequently removed from the Respondent’s payroll on 5th December 2020. The Complainant, through his representative, raised a grievance in relation to the same as he was entitled to be paid under the terms of the Respondent’s sick pay scheme. This grievance was denied on the basis that the sick pay is paid at the discretion of the county manager. By the date of the final referral, the Complainant had not returned to work with the Respondent and remained on certified sick leave.

Regarding the complaints under the Organisation of Working Time, the Complainant submitted that he did not receive his correct annual leave or public holiday entitlement within the cognisant periods for the purposes of the complaints.  

By response, the Respondent submitted that the Complainant’s contract of employment contained a clause that allowed them to transfer him within the relevant metropolitan area. Following a review of the requirements of the organisation, the Complainant was transferred on 5th May 2020. The Complainant refused to transfer, and did not attend for work at the new location. Correspondence was issued to the Worker stating that he was required to attend on 18th May 2020 & 2nd June 2020. On 3rd June, the Employer issued correspondence stating that if the Worker did not attend for work on 8th June 2020 he would be removed from payroll. The Worker did not attend and was subsequently removed from payroll on 9th June 2020.

Following a mediation conference, the Employer agreed to return the Complainant to payroll from 17th August 2020. Unfortunately, the parties fell into dispute again and the Complainant again did not attend for work on 26th November 2020. As a result of the same, the Complainant was again removed from payroll on 5th December 2020.

By submission, the Respondent stated that in the event that the Complainant does not complete the work that he is assigned, the Respondent is not required to discharge his salary. On foot of the same, they submit that the wages the Complainant seeks to recover are not “properly payable” under the Act as a consequence his complaint must fail. The Respondent further submitted that the Complainant’s annual leave entitlement was affected by his not attendance and that all annual leave and public holiday entitlements that had accrued were discharged.

The present dispute involves a number of complaints under the Payment of Wages Act and the Organisation of Working Time Act. Central to these disputes is the removal of the Complainant from the Respondent’s payroll on two occasions, on 9th June to 17th August 2020 & 5th December 2020 to the lodgement of the complaint. It is the position of the Complainant that his wages were due and owing during these periods. In the alternative, the Respondent has submitted that they were entitled to remove the Complainant from their pay-roll on both these occasions. The complaints under the Organisation of Working Time Act will, in the main, be determined by whether the Complainant accrued an entitlement during these periods.

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…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”.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which if there is a deficiency in respect of those such payments”.

In the present complaint, the Complainant did not attend work at the site designated by the Respondent from 5th May 2020.  In this regard I note that the Complainant’s contract of employment permits the Employer to transfer the Complainant within the metropolitan area based on its own requirements. While the Complainant is entitled to dispute the same, and a grievance was raised in this respect, the Respondent was acting within their contractual entitlements by insisting on such a transfer. It is apparent that from 18th May 2020 to 17th August 2020, the Complainant did not attend work as he fundamentally disagreed with the Respondent’s decision to transfer him. This being the case, it is clear that the Complainant did not attend for work whilst being fit to do so during this period.

In the matter of Fuller -v- Minister for Agriculture [2008] IEHC 95, Gillian J. referred to the following passage,

“There was no contract to pay it unless it was earned. If she had not worked at all during the week, though the contract for service remained, she would not have been entitled to any payment; and could it be said that when, being entitled to nothing, she was paid nothing, the non-payment was an offence under the Act?...The non-payment took nothing from her to which, in any view, she had become entitled, or to which, when the week ended, she could have ever become entitled. It was simply withholding payment of what she had not earned, and never could earn.”

In the more recent case of Larkin Unemployment Centre -v- Deborah Eustace PWD22, the Labour Court held that an employee must actually work assigned hours for wages to be deemed properly payable for the purposes of the Payment of Wages Act.

It is common case that he did not actually work during the relevant period of the dispute, having regard to the same, and the authorities cited above, I find that the wages from the period June-August 2020 are not properly payable for the purposes of the Act.

I note the parties fell into further dispute in November 2020 regarding the correct implementation of a mediation agreement. On 28th November, the Complainant did not attend for work, on foot of the dispute that had arisen regarding the implementation of the mediation agreement. Notwithstanding the same, I note that the Complainant was subsequently certified as unable to work from 30th November 2020, and remained on certified sick leave for a lengthy period thereafter.

In this regard, I note that the Complainant’s contract of employment provides, under a clause entitled “Sick Leave” that,

“Provided there is no evidence of permanent disability for service, sick leave may be allowed during properly certified sick absence at full pay up to a maximum of six months in one year and at half pay thereafter, subject to a maximum of twelve months sick leave in any period of four years or less”.

Having reviewed the clause, it is apparent that the only other disqualifying criterion enumerated is that the applicant must make the relevant application to the department of Social Protection. I further note this matter is not in contest between the parties. In these circumstances, it is apparent that the Complainant has met the qualifying criteria for sick pay entitlement.

