Complainant

Respondent

Parties

Claire  O'Connell

Office of the Revenue Commissioners

Representatives

  Self-represented

Cathal McGreal BL instructed by the Revenue Solicitor, Office of the Revenue Commissioners

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00048934-001

03/03/2022

The Complainant commenced her employment with the Respondent as a clerical officer in its Limerick office on the 11/3/2019.

The Complainant referred a complaint under the Payment of Wages Act 1991 (‘the Act’) to the Workplace Relations Commission (WRC) on 3/3/2022 claiming that the Respondent had made unlawful deductions from her salary on the 28/9/2021 in the amount of €1621.32. At the hearing the Complainant stated that she was no longer relying on this figure or date as regards the alleged deduction and stated she wasn’t sure how she arrived at this figure.  I informed the Complainant that she needed to clarify the value and date of any alleged deductions and afforded her two weeks to reply from the date of the hearing to clarify same, with a further two weeks for the Respondent to reply.   

This case concerns an alleged unlawful deduction which arose due to the application of various regulations governing the allocation and entitlement to paid sick leave pertaining to civil servants. These deductions arose when the Complainant went out on a period of sick leave commencing on the 23/9/2021. In light of the Complainant’s sick leave record to date the Respondent determined that the Complainant no longer had access to paid sick leave. As a result, the Complainant was advised by the National Shared Services Office (‘NSSO’) in writing on 1/10/2021 that she would be placed on a Temporary Rehabilitation Rate (‘TRR’) on the basis that she had exceeded the allowable limit of 183 days sick leave over a four year rolling period. The Complainant received a further letter in May 2022 advising that an overpayment had occurred in the amount of €917.73 and that a recoupment plan of €45.03 per week would commence on the 3/6/2022.

The Respondent denies the claim on the basis that the Complainant has not established that the payment of wages to which she refers in her complaint was payable to her during the period in question which the Respondent submits is a three week period from 4/9/2021 – 28/9/2021.                                                                                                                                                                                                                                                                                                                               

The following is a summary of the Complainant’s case as set out in the claim form and in the written statement of facts submitted by her supported by the evidence provided at the hearing.

The Complainant stated in her complaint form that as she had been out of work due to ill health while on probation, therefore she had reached the maximum number of days allowable for paid sick leave while on probation and as a permanent employee. This situation arose as she had a lengthy period of certified sick leave absence from end of September 2019 to October 2020 in excess of 300 days sick leave during this period.

As the Complainant was on probation during this period once she reached the allowable number of full and half days sick leave (46 days) she was placed on nil pay in January 2020. As a result, the Complainant’s employment and consequently payroll status was paused at this time. The Complainant does not dispute this and states that she was very grateful to her employers to allow her the time to recuperate and come back to work.  

The Complainant was signed off e-probation on the 11/1/2021 and on the 12/02/2021 she received confirmation from HR that her probation period had ended, and that she was established as a permanent employee. The Complainant states in her submission that through the recoupment process she had paid back all the monies that she owed to the Respondent which included pay given to her over the maximum allowable for sick days while on probation (46 days) which she had paid back in full by May 2021. The Complainant did not raise any issue in relation to this overpayment and recoupment process. 

The Complainant states in her submission that due to work related stress at the end of September 2021 she had to take a further period of sick leave for approximately 1 month. She submits that this sick leave period from 23/9/2021 until 22/10/2021 was deemed by the NSSO to have exceeded the maximum 183 days that is allowable and therefore she was advised that she would not receive any sick leave pay for this period. The Complainant received a letter from the NSSO in October 2021 advising her that as she had exceeded a total of 183 days over a four year rolling period that she would be place on nil pay from the 28/9/2021. However, she was further advised that she had been approved for TRR and that she would be advised in due course of the TRR rate.

The Complainant sent several emails to the NSSO seeking clarity on various matters regarding access to sick pay and the effects of being placed on a TRR rate. The crux of the Complainant’s query concerned the fact that while the Complainant was on sick leave during her probationary period once she exceeded the maximum allowable days for a probationer she was placed thereafter on nil pay. The Complainant’s query as set out in various emails concerns the interpretation of S.I. No. 124 of 2014 in particular Regulation 10 which defines the period of sick leave as “ …there has occurred a period of sick leave that is in excess of 183 days (being a period of 183 days in respect of which remuneration at the full rate or the half rate has been paid) “. 

The Complainant states in her submission that “ the following regulation is the basis of the case that I have asked the WRC to adjudicate for me”, referring to the interpretation of Regulation 10 of S.I. 124.  The Complainant contends in her submission that as she was not paid the full or half rate of pay for a period of 183 days, she was paid for the allowable period of 46 days as a probationer, that she is entitled to be paid for any sick leave absences such as the period from 23/9/2021 until 22/10/2021. 

The NSSO on behalf of the Respondent sent an email dated 19/10/2021 to the Complainant, with  advices from DPER which stated that “When considering the process of calculating access to paid sick leave the regulations as laid out in SI 124/2014 must be viewed as interconnected rather than individual regulations in isolation. It should be noted there are several references to periods of sick leave as opposed to periods of paid sick leave…….This indicates that all sick leave, whether paid or unpaid, is included in these reference periods.”

In response the Complainant submits that this interpretation of regulation 10 is incorrect and relies on the phrase set out in regulation 10 referring to the phrase “paid” in relation to the period of 183 days and the fact that as stated in her submission “the responses that I have received from my employers and DPER do not take into account the fact that I was not “paid” for 183 sick days”.  The Complainant further states in her submission that “My employers and DPER have to date failed to demonstrate to me and to my satisfaction the applicable regulations which specifically mention “unpaid” as being included within the bounds of Regulations 10.”

