PWD2315

1.Appeal of Adjudication Officer Decision No(S) ADJ-00035307 CA-00051693-001

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 27 June 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-

DETERMINATION:

This is an appeal by Paul O’Sullivan, the Complainant against Adjudication Officer Decision ADJ-00035307 given under the Payment of Wages Act 1991. The Adjudication Officer held that the complaint was not well founded.

Background.

The Complainant submits that he is due the permanent rate of pay backdated to 6^thApril 2022. The complaint was lodged with the WRC on the 13^thJuly 2022. Therefore, the cognisable period for the purpose of the Act is 14^thJanuary 2022 to 13^thJuly 2022. This complaint is linked to Determination No EDA2329 which held he was not discriminated on the grounds of gender in respect of his rate of pay and Decision No LCR22795.

Summary of Complainant’s submission

The Complainant submitted that, after a third fixed term contract, he received a contract of indefinite duration from the Respondent on the 11^thDecember 2015 known as a Long-Term Flex contract (LTF). On the 18^thAugust 2021 the Complainant requested and received a statement of earnings from the Respondent. This statement indicated that he was a permanent employee and that his job title was assembler.

It is the Complainant’s submission that as a person on an LTF contract he earned less than a permanent employee, so he looked to have his rate of pay increased to that of a permanent assembler on the basis of the statement he received. He was aware that permanent assemblers were paid €1,671 euro per annum more than employees on LTF contracts. The Complainant accepted that LTF contracts are contracts of indefinite duration that have no end date, unlike his previous Fixed Term contract. The Complainant opened to the Court several printouts he had received from the Respondent some of which identified him as a LTF worker and others described him as permanent. It is his submission that this is acceptance by the Respondent that he is a permanent worker and therefore entitled to the permanent rate of pay. The Complainant accepts that the pay rate he is seeking is a red circled rate and that nobody has ben appointed to that rate since 2015. However, he believes that it is within the gift of the Respondent to appoint him to the rate as they are already classifying him as permanent.

Summary of Respondent’s submission

Mr Lowey BL on behalf of the Respondent submitted that the Respondent disputed that it made an unlawful deduction or any deduction at all. The Complainant’s contract is as an LTF worker, and he is paid the appropriate rate for that grade as agreed with SIPTU. The Complainant is seeking to be paid the rate of pay that applies to a cohort of workers who are red circled. He is not nor was he ever a member of that cohort of workers. The Complainant is seeking to establish that the reference to permanent on data extracted from the Respondent’s data base is sufficient to change his status from LTF employee to the permanent red circled category. Mr Lowey opened a number of cases to the Court including the case ofMarek Balans v Tesco Limited[2020] IEHC 55, where the High Court reiterated that the first thing the Court has to establish is what is properly payable to the Complainant. It is the Respondent’s submission that the Complainant was paid what was properly payable during the relevant period. He is an LTF employee who received the LTF rate of pay as provided for in his contract of employment and in a collective agreement with SIPTU.

The applicable law

Section 1 of the Act states:

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, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6) states.

• “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”.
  
  

As set out by the High Court in the case ofMarek Balan’s v Tesco Ltd[2020] 31 E.L.R. 125 and referenced by the Respondent’s representative, the first issue for the Court to consider is ‘what was properly payable’ to the Complainant. The Complainant accepts that his contract is as an LTF worker and that he received the rate of pay for that category of staff. Other than data extracts referring to him as a permanent worker(which by nature of his contract of indefinite duration he is), the Complainant did not produce any documents such as a contract or a collective agreement to show he belonged in the red circled category of staff and therefore entitled to the higher rate of pay.

The Court therefore determines that the Complainant during the relevant period was paid what was properly payable to him.

Determination

The Court having carefully considered the issues set out above and the totality of the submissions from both parties determines that the Complainant was paid what was properly payable to him during the relevant period and therefore his appeal must fail.

The appeal fails, the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CO'R	______________________
26 July 2023	Deputy Chairman