FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES: IARNRÓD ÉIREANN - AND - MR NICHOLAS MORONEY (REPRESENTED BY TRANSPORT SALARIED STAFFS' ASSOCIATION) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00039247, CA-00050943-001
The Adjudication Officer found the complaint to be well founded and ordered the Respondent to pay the Complainant compensation of €5,000. The cognisable period for the purpose of the Act is the 1stDecember 2021 to the 31st May 2022, the date the complaint was lodged with the WRC. Background The Complainant worked for the Respondent as a Station Manager in the Limerick District based in Thurles. Arising from Covid the company reviewed the viability of opening the booking offices on Sundays and Bank Holidays and concluded that going forward it was not viable to open them. This resulted in a loss of earnings for a number of staff for which they were compensated. However, the Respondent refused to pay loss of earnings to the Complainant as he retired on the 28thJanuary 2022. Summary of Complainant’s submission The Union on behalf of the Complainant submitted that in April 2020, as part of the Covid pandemic the Company closed all booking offices on Sundays and Public holidays. At the time, the Respondent noted that it was the intention that this would be a temporary arrangement. However, the Respondent then indicated that they wanted the closures to be permanent. Following negotiations both locally and under the auspices of the WRC the issues in dispute arising from the closure, went to the Labour Court who recommended a loss of earnings payment. The complaint to the Labour Court was in respect of Executive and Clerical members. The Complainant in this case was an Executive member. The Labour Court recommendation was initially only implemented by the Respondent in respect of Clerical members who received payment in December 2021. By letter of the 16thDecember 2021, the Union queried why the Executive members had not been paid. The Respondent replied on the 20thDecember 2020 stating, “I am not disputing there was a reference to Executive and Station Managers in the Trade Unions Submission to the Labour Court.” The letter went on to say that in some cases overtime would continue to be carried out by Station Managers so no loss would arise and indicated that a meeting would be arranged in the New Year to consider the specifics of each case and to establish if a claim should be considered. At a meeting on the 26thJanuary 2022 it was agreed that the Unions would submit the names of Station Managers and Executives who they felt should be included. The Complainant was one of the names submitted. The agreement was that the Respondent, would see if the criteria applied to them, and if it did, they would be paid the compensation for loss of earnings. The criteria to be met was that they worked exclusively in the Booking Office and could establish losses arising from the closure. The Respondent then excluded the Complainant from the process on the basis that he had retired in January 2022 and confirmed that in a letter of 29thMarch 2022. The Union on behalf of the Complainant submitted that as he had already incurred losses prior to his retirement he was entitled to the loss of earnings payments which fell due to be paid within the cognisable period. Summary of Respondent’s submission Arising from the Covid pandemic the Respondent suspended overtime except in exceptional circumstances. This resulted in the booking offices not opening on Sundays or Bank Holidays. The intention at the time was that this would be a temporary measure. Ultimately the decision was made to close the booking offices on Sundays and Bank holidays. The Union lodged a loss of earnings claim which was ultimately settled following a Labour Court Recommendation. It is the Respondent’s submission that initially the recommendation only applied to Clerical grades, though it is accepted that the Union raised Executive grades and Stationmasters in its submission to the Court and that is reflected in the Recommendation that issued from the Court. In support of its position that it only applied to Clerical grades, the Respondent sought to rely on an administrative letter from the Labour Court dated 6th August 2021 acknowledging the referral of the issue from the WRC and identifying the dispute as a dispute between Iarnrod Eireann and 45 Clerical staff. Following a meeting with the Union on the 26thJanuary 2022 it was agreed that eight station managers would be considered for loss of earnings as they worked exclusively in the Booking Office. While the Complainant also worked exclusively in the Booking Office, the Respondent excluded him from the process, on the basis that the agreement was not finalised until March 2022, and he had retired from the Company on the 28thJanuary 2022 and therefore would not sustain any loss into the future. The Respondent opened to the Court a letter of 30thJuly 2009 addressed to the Trade Unions which set out the parameters for considering loss of earnings as