The Complainant submits in her submission that as a result of the decision  to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        place her on a TRR rate of pay for the period 23/9/2021 until 22/10/2021 that she has been impacted in the following ways:-

·       The Complainant’s increment date has been affected by the TRR payments as it was pushed out by a month. Her increment date was moved from the 9/10/2021 to the 5/11/2021 resulting in a loss of €40 weekly x 4 weeks;

·       The Complainant’s pension is affected as a result of being “paused” for work or placed on nil pay;

·       The Complainant has no entitlement to any sick leave payment in the event she becomes ill and needs to take sick leave for the duration of the four year rolling period;

·       The Complainant was and is subject to the recoupment process to recover various overpayments some of which were placed on hold pending the outcome of this case.

The Complainant further stated that the repayments did start in 2022 but clarified in her first submission “much to my surprise I received the payments I had made back into my salary a few months later. I was advised that the full payments had been made and that I did not owe any more”.

The Complainant in her submission included various emails between herself and the NSSO in this regard. By way of email from the Complainant dated 15/08/2022 to the NSSO she stated “ I have waited a couple of weeks now for a letter and or email to let me know why no further recoupments are not being taken. And in fact I was paid back money that had already been paid”. In reply by email dated 24/08/2022 from the NSSO Payroll Contact to the Complainant it was stated “I have forwarded your email to payroll to query the payment of €360 that was refunded to you in the Pay period 202230”. The NSSO in this email also confirmed the following “You are currently on point 5 of the salary scale. The date we have on file for your next increment is 05/11/22. Increments are not automatic and must be released by HRSS to PSSC.”

At the conclusion of the hearing the Complainant reiterated that she didn’t know how she arrived at the figure in the complaint form and was no longer relying on it. She stated that her loss was limited to the amount of the overpayment set out in the letter of the 12/5/2022 of €917.73 and was she also claiming for the value of the loss of her increment by virtue of the fact that the increment date was pushed out by month. She stated that her salary was reduced by €45.00 from the 3/6/22. She also stated that she did receive a refund from the monies she had paid back.

At the conclusion of the hearing the Complainant was informed that in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 that I am confined in my jurisdiction to inquire into any alleged deductions under the Act to a particular period, namely, 6 months preceding the lodging of her claim form on the 3/03/2022.

Further to my request to clarify the value and dates of all alleged deductions the Complainant submitted a further submission dated 30/1/2023. In the submission the Complainant stated that at the hearing it was agreed by all parties that “I received some pay after the 28/09/21 (start date of sick leave) but I was advised in a letter by the HR advisor of NSSO that I was on NIL pay from the 28/09/21. Therefore the recoupments team contacted me on the 12/05/22 to collect what they deemed to be overpayments I had received in 2021 ( you will note how long it took to get an actual figure).”

The Complainant confirmed that she was claiming the value of the overpayment as stated in the letter of 12/05/22 of €917.73 gross and also the value of the increment that was owed to her on the 9/10/22 which was not started until the 05/11/22 of €39.34 x4 totalling €1075.09.

The Complainant concludes her submission by stating “To summarise my case it hinges on the word “paid sick leave” in regulation 10.”

Evidence of the Complainant, Claire O’Connell

At the start of the hearing the Complainant stated she didn’t know how she arrived at the figure in the complaint form regarding the alleged unlawful deduction of €1621.32 on the 28/9/2021 and was no longer relying on it.

The Complainant stated that she commenced employment as a clerical officer on 11/3/2019. She stated that she had a couple of incidents of sick leave in the autumn of 2019 which amounted to 2.5 weeks of sick leave. On the 2/12/2019 the Complainant confirmed that she started a lengthy period of certified sick leave.

The Complainant stated that by the 1/1/2020 she had reached the maximum allowable days of paid sick leave for a probationer which totalled 46 days of full and half pay.

The Complainant stated that she agreed with the dates provided in the Respondents timeline document and agreed with all the correspondence furnished by the Respondent.

The Complainant stated that on the 5/10/2020 she returned to work and recommenced her probationary period. She stated that she had a second period of sick leave in September 2021 and was due her salary on the 28/9/2021. She stated that she was on certified sick leave for approximately one month and was a paid a TRR rate during this period which was calculated based on her length of service and was a very low figure.

The Complainant stated that she was due her increment in October 2021 which was moved to November 2021 and therefore she has missed out on the value of a month’s increment. 

The Complainant stated that the main issue in dispute is the interpretation of Regulation 10 of S.I 124 and her understanding of that provision. She stated that she has more than the allowable maximum of 183 days but has not been paid for 183 days and has only been paid for 46 days and therefore she submits she is entitled to payment for the period of sick leave from the 23/9/2021 until 22/10/2021.

The Complainant confirmed, in reply to a question from me regarding the amount of loss/deduction that she is claiming, that she was relying on a letter from the NSSO dated 12/5/2022 where it was stated that she owed an overpayment in the amount of €917.73. She also stated that her increment date was moved by a month to November 2021.

The Complainant stated that in August 2022 she went into hospital and she was out on sick leave for these weeks. She further stated that she has not had her wages deducted for these two weeks.

The Complainant confirmed that she was no longer relying on the figure in her complaint form and that her loss was limited to the amount of the overpayment set out in the letter from the NSSO dated 12/5/2022 of €917.73. She stated that her salary was reduced weekly by €45.00 from the 3/6/22. She also stated that she did receive a refund from the monies she had paid back.

There were no questions put to the witness by way of cross examination.

The Respondent submitted a detailed submission setting out the facts, legislative background and timeline relevant to this case. Two further booklets were received containing the relevant legislative provisions and Circulars, and a booklet of all relevant correspondence.  The following is a summary of the Respondent’s case as set out in the submission and documentation furnished supported by the oral submissions of Counsel and evidence provided at the hearing.

