Complainant

Respondent

Parties

Nicholas  Moroney

Iarnrod Eireann

Complainant

Respondent

Anonymised Parties

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Representatives

Patrick Mc Cusker TSSA

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-00050943-001

31/05/2022

The hearing was conducted remotely in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

 The Complaint Form was received on 31 May 2022 to the Workplace Relations Commission.

The Complainant swore an affirmation.

Ms Sharon O’Rourke, Industrial Relations Manager wore an affirmation, as did Mr John Kenny, District Manager and Patrick Casey, Passenger Services Manager. Mr Niall Flynn, Industrial Relations Officer appeared but did not give evidence. 

Submissions were exchanged between the parties. Each party was given a full opportunity to present their evidence and cross examine the other side. Both sides confirmed at the closing of the hearing that they had an opportunity to set out their claims in full.

The Complainant is a retired Station Master.

It was the Complainant’s evidence that the Respondent failed to pay him loss of earnings following a Labour Court Recommendation LCR22495, dated 15 November 2021.

It was his evidence that the payment was due to the closure of booking offices, initially due to the Covid19 pandemic in March 2020 and subsequently, following a business review it was decided to close the booking offices permanently.

The Complainant now seeks payment €10,000, similar to that received by his colleagues, following agreement between the Trade Union to the Respondent that Station Masters should be included in payment for loss of earnings. The Complainant stated in his evidence that he should have received the payment on 24 December 2021.

Preliminary Point

The Respondent raised a preliminary objection on the basis the payment was compensation for loss of office and therefore, falls outside the definition of wages pursuant to the Payment of Wages Act 1991. It was submitted that the Complainant is pursuing a collectively agreed policy, negotiated with the Trade Union and therefore, “does not fall within the band of wages.”

Substantive Issue

In response to the claim the Respondent gave evidence that the payment was for loss of future earning and where the Complainant had retired in January 2022 he was not entitle to the payment.

Preliminary Point

The Payment of Wages Act 1991 is clear in its definition of wages. Section 5 refers to inter alia the statutory deductions that must be made from wages.  The purpose of the list of non-wage payments in Section 1 is, not to exclude them from the jurisdiction of the 1991 Act, but to distinguish them as their treatment for the purposes of inter alia income tax deductions.  

Having carefully reviewed the Recommendation of the Labour Court, LCR22495, it is clear when the Court refers to payment for “loss of earnings” it is resulting from the loss of overtime for Sundays and Public Holidays and falls within the definition of wages.

Substantive Issue

There is no contest as to the fact the booking office closed.

It is noted that a colleague of the Complainant did receive the payment as per the correspondence between the Complainant’s Trade Union and the Respondent, dated 16 February 2022 and 10 March 2022.

The Respondent did produce a letter, dated 30 July 2009, which does contain a reference period as to how such payments were calculated;

“Loss of earnings compensation will be available where loss of the structured earnings over a minimum period of 52 weeks prior to change is determined a lump sum payment will be paid, provided the loss is sustained over 26 weeks post the change. The lump sum payment may not exceed twice the annual estimated loss or 10,000 whichever is lower, in any one case.”

The Complainant submitted that the formula does not stipulate for future but actual loss of earnings.

Finding

Having review the evidence before me, I find that the complaint is well founded on the basis that the payment directly related to the closing of the booking office, initially due to the Covid19 pandemic in April 2020, and subsequently following a financial review. There is nothing before me to suggest it was limited to future losses.

It is accepted that this Complainant was an employee during this period, April 2020 to the date of his retirement in January 2021. I accept his uncontested evidence the he did work in the booking office on a rostered basis for 25 years.

Redress

Section 6 (2) of the Payment of Wages Act 1991 provides for redress:

(2) Where a rights commissioner decides, as respects a complaint under this section in relation to a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”

I accept the uncontested evidence of the Complainant that he would have worked 32 Sundays and 4 public holidays during the period from April 2020 to January 2021 and award the Complainant the compensatory sum of €5,000 as being fair and reasonable to cover his period of actual loss of overtime only.

I find the complaint to be well founded and award the Complainant €5,000 in compensation.