FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES: LIMERICK CITY AND COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - SEAN CONSIDINE (REPRESENTED BY SIPTU) DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00030744, CA-00040949-001 DETERMINATION: Mr. Considine, ‘the Complainant’ is an Executive Engineer with Limerick City and County Council, ‘the Respondent’. In April 2020, the Complainant’s manager advised him that he was being transferred to a different work location. The Complainant raised a grievance under the Respondent’s Grievance Procedure. On 9 June 2020, the Complainant was removed from the payroll for not reporting to the new location. Following mediation, it was agreed that the Respondent would pay the Complainant’s wages from 17 August 2020. On 12 November 2020, the Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, under the Payment of Wages Act, 1991 for payment for the period 9 June 2020 to 17 August 2020. An Adjudication Officer, ‘AO’, decided that the wages in question were not properly payable for the period concerned. The Complainant appealed to this Court. The Court’s attention was drawn to the fact of other proceedings involving the two parties. However, the Court is satisfied that it has jurisdiction to hear the matters before it and was not made aware of any awards made in any other forum based on the same facts. Summary of Complainant arguments. The Complainant lives in Shannon, Co. Clare and cares for his son who has considerable health issues. Because of the pandemic, in March/April 2020, the Complainant was granted leave to work from home. On 28 April2020, the Complainant was told that his place of work was being transferred to Kilmallock/Cappamore. The Complainant protested against this move. He raised a formal grievance under the Grievance Procedure on 13 May 2020. While awaiting the processing of the grievance, the Respondent insisted that the Complainant relocate. However, the Respondent’s Grievance Procedure states that ‘During the course of the Grievance Procedure the status quo will be maintained and work will continue without interruption’. It goes on to state that ‘No industrial action of any form will be taken by either side during the course of the procedure’. Despite this, the Complainant was pressurised to relocate and was removed from the payroll on 9 June 2020 for refusing to re-locate. The union sought the maintenance of the status quo, as per the procedure, and sought that the Complainant be allowed to appeal the action taken against him. He was never afforded any appeal, although it was open to the Respondent to utilise its own Disciplinary Procedure. The Complainant also lodged a complaint under the Dignity at Work policy against his manager, Mr. Conor Culloo, on 18 June 2020. Also on 18 June 2020, the Complainant’s grievance was heard. The Complainant continued to work from home until 1 July 2020 when his access to work systems was removed. After correspondence from the union to the Respondent, a process of mediation was agreed. There was an agreed outcome but, subsequently, the Complainant was told to report to Mr. Culloo, an instruction to which he took exception in view of his complaint. Following negotiations, the Respondent agreed to restore the Complainant to the payroll from 17 August 2020 and the non-payment from 9 June 2020 to 17 August 2020 was referred to the WRC. Further negotiations ensued but the Respondent kept ‘moving the goalposts’ by changing suggested locations. At a ‘back to work’ meeting on 26 November 2020, the Complainant was issued with an inappropriate list of duties. The Complainant was refused the right to take annual leave and was again removed from the payroll on 30 November 2020. He was certified sick for that period. The Complainant had no income from June to November 2020 when the mediation outcome provided for backpay to 17 August 2020. The Complainant worked, (without pay) from 8 June 2020 to 1 July 2020. From 1 July 2020 to 17 August 2020, his employer prevented him from earning a living. There were no fair procedures. The Respondent breached their own procedures. The Complainant was denied natural justice. The Respondent locked out the Complainant. Summary of Respondent arguments In March/April 2020, following a review of engineering assignments, the Complainant was re-assigned to a different area and, similar to others being re-assigned, he was informed. The Complainant submitted a sick certificate on 29 April 2020. He raised a grievance on 17 May 2020 and submitted a further certificate for 18 to 22 May 2020. He declined the offer to have the grievance heard remotely. The Complainant was advised that he would be required to make the relevant move and that it would be noted that he had done so under protest. He continued to refuse the move despite further correspondence. On 9 June 2020, the Complainant was advised that he was being removed from the payroll for failing to carry out a legitimate instruction. In order to be paid a salary the Complainant is required to attend work. Following correspondence and engagement with the Complainant’s union representative, a mediation process was agreed and agreement on an outcome was signed by the Complainant on 28 October 2020. Subsequently, another role for the Complainant became available and it was agreed that he would fill that on 12 November 2020. On 11 November 2020, the Complainant declined the offer of assignment. On that basis, he was assigned back to the original intended transfer location. The mediator met with the Complainant, who indicated that he would now accept the post to which he had been assigned from 12 November 2020. That post was no longer available. The