Counsel on behalf of the Respondent submits as follows:-

It is submitted on behalf of the Respondent in its written submission that the main issue in this case arises from a piece of legislation dealing with sick leave and conditions governing access to paid sick leave. It is submitted that to state the rule at its absolute simplest;

·       A worker may be able to access up to 92 days of fully paid sick leave, and 91 half-paid sick leave, in any one year. But this is subject to a 4- year limit of 183 days sick leave.

·       This is the amount of leave that is permissible but not mandatory. The rules tell us what is the maximum, but not the minimum. The part in parentheses in Regulation 10 is a ceiling not a floor of benefits. In other words, it is not, as a matter of law, a legal right to receive the maximum paid sick leave. The employer retains some degree of discretion and standard practice does still apply.

·       The countable days for these 183 days in a 4-year period limit are sick days of any description, whether paid, half-paid, nil-pay or part of some other subsidised sick leave. 

Applying the above rules to the Complainant’s case it is submitted that when the Complainant went on sick leave on 23 September 2021, her access to sick leave remuneration was considered on the basis of her accumulated sick leave on that date. She had exceeded 183 days sick leave in the previous four years (she had in fact accumulated in excess of 300 days sick leave). It is asserted that therefore she had no automatic access to any sick leave remuneration and got paid TRR in accordance with Part 5 of the Regulations.

It is submitted that this is an unusual case, based upon the fact that the Complainant accumulated a very large amount of unpaid sick leave before she reached the 183-day maximum simply because she exhausted the much lower maximum of 46 days when she was a probationer. It is further submitted that it is a practical reality that probationers often do not become established with such high levels of sick leave.

Furthermore, it is submitted that by the time the Complainant became established on the 12/2/2021 and had access to sick pay above the maximum allowable to probationers, the Complainant had already taken well over 300 days. As the Complainant took a further 25 days sick leave from 23/9/2021 until 22/10/2021, it is submitted that the key issue in this claim is that these 25 sick days are still well outside of the agreed thresholds as the Complainant is still well beyond 183 sick days in a 4-year period. Counsel for the Respondent submits that the Complainant will simply have to wait until the 183 sick days falls off her record (its i.e., until her service recovers from the very large amount of sick leave she had in her first 2 years of employment).

It is submitted that the Complainant’s position is perhaps best understood as a person commencing employment with over 300 days of sick leave where her access to paid sick leave is curtailed by a limit of 183 sick days above which she cannot access paid sick leave.

Legislative background

It is submitted that the legislative background is important because it helps to understand the key instrument in this case, the Public Service Management (Sick Leave) Regulations 2014 (S.I. 124 of 2014) (“the Regulations”). The 2014 Regulations were made pursuant to the Public Service Management (Recruitment and Appointments) (Amendment) Act 2013 (“the 2013 Act”). The 2013 Act in turn made certain amendments to what might be called the principal Act of 2004 (for the purpose of these submissions). The 2013 Act inserted Part 7A into the Public Service Management (Recruitment and Appointments) Act 2004 (“the 2004 Act”). The principal Act is the Public Service Management (Recruitment and Appointments) Act 2004.

It is submitted that Section 58B of Part 7A of the 2004 Act conferred on the Minister for Public Expenditure and Reform the power to make the Regulations the subject of these proceedings. It is further submitted that the Minister did precisely what was required of him in S.58(B(2) in making Regulations 9 and 10 of the 2014 Regulations. Note that this does not provide that ‘remuneration shall be paid in respect of … etc’. It provides that ‘no remuneration shall be paid in respect of …etc.’. It is a cap on a highly conditional facility, not a guarantee of a fixed sum of sick pay.

It is  further submitted that the Minister was obliged to limit remuneration based on a number of days within a given period. He did so in a two-fold way by providing for two lookback periods: the first is a 12-month look-back within which 6 months of full or half-paid sick leave may be taken (Regulation 9). The second is a 4-year look-back period that limits sick leave to those who have taken leave (any sick leave) below a certain ceiling. It is asserted that this is also consistent with the principles outlined in Circular 5 of 2018, Arrangements for Paid Sick Leave.

As stated in the submission when the probationer becomes established, a new limit of 183 days replaces the old limit of 46 days. What does not change for a probationer or an established public servant, is the 4-year period over which the access to paid sick leave is given. This is referred to as the ‘look-back’ period. This is because a probationer can have their probation ‘paused’ during extended sick leave and that occurred in this case from 27.1.20 to 5.10.20. The 4-year look back period takes account of all service in that time period, probationary and established. The material point is that the Complainant exceeded the established thresholds, regardless of whether they were on probation or not, and therefore has no further access to paid sick leave (i.e., full or half pay) until such time as they work up enough consistent service to drop back down within the thresholds.

Furthermore, it is submitted that Regulations 9 and 10 cannot be understood to say the same thing but with two different look-back periods. In this regard if the interpretation that the Complainant argues is the correct one, that would require a reading of the Regulations to say that Regulations 9 and 10 do precisely the same thing, placing the same 183 paid sick day limit on paid sick leave but in the case of Regulation 9 with a limitation period of 12 months and in Regulation 10, a limitation period of 4 years. It is argued that this would be, self-contradictory, futile and absurd on the basis that a statute cannot be read in a manner that results in an absurdity or futility. Reliance was placed upon, Statutory Interpretation in Ireland, Dodd and Cush, Bloomsbury Professional, 2018, at para 7.52.

It is submitted that the words that fall away, as absurd, are the words ‘that has been paid’ in Regulation 10. Alternatively, they are a reference simply to the 183 days composed of 92 days and 91 days that are paid for in the normal course (‘that has been paid’) under Regulation 9.

It is further submitted that both of these limitations, Regulations 9 and 10, apply from the day of any new period of sick leave and run backwards in time. Crucially they both start on the same date and run consecutively so that the second limitation overlaps with the first. They must refer to something substantively different. They cannot refer to the same type of paid leave limited by two different periods of time.