The sick pay scheme further states that “Limerick County Council reserves the right to refer you to an independent Medical Advisor. Paid sick leave is, in any event, at the discretion of the County Manager”. On foot of the same, it is apparent that paid sick leave is not an automatic entitlement, but is discretionary in nature.

In the matter of Cleary & Others v B&Q Ireland Limited [2016] IEHC 119, McDermott J. held that when an employer is seeking to exercise discretion regarding payment, such discretion must be,

“exercised reasonably. If the discretion is exercised unreasonably the employer will be in breach of contract if no reasonable employer would have exercised the discretion in that way…This imposes a very high onus on an employee who claims that the discretion was unreasonably exercised”.

In the present matter, it appears that the Respondent sought to disapply the sick pay scheme as the Complainant was in dispute with the Respondent regarding his place of work and had indicated that he would not work at the assigned location. This position fails to take into account that the Complainant was certified as unable to work and submitted medical evidence to the effect that he could not work at the assigned location, the previous location or anywhere. In this regard, the purpose of the sick pay policy is to provide employees with certainty regarding their financial security in the even that they become ill. In this instance, it is apparent that the Respondent sought to disapply the benefit as the Complainant was in dispute with them regarding his place of work. Such exercise of discretion cannot be said to be reasonable in the circumstance. Having regard to the foregoing I find that the sick pay scheme applies to the Complainant from the 30th November 2020. As a consequence of the same, his wages are “properly payable” under the terms of that policy for the purposes of the Payment of Wages Act.

CA-00040949-001 Complaint under the Payment of Wages Act

In circumstances whereby this complaint was received on the 12th November 2020, the cognisable period for the purposes of this complaint is 12th May to 12th November 2020.

This particular complaint relates to the alleged non-payment of wages from 8th June 2020 to 17th August 2020. I find that the wages in question were not properly payable within the meaning of the Act, and consequently, the complaint is not well-founded.

CA-00041408-001 Complaint under the Organisation of Working Time Act

In circumstances whereby this complaint was received on 4th December 2020, the cognisable period for the purposes of the complaint is 4th June 2020 – 4th December 2020.  

In the matter of Waterford County Council v O’Donoghue DWT0963, the Labour Court stated that,

“The only leave year which is cognisable for the purpose of determining if an employee received his or her statutory entitlement is that prescribed by the Act itself, that is to say a year starting on 1st April and ending on 31st March the following year. While different arrangements may be put in place for administrative purposes, in determining if a contravention of the Act occurred that Court can only have regard to the leave allocated to an employee in the statutory period.”

In Singh & Singh Ltd and Guatam DWT0544 the Labour Court held, relying on the decision of Lavan J in Royal Liver v Macken [2002] 4 IR 428, that,

“From this judgement it is clear that where an employer fails to provide an employee with the requisite amount of paid annual leave the contravention of the act occurs at the end of the leave year to which the leave relates.”

The specific complaint relates to an alleged failure on the part of the Respondent to pay the Complainant’s full annual leave entitlement for the year 2020. In circumstances whereby the leave year had not concluded within the cognisable period, I find that this complaint is not well-founded.

CA-00044400-001 Complaint under the Organisation of Working Time Act

In circumstances whereby this complaint was received on 30th May 2021, the cognisant period for the purposes of the complaint is 30th November 2020 to 30th May 2021. In particular, the Complainant stated the Respondent approved annual leave in late 2020, but retrospectively cancelled the same thereafter.

It is common case that the Complainant was absent due to certified sick leave during the cognisable period for the purposes of this complaint. Section 86(1) Workplace Relations Act 2015 has amended Sections 19, 20 and 23 of the Organisation of Working Time Act. These amendments provides that an employee will accrue statutory annual leave entitlement whilst on certified sick leave. This amendment was brought into Irish law to ensure the annual leave provisions of the 1997 Act were in line with the annual leave provisions of the EU Working Time Directive as interpreted by the Court of Justice of the European Union (CJEU) in the joined Cases C-520/06 and C-350/06 Stringer and others v. HM Revenue and Customs sub nom Commissioners of Inland Revenue v. Ainsworth and others Schultz-Hoff v. Deutsche Rentenversicherung Bund[2009] IRLR 214 .

While the Complainant was in a position to accrue annual leave whilst on sick leave, he cannot avail of such leave whilst certified as unable to work. In this regard, the Respondent was correct to decline the Complainant’s request for annual leave in December 2020.

The Complainant also submitted that the Respondent breached the Act in reducing his annual leave entitlement by six days. The Respondent submitted that as the Complainant was absent from 8th June 2020 to 14th August 2020, the Complainant did not attend work, and consequently could not accrue an annual leave entitlement.