follows, “Inaddition loss of earnings compensation will be available where loss of regular rostered/structured earnings over a minimum period of 52 weeks prior to a defined change is determined, a lump sum payment of compensation will be paid, provided loss is sustained over 26 weeks post change. This lumpsum payment may not exceed twice the annual estimated loss or €10,000 whichever is the lower, in any one case”. They also opened a document headed Voluntary Severance Terms 2012, which set out a number of conditions in respect of an enhanced voluntary severance scheme which was open for a specified period of time with all voluntary severance exits having to be achieved by 31stOctober 2012. In that document under the heading “Leaving within 3 years of receiving Loss of Earnings Payment”it states,“20% of payment will be exempt from recovery, of the remaining 80%,1/36 will be deducted for each calendar month or part thereof that the period from date of loss to date of exit from service is short 3 calendar years.”. The Responded submitted that, this was the basis for not granting the Complainant the loss of earnings lumpsum as he had retired from the company. They confirmed to the Court that they had not processed the Complainant’s complaint solely on the basis that he had retired. In terms of the process for calculating the loss of earnings the parties had agreed that the figure would be overtime earned in 2019 and measured against overtime if any earned in the period May 2021 to October 2021 with the figure for that period being doubled. The overtime in question had ceased in April 2020. 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;
The Respondent at the request of the Court processed the Complainants claim to see if he would qualify for a payment. The outcome was that the Complainant’s losses in the relevant period exceeded €10,000 and, therefore, if compensation was due it would fall to be capped at that figure as set out in previous agreements. The High Court in the case ofMarek Balan’s v Tesco Ltd[2020] 31 E.L.R. 125 stated that the first issue for the Court to consider is ‘what was properly payable’ to the Complainant. The Respondent has collective agreements in place to deal with loss of earnings. Under the 2009 agreement in order to qualify for such a payment there had to be a loss of regular rostered overtime for a period of 26 weeks after the change was implemented, before compensation would fall to be paid. In the case to hand the overtime ceased in April 2020 so the Complainant met the threshold of having had a loss for a minimum of 26 weeks after the overtime ceased. He was also still employed during the agreed period to measure the loss which in this case was May 2021 to October 2021. It was the Union’s position that the letter of 30thJuly 2009 to the Unions was the agreed basis for processing loss of earnings claims. In respect of the second agreement the Respondent sought to rely on, the agreement states that the terms contained in it applied to enhanced Voluntary Severance Terms for a specified period of time. There was nothing to indicate that this permanently replaced the existing 2009 arrangement. It is also clear that the Respondent by not processing the Complainant’s complaint, were not applying the terms of that agreement to him either, as that agreement allowed for 20% of the payment to be exempt from recovery. It was also not in dispute that the Complainant was not in receipt of a voluntary Severance Agreement which was what that document referred to. In response to a question from the Court the Representative for the Respondent confirmed that the clause had only been applied where within three years of receiving a loss of earnings compensation a worker became eligible to receive voluntary redundancy. She confirmed she was unable to identify for the Court other occasions where it had applied. The Union stated they were unaware of this clause being applied outside of the circumstances of a Voluntary Severance arrangement. The Court determines that on the balance of probabilities the collective agreement that was in operation at the relevant time was that set out in the letter of 20thJuly 2009 addressed to the Trade Unions. Determination The Court having carefully considered the issues set out above and the totality of the submissions from both parties determines that the Complainant met the requirements set out in the collective agreement and therefore, qualified for compensation in respect of his loss of earnings. The Court determines that compensation for loss of earnings was properly payable to the Complainant. The Court also determines that the failure to pay the compensation for loss of earnings, which in this case amounted to €10,000, during the cognisable period, or at all, constitutes a deduction for the purpose of the Act. Therefore, the Respondent shall pay the Complainant the amount of €10,000. The appeal fails, the decision of the Adjudication Officer is varied as set out above. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