It is highlighted that the focus should be firstly to consider sick leave, not paid sick leave. Access to paid sick leave is only an analysis that comes after considering the amount of sick leave that has been taken. This is because not all sick leave is paid (where access is given). And even if it is paid, it may be paid in a variety of different ways: fully paid, paid at half rates or paid under the Temporary Rehabilitation Remuneration or ‘TRR’ rate (roughly speaking pension rates). Therefore, it is argued that it is an oversimplification to think that there are only 3 types of sick pay statues: full, half or none and that it is perhaps this simplification, however understandable, that has led to this claim.

It is submitted that all of these issues are considered in detail in the Department of Expenditure and Reform report entitled ‘Review of the Public Service Sick Leave Scheme, Management Report and Recommendations’, of August 2016 (‘the DPER Report of 2016”), in particular, recommendation 10 of that Report was highlighted which states:

“10. Count All Types of Sick Leave in the 4-Year Look Back

Standardise the look back by counting sick leave at full pay, half pay, TRR and unpaid sick leave towards the threshold of 183 days for the purpose of determining access to sick leave (at full and half pay). This will ensure that practices are uniform across the sectors and reflects the original intention of the Scheme.”

It is submitted that is precisely what was done in this case and therefore represents best practice in applying the relevant Regulations and Circulars.

It is further submitted that this practice has now been sealed by approval in the ruling of the Labour Court in In LCR21812 Department of Public Expenditure and Reform v Public Sector Trade Unions and Associations. The Court was asked to consider outstanding issues in collective negotiations arising from the 2016 Report. The Court stated, (emphasis in bold),

“The Court notes also that the parties are agreed on a series of other recommendations contained in the Review of the operation of the Public Sector Sick Pay Scheme. The Court’s own Recommendation below deals with the range of issues upon which the parties were unable to find agreement.

The Court’s Recommendation is as follows: […]

For the purposes of the 'look back' full account should be taken of periods of benefit under TRR. […].

What this recommendation establishes for the purpose of this case is the following:

a. The 2016 Report is now a Labour Court-approved agreement.

b. The look-back period of 4 years incorporating nil-pay was clearly not an issue as an agreement had been reached between the parties and the Labour Court makes no mention of it.

c. The one issue concerning the look-back – the payment of temporary rehabilitation remuneration (‘TRR’) was resolved in a manner which clearly shows it is taken into account. This means that fully paid and half-paid leave are not the only types of leave that are taken into account. And because the balance of the 2016 Report was agreed, this goes beyond those two types of leave to other arrangements pertaining to leave: all sick leave, including TRR and nil-pay.

It was submitted that for the purpose of disposing exhaustively of the point, Regulation 9 is the provision for the 12-month look-back period. It is a provision which uses the permissive ‘may’ not the mandatory ‘shall’ and it is clearly a provision that determines which rate of pay may be paid, not whether there is an entitlement. It is confined to the 12 months immediately before the starting date of the look back (the commencement date of the most recent sick leave). It is the first 12 months of a full 4-year look-back and reliance was placed on the text of Regulation 9.

It is further submitted that it is unfortunate that the Regulations feature Regulations 9 first where the first consideration of HR or the NSSO in applying the rules is actually the 4-year look-back which is provided for in Regulation 10. In other words, if the sick leave period is more than 183 days in the 4-year look-back (whatever the pay status of those 183 or more days), there is no access to full or half pay. Furthermore, it is stated that the reason this provision comes after Regulation 9, even if the practical procedure is to look at the 4-year look-back first, is because it follows on directly from (and must be read with) Regulation 9.

It was further contended that on page 35 of the DPER Report of 2016, it was found that the approach taken in the case of the Complainant was the universal approach in the Civil Service (“In … the Civil Service, sick leave at full and half pay, TRR and unpaid sick leave are all counted towards the limits.’). It was stated that the Report goes on to set out its final conclusions on the issues as follows (page 37, emphasis in bold):

“6.2.4Recommendation

 The recommended approach is … - count all sick leave towards thresholds. It is felt that this approach fully takes account of all sick leave availed of, irrespective of the rate at which it was paid. While TRR is counted by just under half of the Public Service, this is accounted for by the fact that the Education Sector extends the look back to take account of TRR rather than count it towards sick leave thresholds, based on the Regulations as currently drafted.

The operation of the look back is based on a dual process. Firstly the 4-year look back assesses the number of days of absence due to illness. If this is below 183 (6 months) in the case of an ordinary illness, the reminder may be availed of as paid sick leave (understood as sick leave at full pay or half pay), or if not it may be taken as TRR or unpaid sick leave. The 1 year look back assesses the number of days at full pay which has been availed of in the past year. An individual may avail of up to 92 days per year at full pay and 91 days at half pay, subject to the 4-year limit of 183 days. Sick days taken at TRR or nil pay are not included in the 1-year look back.”

Strictly without prejudice to the foregoing: limited justiciability and requirement of statute

Counsel on behalf of the Respondent made the following arguments regarding limited justiciability of the WRC. It was submitted that the WRC takes seisin of this case as an adjudication pursuant to the provisions, and in particular, s.41, of the Workplace Relations Act 2015 which refers to the Adjudication Officer dealing with ‘complaints’ and ‘disputes’. These two concepts are not clearly defined.

It was further submitted that the WRC also takes seisin of cases through the specific piece of legislation under which the complaint is made. Here it is the Payment of Wages Act 1991. Furthermore it was argued that where the Labour Court has recommended the acceptance of certain recommendations (effectively the entirety of the 2016 Report), and where Regulation 9 of the 2014 Regulations clearly provides for a permissive rather than mandatory access to paid sick leave (there is no mandatory language on the issue in the Regulations or the Principal Act), this  takes this complaint outside of what is justiciable by the WRC. It is the application of a practice that is now applicable at the direction of a Court and Policy Authority (DPER).

a.       It is submitted that this case is concerned with a practice, universally applied across the civil service, of calculating nil-pay for the purpose of Regulation 10. Where this has been the subject of conciliation and a Labour Court recommendation, the Respondent is not permitted to deviate from those legal norms and obligations. It is contended that the Complainant cannot, therefore, argue that it is open to the Respondent to do otherwise than apply its sick leave policies in the manner in which it has done, or

b.       that this is a justiciable issue before the WRC.