In this regard, I note that Section 19(1)(a) of the Act provides that an employee will accrue “four working weeks in a leave year in which he or she works at least 1,365 hours”.  In circumstances whereby the Complainant worked normally from 1st April 2020 until 8th June 2020, began to accrue annual again from 14th August 2020 and was certified as unfit to work thereafter, it is apparent that the Complainant accrued in excess of 1,365 hours in the relevant leave year. In such circumstances the Complainant would have an entitlement of 20 days of annual leave for the relevant leave year.

Section 27 of the Organisation of Working Time Act 1997 (as amended) provides that a decision of an Adjudication Officer shall do one or more of the following:

1.      Declare the complaint was or was not well founded;

2.      Require the Employer to comply with the relevant provision;

3.      Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

Having regard to the foregoing, I find that the Complainant accrued the disputed annual leave entitlement of six days. As a consequence of the same, I find that the complaint is well-founded. Regarding redress, I award the Complainant the sum of €1,615.20 in respect of the annual leave entitlement, and a further €500 in compensation.

CA-00044400-002 Complaint under the Organisation of Working Time Act

In circumstances whereby this complaint was received on 30th May 2021, the cognisant period for the purposes of the complaint is 30th November 2020 to 30th May 2021.

The specific complaint relates to the Respondent’s failure to compensate the Complainant for public holidays within the cognisant period. In this regard the following public holidays fell within that period; 25th December 2020, 26th December 2020, 1st January 2021, 17th March 2021 & 3rd May 2021. During this period, the Complainant was certified as unable to work by his GP.

In this regard, the third schedule to the Organisation of Working Time Act provides that an employee is entitled to payment for public holidays for a period of 26 weeks following a period of certified illness. In such circumstances, I find that the Complainant is entitled to payment for the five public holidays listed above.

Having regard to the foregoing, I find that the complaint is well-founded and award the Complainant the sum of €1,346.00 in respect of the unpaid public holiday entitlement, and a further €500 in compensation.

CA-00044319-001 Complaint under the Organisation of Working Time Act

In circumstances whereby this complaint was received on 25th May 2021, the cognisant period for the purposes of the complaint is 25th November 2020 to 25th May 2021.

The specific complaint relates to the Respondent’s failure to compensate the Complainant for public holidays within the cognisant period. As this period is almost entirely covered by the complaint above, and no public holidays fall on the dates outside of the same, I find that this complaint is not well-founded.

CA-00044319-002 Complaint under the Payment of Wages Act

In circumstances whereby this complaint was received on the 25th May 2021, the cognisable period for the purposes of this complaint is 25th November 2020 to 12th May 2021.

This particular complaint relates to the alleged non-payment of wages from 30th November 2020 to 12th May 2021. As the Complainant was on a period of certified sick leave during this period, and met the criteria set out in the Respondent’s sick pay scheme, I find that the complaint is well-founded.

Regarding redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed.

In this regard, I note that the Respondent’s sick leave policy provides that “provided that there is no permanent disability for service, sick leave may be allowed during properly certified sick absence at full pay for a maximum of six months in one year and at half pay thereafter”. The Complainant was removed from the Respondent’s payroll from 5th December 2020, and remained so until the lodgement of the complaint on 25th May 2021. On foot of the same, and by operation of the agreed contractual policy, the Complainant wages were “properly payable” for a period of 24 weeks within the cognisant period.  As the Complainant average weekly wage was agreed as €1,346.25, I find that the Complainant is owed the sum of €32,309.88 in unpaid wages. This payment should be subject to all normal deductions as income.

CA-00044352-001 Complaint under the Payment of Wages Act

In circumstances whereby this complaint was received on the 26th May 2021, the cognisable period for the purposes of this complaint is 25th November 2020 to 12th May 2021.

In the “complaint specific details” section of the complaint form, the Complainant alleged that the Respondent refused to pay an annual leave entitlement relating to a carry-over of a number of days annual leave in December 2020 to January 2021.

As complaint relates to a contractual entitlement to time off in excess of the Complainant’s statutory entitlement, with no apparent method by which the Employer would compensate the Complainant for the same, I find that the entitlement does not constitute “wages” for the purposes of the Act, and consequently the complaint is not well-founded.

CA-00044352-003 Complaint under the Organisation of Working Time Act

In circumstances whereby this complaint was received on the 26th May 2021, the cognisable period for the purposes of this complaint is 25th November 2020 to 12th May 2021.

In the “complaint specific details” section of the complaint form, the Complainant alleged that his annual leave entitlement for the leave year would not be discharged. As the cognisant period for the purposes of this complaint overlap with that of CA-00044400-001, and an award has already been made in respect of the same, I find that the complaint is not well-founded.

Non-payment of Wages, Failure to Attend Work, Sick Pay, Discretionary Payment