Complainant failed to attend for work. On 28 November 2020, the Complainant’s application for annual leave was refused as he had not attended for work. A sick certificate was received by the mediator. The Respondent advised the Complainant’s representative that he was in breach of the mediation agreement. Further correspondence ensued regarding requested annual leave. No progress was made. Subsequent correspondence took place in which the Complainant expressed a willingness to accept transfer, subject to not being required to work to Mr. Culloo. Following a WRC hearing in December 2021, further discussions took place and agreement was reached on the Complainant returning to his original workplace in a different role, which he did when medically certified as fit to do so from 20 April 2022. In determining what is properly payable under the Act, an inherent component of any employment contract is the implicit duty for employees to perform all reasonable and lawful tasks required of them. The Complainant is not entitled to be paid for a period when he refused to attend for work. As noted inDeane v Wilson(1906) 2 I.R. 405,‘There was no contract to pay unless it was earned.’ Outside of periods when he was certified as unwell, the Complainant was capable of performing his contract but chose not to do so. The contractual obligation to pay him then ceased. There is no proposition in law that somebody who makes themselves unavailable to work is entitled to be paid. The applicable law Payment of Wages Act, 1991 1 Interpretation. "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, 4.—(1) An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees. 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. Deliberation. InSullivan v. Department of Education (1998) ELR217,the Employment Appeals Tribunal held that if an employee does not receive what is ‘properly payable’ to him, this can amount to a deduction within the meaning of the Act. In accordance with the direction given to this Court by the High Court in the case ofMarek Balans v Tesco Ireland (2020) IEHC55,the first task for the Court in examining if an unlawful deduction has been made is to determine what was ‘properly payable’ to the Complainant. In determining what is ‘properly payable’ in the instant case, the Court has to consider if there was an obligation on the Respondent to pay the Complainant for the period in question from 9 June 2020 to 17 August 2020, in circumstances where he was refusing to attend for work in a place designated by his employer and to which his employer was entitled to assign him under his contract of employment. In undertaking such consideration, the Court noted that the Complainant advised the Court hearing that he had concerns about Covid exposure, given the health difficulties of a family member. Such considerations might be of relevance in certain circumstances but, as the Court often notes, this Court does not have medical expertise and no medical certification was provided either to the Respondent at the time or, subsequently, to this Court to substantiate any such concerns. The Court cannot find any basis for concluding that there was unreasonableness on the part of the Respondent in seeking to transfer the Complainant. The Complainant’s representative made much of the provision in the Respondent’s Grievance Procedure that states, ‘During the course of the Grievance Procedure the status quo will be maintained and work will continue without interruption.’ It was argued that this meant that the proposed transfer should have been delayed pending the outcome of the process to consider the Complainant’s grievance. In fact, it seems clear to the Court that the purpose of this provision is to ensure that there is no adverse impact on the work required to be carried out by the Respondent. A subsequent provision that states that no industrial action will take place during the procedure, in the view of the Court, bears out this interpretation. It was argued for the Complainant that the actions of the Respondent amounted to industrial action. The Court does not concur. It was open to the Complainant to do as instructed under protest pending the outcome of the examination of his grievance. He chose not to do so. The Complainant’s representative argued that the Respondent was obliged to follow its Disciplinary Procedure in dealing with any concern it might have had regarding the Complainant’s conduct. The Court disagrees. An employment relationship is an undertaking by a worker to carry out work for an employer in return for remuneration. Remuneration is only applicable if a worker carries out what is required of them, subject to any requirement being lawful and reasonable. It follows, therefore, that in the instant case once the Court is satisfied that the Respondent acted lawfully and reasonably, no remuneration was ‘properly payable’ when the Complainant chose not to make himself available to work as instructed. That is not a disciplinary action governed by the Respondent’s procedure, it is a basic, self-evident, requirement of the transaction at the very heart of every employment relationship. The ’Deane’ case to which the Respondent referred, predates the Act under which the appeal in the instant case is before the Court but the principles enunciated are still valid. The following observation in that case is equally applicable to the instant case; ‘The non-payment took nothing from her to which, in any view, she had become entitled, or to which, when the week ended, she could ever have become entitled. It was simply withholding payment of what she had not earned…’ Determination. The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