It is submitted that this case is concerned with a complaint against an unlawful deduction under section 5. Section 5(1) however provides that such a complaint cannot succeed where there is a statutory provision which requires the deduction (the deduction here being a failure to pay a sum which is claimed to be properly payable under s.5(6)).  In this regard reliance was placed on the provisions of section 5(1).

It is submitted regarding the limited justiciable period that it is claimed in the single complaint form that the Complainant should have received a payment of €1621.32 on 28 September 2021. The complaint was received by the WRC on 3 March 2022. It is therefore submitted that the WRC may only adjudicate on wage payments due in the period dating back 6 months from the date of receipt of the complaint: 4 September 2021 is therefore the cut-off date (s.41(6) Workplace Relations Act 2015 as amended).

It was further submitted that the WRC may not adjudicate upon any alleged contravention taking place after the claim has been received (QED v Mulholland AWD146) Therefore the period within which the WRC has jurisdiction to adjudicate a claim of unlawful deduction of wages is therefore from 4 September 2021 to 28 September 2021, a 3-week period.

In conclusion it is submitted that the Complainant has not established that the payment of wages (or any particular part thereof) to which she refers in her complaint was payable during that 3-week period.

In his oral submissions Counsel placed reliance on an email to the NSSO from the Civil Service HR Policy DPER dated 19/10/2021 exhibited in the Respondents’ booklet of correspondence which provides their interpretation of S.I. 124/2014. Counsel submitted that Regulation 10 should not be read in isolation but must be read in conjunction with Regulations 8 and 9.

Counsel submitted that he could not locate any decision on the WRC database of decisions which dealt with the issue in dispute in this case. He further stated that there were some Labour Court decisions on the area, but no case has dealt with this point.

Counsel stated that the main issue to consider was whether the maximum allowable sick leave period of 183 days in any four year rolling period included nil pay while on sick leave. He further stated that there are no cases determined by the WRC on this point.

Counsel referred to the Labour Court recommendation In LCR21812 Department of Public Expenditure and Reform v Public Sector Trade Unions and Associations and stated that the Court’s main focus in that case was to consider whether the TRR rate was included in the 183 days maximum allowable sick leave period. He submitted that the Court confirmed that the “look back” period should include periods of benefit under TRR.

Counsel provided an outline of the legislative background to the 2014 Regulations and stated that the 2014 regulations replaced Circular 7/1978 and further submitted that it was never intended by the government to provide a more generous scheme for paid sick leave than what was available pre the 2014 regulations. He stated that it was reduced by 50% by the 2014 regulations as the previous scheme was considered too generous. Counsel submitted that, therefore, the 2014 Regulations cannot be read to expand workers employees’ rights in a more generous manner in regard to the provision of paid sick leave.

Counsel further stated that if the Complainant’s argument is accepted that it makes a nonsense of the two different limitations periods provided for in Regulations 9 and 10.  Furthermore, if the Complainant’s argument is accepted and is correct it would mean that Regulation 10 would contradict Regulation 9.

Counsel referred to page 196 of the 2016 DPER report and in particular to page 169 of the report which sets out recommendation 10 which confirms that for the purposes of the 4 year look back period provided for in Regulation 10 which states;-

“Count All types of Sick Leave in the 4 Year Look Back. Standardise the look back by counting sick leave at full pay, half pay, TRR and unpaid sick leave towards the threshold of 183 days for the purpose of determining access to sick leave(at full and half pay).”

Counsel submitted that those recommendations from the DPER report that were outstanding were referred to the Labour Court.

Counsel submitted that the matter of sequencing in terms of which regulation whether 9 or 10 was read first, is very important and confirmed that Regulation 10 should be read first before considering Regulation 9. He further stated that this approach is endorsed by DPER who on page 199 set out their   recommendation, “ The recommended approach is Option B – count all sick leave towards thresholds. It is felt that this approach fully takes account of all sick leave availed of irrespective of the rate at which it was paid”.   Counsel placed reliance on the following excerpt, “The operation of the look back is based on a dual process. Firstly the 4 year look back assess the number of days of absence due to illness……..The 1 year look back assesses the number of days at full pay which have been availed of the past year.” (emphasis added).

Counsel further submitted that the first exercise is to assess how many days of sick leave irrespective of the rate of payment is to be counted in the four year look back period and then to assess the number of days at full pay that have been availed of within the 1 year look back period. Counsel submitted that this approach was reflected in the wording of the regulations where at Regulation 9(1)it provides for ;  “This Regulation is subject to Regulation 10.” ,  and by the reference to the following in Regulation 10 which states “Notwithstanding anything in Regulation 9,….”.

Counsel concluded by stating that that the Complainant has not established that the payment of wages (or any particular part thereof) to which she refers in her complaint was payable during the  3-week period which he claims is the cognisable period relevant to this complaint.

Evidence of Sinead Sweeney, Personnel Officer

Ms. Sweeney clarified a net point which arose during the testimony of the Complainant. Ms. Sweeny confirmed that the Complainant’s increment date had moved as her probationary period had been paused while she was on certified sick leave during 2020.

Relevant Legislation

Section 1 of the Payment of Wages Act 1991 (the Act) defines “wages” in the relevant part as:-

“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: Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.

Section 5 (1) of the Act prohibits employers from making deductions from the wages of employees or receiving any payment unless the deduction is permitted by statute, or is authorised by a term of the contract, or it is a deduction to which the employee has consented to in writing.

