Complainant

Respondent

Parties

Philip  Byrne

Kilkenny County Council

Representatives

Anne Flynn of SIPTU

Keith Irvine of Local Government Management Agency (LGMA)

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-00050925-001

31/05/2022

The issue in contention concerns a Driving Allowance that the Complainant alleged that he was due from December 2021 to May 2022.

The employment as a retained Fire Fighter commenced in August 1996 and continues.

The rate of pay is the Retained Fire Fighter basic allowance and driver additional allowance as per Local Government scales.

The Complainant gave an Oral Testimony supported by Ms Flynn of SIPTU. A written submission was also submitted.

The Complainant was suspended, for a two-year period, from fire appliance driving duties in December 2019.

He was eligible to resume driving in December 2021.

He was not allowed back to Driving until May 2022. This was unjustified and an effectively a second Penalty suspension. The Respondent claimed that the Complainant was required to do a specialised driving course, the ESDS, prior to resuming driving.

This was an incorrect interpretation of Regulations – the Complainant was exempt from this requirement as he had been a driver for some 15 years prior to his suspension and was thereby exempt from the ESDS requirement. He already held a previous Driving course certificate, the EFAD course , which was replaced by the ESDS certificate, a voluntary qualification.

He claims the driving allowance for the period December 2021 to May 2022.

The non-payment of the allowance was an illegal Deduction according to Section 5 of the Payment of Wages Act, 1991.

The Respondent had no proper legal basis for their actions.

The Respondent submitted a written submission and gave Oral Testimony from Mr JC, the Chief Fire Officer. Mr. Irvine, LGMA, was the chief spokesperson.

The Complainant had a drink driving incident in May 2019, (detected by the Gardai), which resulted in his losing his ordinary Public driving licence for three months. The Council took Disciplinary action, and the Complainant was dismissed. On Appeal to the Chief Executive Officer, Ms B, the dismissal was withdrawn and replaced with a removal of driving duties for a minimum two-year period. At the end of the two-year period the Chief Fire Officer (CFO) was to review the conduct of the Complainant and if satisfied allow the resumption of driving duties. CEO letter of 18th December 2019 refers.

In December 2021 the CFO, Mr JC, stated to the Complainant that he was not prepared to allow a resumption of Driving duties until the Complainant completed successfully the specialised ESDS driving course.

The Complainant had not driven a Fire Tender for over two years and the CFO, conscious of his safety responsibilities to other Fire Fighters (travelling as passengers in the tender) and the public generally as road users, decided that the ESDS was a requirement for a resumption of driving.

He also noted that the Complainant had not made himself available for a number of required Aerial Ladder & Breathing Apparatus training sessions during 2021. In addition, his attendances (“stand to” in Fire Service language) was the worst in the Brigade during the two-year period.

The Chief Executive letter of the 13th December 2019 gave the discretion to the Chief Fire Officer to decide when it would be appropriate to revert to Driver duties. The requirement to do the ESDS course was perfectly reasonable as was the review of attendances during the two-year period.

A regard the Payment of Wages Act,1991 there was no “Deduction”. All proper wages were paid, and the driving allowance was only applicable when driving.  

3:1       The Legal Position

Section 5 of the Payment of Wages Act,1991 applies.

Regulation of certain deductions made and payments received by employers.

5.—(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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee).

In this case the disputed issue is the Driving allowance which was withdrawn by the Chief Executive for a minimum of two years. The withdrawal was effectively part of an Appeal decision against Dismissal.

From a Contract point of view the Complainant agreed to the Appeal decision by coming back to work on the amended terms which included the discretionary power of the Chief Fire Officer to decide whether or not, after a review “It is appropriate to revert to your role as Driver Firefighter”.

It would appear that Section 5, sub sections (1) (b ) and (c) of the Payment of Wages Act,1991 apply.

Put plainly, the driving allowance applies when categorised as a Driver. This did not happen until May 2022 when the allowance was paid as agreed.

However, all cases rest on their own facts and evidence and these are looked at below.

3:2       Review of the evidence and written materials presented

The principal Respondent witness was the Chief Fire Officer, (CFO) Mr JC. It was his view as the CFO, having reviewed all the facts in the case, that he would not be happy to have the Complainant driving a Fire Tender until he had completed the ESDS driving course.

On cross examination from Ms Flynn for SIPTU he maintained this view. It was over two years since the Complainant had driven a Fire Tender It was accepted that he had been a very experienced driver prior to May 2018 but the Legal /H &S and Insurance responsibilities of the Fire Service in 2022 had to take precedence. Accordingly, he had refused to allow a return to driving until he was happy that the ESDS had been successfully completed.

Ms Flynn pointed to the various National Fire Services manuals etc. An experienced driver of long standing in 2018, such as the Complainant, was effectively exempt from the ESDS requirement. The CFO was being unnecessarily pedantic and was acting illegally. The CEO letter had referenced a two-year suspension only. Once that period was passed the Complainant reverted to being a Driver and was perfectly entitled to the allowance.

3:3       Adjudication Conclusion & Summary

The issues largely rest on the chief Executive letter of the 18th December 2018. The Dismissal of the Complainant was averted subject to a two year “minimum period” reversion to a non-driving Fire Fighter position and a review by the CFO at the end.

It was a source of considerable annoyance to the Complainant that the CFO did not immediately allow him to revert to driving in December 2021.

On full review of all the Oral Testimony and written materials   the Adjudication conclusion has to be that the CFO was within his rights to insist on the ESDS course and only allow the Complainant back driving in May after the successful completion of the course.

The Driving allowance applies only when actually officially / physically categorised as a Driver.

The Non-Payment for December 2021 to May 2022, when the Complainant was not a Driver, is not a “Deduction” provided for in the Payment of Wages Act,1991.

Accordingly, the Complaint must be deemed unsuccessful.

Payment of Wages, Deductions, Driving Allowances