Complainant

Respondent

Parties

Thomas  Goulding

South Dublin County Council

Representatives

Keith Irvine 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-00046746-001

19/10/2021

The Complainant is employed as a Water and Drainage Inspector with the Respondent. He stated that he did not receive the overtime payments he was entitled to on various occasions in June, July and August 2021.

The Complainant asserted that an agreement was made with the Respondent whereby he would receive an agreed minimum number of overtime hours for being on call after normal working hours during the week and at the weekends. Contrary to this agreement however, the Respondent chose not to pay him for all of the hours that he asserts were properly payable to him on various occasions in June, July and August 2021.

The Respondent stated that the Complainant occasionally worked a number of overtime hours in the cognisable period in question and was paid fully for these hours, in accordance with his contract of employment and the overtime rates applicable in Circular EL 02/2021, a local agreement. It was also disputed in evidence that there was an agreement to pay the Complainant an agreed minimum number of overtime hours for being on call after normal working hours during the week and at the weekends.

THE LAW

The Payment of Wages Act 1991 at Section 5, in relevant part, provides as follows:

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.

And

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.

Application of the Law

The provisions of section 5(6) of the Act were considered by Mac Grath J in an appeal on a point of law from a decision of the Labour Court in the case of Marek Balans v Tesco Ireland Limited [2020] IEHC 55. In that case Mac Grath J re-affirmed the proposition that, in a section 5(6) application, the first matter to be determined is what wages are properly payable under the contract of employment.

I am therefore required, in investigating the instant case, to establish what wages were properly payable in accordance with the Complainant’s contract of employment. I note firstly the Complainant’s assertion that he did not receive the agreed minimum number of overtime hours for being on call. I further note the Respondent’s assertion both that there was no such thing as an agreed minimum number of overtime hours for being on call and that the worker was paid for all of the overtime hours that he worked in accordance both with his contract as well as the local agreement, namely Circular EL 02/2021.

In the absence of any supporting evidence having been presented by the Complainant to suggest that an agreement existed whereby he would be paid overtime hours for being on call and having regard both to his contract of employment as well as the Circular EL 02/2021 which sets out the overtime rates applicable to him, I prefer the evidence of the Respondent and find that the Complainant was paid for all of the hours that were due to him.

I find that this complaint is not well founded for the reasons set out above.