Section 5(1) provides in the relevant part that:-

(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.

Section 5(5) of the Act, however, provides that nothing in the preceding sections shall apply to the following:

(5) Nothing in this section applies to–

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of–

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

Section 5(5) in effect, provides that an employer may make a deduction from the wages of an employee where the purpose of the deduction is the repayment to the employer of the overpayment of wages to an employee without any regard to the restrictions set out in sections 5(1), (2), (3) and (4) of the Act.

Section 5(6) stipulates the following;-

(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.

Pursuant to the provisions of the Act, in the first instance I am required to ascertain what wages are properly payable. Having established that, I then need to consider whether there was a deduction in the proper payment and, if that was the case, whether the deduction arose for one of the reasons set out in section 5(1) above.

In Marek Balans v Tesco Ireland Limited [2020] 31 E.L.R 125 MacGrath J. considered the application of Section 5.  MacGrath J. determined that when considering whether a deduction from wages has been lawfully made, the concept of wages “properly payable” is central to the court's analysis and should be addressed before considering the question of a deduction or whether a deduction is unlawful, relying on the decision of Dunnes Stores (Cornelscourt) Limited v Lacey [2007] 1 I.R. 478. MacGrath J also considered the application of Section 5(6) of the Act and stated the following:-

“34. Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where 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, then, except insofar as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment should be treated as a deduction made by the employer from the wages of the employee on the occasion.

35. Central to the court's analysis must be the concept of wages “properly payable” and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an “error of computation”.

36. The provisions of s.5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the Employment Appeals Tribunal. It was argued that the Employment Appeals Tribunal should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p.482:

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as implicit in the determination of the Employment Appeals Tribunal a finding is that the appellant agreed to pay to the respondents service pay and a long service increment then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18 September 2002. In either case there has been an error of law. Accordingly I allow the appeal.”

37. This decision supports the proposition that the first matter which should be addressed by the Labour Court is to determine what wages are properly payable under the contract. “

One of the grounds of appeal advanced in the High Court in Balans concerned the Labour Court’s interpretation of the appellant’s employment contract regarding a premium payment. It was claimed that the Labour Court had misinterpreted the appellant's employment contract in this regard. The High Court rejected this ground of appeal on the basis that the Labour Court was entitled to come to its conclusion regarding the meaning of the phrase in the contract as there was adequate material before the Court to support that conclusion.

In this regard MacGrath J. stated the following at paragraph 45;-

“45.With regard to the second ground of appeal it seems to me that there was adequate material before the Labour Court to determine, as it did, that the phrase  “hours worked between Saturday and Sunday” did not mean that the premium was payable for hours worked between midnight on Friday/Saturday and 6 am on Saturday mornings. In my view, on analysis of the documentation before the court, it was entitled to come to this conclusion and no error of law has been identified.”

The Labour Court in a recent decision concerning the application of Section 5 (6) of the Act in Primark Ltd T/a Penneys v Romana Vancekova, PW /222/176 referring to the decision of McGrath J in Balans stated;-

“ In Balans v Tesco Ireland Limited [2020] 31 E.L.R. 125 MacGrath J. held that the first matter for the Labour Court to determine in assessing if a contravention of the Act occurred is to establish what wages are properly payable under the contract. Accordingly, the starting point for assessing what is properly payable is the Complainant’s contract of employment. “

Application of the law to the facts 

Limited Justiciability and Requirement of Statute

Counsel, on behalf of the Respondent, raised issues regarding the WRC’s jurisdiction to hear this complaint. It is submitted that where the Labour Court has recommended the acceptance of certain recommendations, and where Regulation 9 of the 2014 Regulations clearly provides for a permissive rather than mandatory access to paid sick leave (there is no mandatory language on the issue in the Regulations or the Principal Act), this takes this complaint outside of what is justiciable by the WRC. It is the application of a practice that is now applicable at the direction of a Court and Policy Authority (DPER).

Furthermore, it is submitted by the Respondent that this case is concerned with a practice, universally applied across the civil service, of calculating nil-pay for the purpose of Regulation 10. Accordingly, where this has been the subject of conciliation and a Labour Court recommendation, it is submitted that the Respondent is not permitted to deviate from those legal norms and obligations. It is therefore contended that the Complainant cannot, argue that:-

a.       that it is open to the Respondent to do otherwise than apply its sick leave policies in the manner in which it has done, or

b. that this is a justiciable issue before the WRC.

The Respondent grounds their argument on the fact that the Labour Court has made a recommendation In LCR21812 Department of Public Expenditure and Reform v Public Sector Trade Unions and Associations regarding the Courts recommendations in respect of the various aspects of the 2016 DPER report.

It is noted the Labour Court in the above cited decision, made various recommendations pursuant to Section 26(1) of the Industrial Relations Act 1990, and under the terms of the Public Services Stability Agreement.

Section 41(1) of the Workplace Relations Act 2015 provides in the relevant part that: 

(1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.”

Part 1 of Schedule 5 of the above Act confers jurisdiction on an Adjudication Officer to hear complaints under Section 5 of the Payment of Wages Act 1991.  Consequently, I find that I do have jurisdiction to hear this complaint under the provisions of the Payment of Wages Act 1991 as derived from Section 41 of the Workplace Relations Act 2015.

In light of the fact that the Labour Court made a recommendation under Section 26(1) of the Industrial Relations Act 1990, concerning a public services collective agreement I find that this does not affect my jurisdiction to inquire into this complaint under the Payment of Wages Act 1991.  While cognisant of the recommendations of a higher court such as the Labour Court in the above cited case, I find that this does not preclude me from hearing this complaint under the  Payment of Wages Act 1991.

In regard to the submission of the Respondent in respect of the language used in Regulation 9 of the 2014 Regulations which, it is submitted, is permissive in nature rather than mandatory that this takes this complaint outside of what is justiciable by the WRC.

In accordance with Section 41(1) of the Workplace Relations Act 2015 my jurisdiction to inquire into a complaint is confined to those statutes provided for in the 2015 Act which does not include the Public Service Management (Sick Leave) Regulations 2014 (S.I. 124 of 2014). However, the focus of my inquiry in this complaint, as per the provisions of the 1991 Act, is to firstly determine in accordance with Section 5(6) what wages are “properly payable” which may require me to consider whether any deductions as alleged which arose as a result of the application of the various regulations set out in S.I 124 of 2014 are in accordance with those provisions. Accordingly, I find that this matter is justiciable pursuant to the provisions of Workplace Relations Act 2015 as amended, and the 1991 Act.

Cognisable Period

It is submitted on behalf of the Respondent that the WRC may not adjudicate upon any alleged contravention taking place after the claim has been received and reliance was placed on the decision QED v Mulholland AWD146. It was further submitted that the period within which the WRC has jurisdiction to adjudicate a claim of unlawful deduction of wages is therefore from 4 September 2021 to 28 September 2021, a 3-week period.

Section 41 (6) of the Workplace Relations Act 2015 provides in the relevant part:-

(6)  Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to        him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41 (6) of the Workplace Relations Act 2015 as amended provides that Adjudication Officer can hear a complaint if it is submitted to the WRC within 6 months from the date of the contravention to which the complaint relates unless an extension of time is sought subject to the provisions of Section 41 (8).

This period dating back 6 months from the date of receipt of the complaint form by the WRC is the relevant period for the purposes of adjudicating on complaints regarding alleged breaches of the Act.

The complaint form was received by the WRC on the 03/03/2022, accordingly, I find that the cognisable period for this complaint is from the 4/09/2021 to the 3/03/2022.

What wages are properly payable?

In determining whether the Complainant has been the subject of unlawful deductions by the Respondent contrary to the provisions of the Act, I must in the first instance ascertain, applying the rationale of MacGrath J. in Balans, what wages were properly payable within the cognisable period and then consider the question of a deduction within the cognisable period or whether a deduction is unlawful.

I have determined that the cognisable period for this complaint is from the 4/09/2021 to the 3/03/2022. Given the lack of clarity from the Complainant regarding the amount and dates of any alleged deductions and the changing nature of her evidence on this point it is my view that I am required to clarify this matter in the first instance to determine whether the alleged deductions relied upon are within the cognisable period.

The Respondent submits that the Complainant has not established that the payment of wages (or any particular part thereof) to which she refers in her complaint or at the hearing was payable during the period of 4/9/2021 to 28/9/2021 which the Respondent claims is the cognisable period.

The Complainant has provided various dates and values regarding certain alleged unlawful deductions which are firstly set out in the complaint form, then altered during the hearing and confirmed in a post hearing submission.

Firstly, the Complainant stated in the complaint form that she should have received a payment of €1621.32 on the 28/9/2021. At the hearing the Complainant confirmed on two occasions that she was no longer relying on this figure or date of the alleged deduction and stated she wasn’t sure how she arrived at the figure.

At the hearing, mindful that the Complainant was unrepresented, I outlined that my jurisdiction to inquire into alleged deductions is determined by Section 41(6) of the Workplace Relations Act 2015, accordingly I am confined to consider any alleged deductions under the Act to a period of 6 months preceding the lodging of the claim form on the 3/03/2022.

At the closing of the hearing the Complainant confirmed that she was no longer relying on the figure in the form and that her loss was limited to the amount of the overpayment set out in the letter of the 12/5/2022 of €917.73. The Complainant confirmed that her salary was reduced weekly by €45.00 from the 3/6/22. She also stated that she did receive a refund from the monies she had paid back.

At the hearing I provided the Complainant with a two week period post hearing to allow her the opportunity to finalise the value and dates of any alleged deductions with a further two weeks to the Respondent to reply. The Complainant submitted a further submission dated 30/1/2023. The Respondent confirmed by letter that they were relying on their previous written and oral submissions.

In the Complainant’s submission dated 30/1/2023 she states “As was ascertained and agreed by all parties I received some pay after the 28/09/21 (start date of sick leave) but I was advised on a letter by the HR advisor of NSSO that I was on NIL pay from the 28/09/21. Therefore the recoupments team contacted me on the 12/05/22 to collect what they deemed to be overpayments I had received in 2021 ( you will note how long it took to get an actual figure).”

The Complainant confirmed in her submission that she was claiming the value of the overpayment as stated on the letter of 12/05/22 of €917.73 gross, by stating “The value of the overpayment as written on that letter of the 12/05/22 is €917.73 gross amount (case number 2078756). Also, the increment that I was owed from the 09/10/22 was not started until 05/11/22 so that is €39.34 gross x4 weeks = €157.36 gross. Total = €1075.09”.

The Complainant in her submission confirmed what she had stated at the conclusion of the hearing that the unlawful deduction was made up of the value of the overpayment of €917.73 which overpayments commenced in June 2022 and the value of the loss of a month’s increment of €157.36. 

The essence of the Complainant’s case is that during the period 23/9/2021 to 30/10/2021 she should have received her full wages due for that period as she was entitled to paid sick leave for this period on the basis that she had not reached the allowable threshold of 183 days of paid sick leave. This argument is based on the Complainant’s interpretation of the phrase “paid sick leave” as set out in Regulation 10 of the 2014 Regulations, which in her view only refers to sick leave paid at either the full or half rate and not at a TRR rate or nil pay as contended for by Counsel for the Respondent.

According to the Complainant’s submission, as the majority of her sick leave during her first period from late 2019 to October 2020 was unpaid, in her view, she had not used up her allowable maximum threshold of 183 days sick leave and should have received payment for her 2nd period of sick leave which started on 23/09/2021. Therefore, the Complainant submits that she should not have been levied with an overpayment as was set out in the letter of the NSSO dated 12/5/2022, commenced in June 2022, and her pay should not have been reduced to a TRR rate.

Accordingly, though not expressly stated by the Complainant, she is relying on  Section 5(6) of the Act, which provides that where 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/her  to the employee, then, except insofar as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment should be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Complainant at the hearing and in her post hearing submission stated that it was agreed by all parties that she received some pay after 28/09/21 which was the TRR rate of pay. No evidence was put before me by the Complainant to clarify how much her wages were reduced as a result of being placed on the TRR rate and exactly when this occurred. 

The Complainant confirmed at the hearing and in her post hearing submission that the value of the alleged unlawful deduction was €917.73 gross, as stated in the letter of the NSSO on behalf of the Respondent dated 12/05/22. The Complainant further confirmed at the hearing that her salary was reduced on a weekly basis by €45.00 from the 3/6/22. She also stated that she did receive a refund of the monies she had paid back. I accept the Complainant’s evidence that her salary was reduced by €45 on a weekly basis from the 3/6/22, and her evidence that she received a refund of the monies she had paid back.

In light of my finding that the cognisable period for this complaint is from the 4/09/2021 to the 3/03/2022, I find that the unlawful deductions of €917.73 (total amount) relied upon by the Complainant which commenced in June 2022 by way of weekly deductions of €45, three months after the complaint form was received by the WRC,  are outside of the cognisable period of this complaint, therefore I am satisfied that I do not have jurisdiction to consider these deductions under the provisions of the Act.

Loss of value of increment

The Complainant is also claiming for the value of the loss of her increment for one month which she claims was due to her on 09/10/21 and was pushed out to the 05/11/21 which represents a loss/deduction of €157.36 gross, as set out in her submission of the 30/1/23.   

The Complainant submits in her submission dated 8/01/2022 that as a result of the decision  to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        place her on a TRR rate of pay for the period 23/9/2021 until 22/10/2021 that she has been impacted in the following ways:-

“My yearly salary increment date has been affected by the TRR payments.  It was pushed out by approximately a month (approx. €40.00 difference gross weekly). I was not aware of this before I questioned the date of increment in 2021. (see emails on page 20 and 21).”

By way of email dated 30/11/2021 the Complainant wrote to the NSSO querying her increment date and stated “I found out just in the last few days that the date of my next increment was moved out owing to the TRR and of course I am checking this further”. The NSSO pay team replied dated 8/12/2021 “When you are placed on TRR your next increment date gets pushed out by the number of days you are placed on TRR. Your increment to Step 5 was originally due on 09/10/2021 …..With your next increment to step 5 awarded from 05/11/2021.”

The Complainant confirmed in her submission dated 30/1/2023 that she was also claiming for the loss of her increment when she stated “Also the increment that I was owed from the 09/10/22 was not started until 05/11/22 so that is €39.34 gross x4 weeks = €157.36 gross.” I note that the dates referred to in her submission are 9/10/22 and 5/11/22 and I assume that due to a typographical error the Complainant intended to state the dates as set out in her submission as above of 9/10/21 to 5/11/2021 and referred to at the hearing.

On the basis that the Complainant is claiming that she should have been paid her increment on the 9/10/2021 but was pushed out by a month to the 5/11/21 this represents a deduction to her in her wages of €157.36 contrary to the provision of Section 5(6)(a) which does fall within the cognisable period. Applying the rationale of McGrath J. as set out in Balans when considering whether a deduction from wages has been lawfully made, the first matter that I must determine is to ascertain whether the increment which the complainant states was due to her on 9/10/21 forms part of the wages “properly payable” to the Complainant. 

Relying on the decision of Dunnes Stores (Cornelscourt) Limited v Lacey [2007] 1 I.R. 478, MacGrath J also considered the application of Section 5(6) of the Act and quoted from Finnegan J in the above who had held that in order to make a finding of what wages are “properly payable” this finding must be based on evidence.  

It is my view that the onus to establish what is properly payable rests with the Complainant and further to the decision of the High Court in Balans any submissions should be supported by reliable evidence. The Labour Court in the decision of Primark Ltd T/a Penneys v Romana Vancekova, PW /222/176 confirmed that the starting point in assessing what is properly payable is the Complainant’s contract of employment.

As part of my inquiry into this complaint I sought a copy of the contract of employment from the Respondent post hearing. The Respondent furnished a copy of the Complainant’s probationary contract to the position of Clerical Officer with the Respondent with effect from the 11/03/2019. The Contract at clause 2 provides the salary scale for the position and further states,

“Progression through the scale is dependent on an officer performing satisfactorily in the grade.”

No evidence was put before me by the Complainant based on the contract of employment or any other evidence to support her assertion that she was entitled to an increment on the specific date of 9/10/2021. Accordingly, applying the rationale of the High Court in Balans, as set out by MacGrath J, I find that, as no evidence was put before me to support a finding that the Complainant was entitled to an increment on the 9/10/2021, I am satisfied that the amount of €157.36 does not come within the definition of wages “properly payable” as provided for in Section 5(6). Therefore, I find that the deduction of €157.36 as claimed by the Complainant does not constitute an unlawful deduction for the purposes of the Section 5 (1) of the Act.

The Complainant also claimed in her submission that as a result of the decision  to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        place her on a TRR rate of pay for the period 23/9/2021 until 22/10/2021 that she has been impacted in various ways, including that her pension is now  affected as a result of being “paused” for work or placed on nil pay. I find that, in light of the definition of “wages” as provided for at Section 1 of the Act which specifically excludes the consideration of any pension payments, that I do not have jurisdiction to consider this aspect of the claim.

For the reasons set out above I declare this complaint under the Payment of Wages Act 1991 to be not well founded.

-          wages properly payable – unlawful deductions- paid sick leave-  sick leave regulations 2014 S.I 124 of 2014