ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045401

Parties:

	Complainant	Respondent
Anonymised Parties	Employee	Employer

Representatives

Mr. Ciaran O'Neill, Garda Representative Association

Ms. Aideen O’Brien, Chief State Solicitor’s Office, instructing Mr. Desmond Ryan B.L..

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056164-001	19/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056164-002	19/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056164-003	19/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056164-004	19/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056164-005	19/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056164-006	19/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056164-007	19/04/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056164-008	19/04/2023

Date of Adjudication Hearing: 12/10/2023

Workplace Relations Commission Adjudication Officer: Elizabeth Spelman

Procedure:

In accordance with section 41 of the Workplace Relations Act 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the Parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

The matter was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the Workplace Relations Commission (the “WRC”) as a body empowered to hold remote hearings.

The Employee (the “Complainant”) attended the Hearing. The Complainant was represented by Mr. Ciaran O’Neill of the Garda Representative Association (the “GRA”). Four other GRA Representatives were also in attendance.

The Employer (the “Respondent”) was represented by Ms. Aideen O’Brien of the Chief State Solicitor’s Office, instructing Mr. Desmond Ryan B.L.. The Respondent had two witnesses in attendance – R1 and R2. The Respondent also had two employees in attendance for the purpose of providing instructions.

The Complainant provided evidence on oath; R1 provided evidence on affirmation; and R2 provided evidence on oath. Cross-examination was allowed. The legal perils of committing perjury were explained.

At the outset of the Hearing, I explained that pursuant to the Supreme Court case of Zalewski v. Adjudication Officer & Ors [2021] IESC 24, all WRC hearings are held in public. I explained that where “special circumstances” apply, a matter could be heard in private and decisions could be anonymised. Both Parties made submissions and outlined that there is a background to these complaints which touches on parallel criminal proceedings. It was submitted that this background constituted a” special circumstance”, warranting the hearing of this matter in private and the anonymisation of the Parties and the witnesses in the decision. In the circumstances, I ruled that this matter be heard in private and that the decision be anonymised.

After the Hearing, the Respondent provided sections 11.2 and 11.19 of the Respondent’s Code, as agreed during the Hearing. This document was provided to the Complainant.

Background:

In December 2022, the Complainant was suspended on full pay, for a period of three months. This suspension has been continuously extended and is due to expire on 1 November 2023. The Complainant submits that under the terms of his paid suspension, he has been “rostered and effectively working” on the following public holidays: 31 October 2022; 26 December 2022; 27 December 2022; 2 January 2023; 6 February 2023; 17 March 2023; 7 April 2023; and 10 April 2023. The Complainant is seeking pay for these public holidays, amounting to €1,772.32. The Complainant submitted his Complaint Form on 19 April 2023. In response, the Respondent submits that there is no basis in fact or in law to the complaints under the Payment of Wages Act 1991, as amended.

Summary of Complainant’s Case:

The Complainant provided written and oral submissions.

The Complainant has worked for the Respondent since November 2000. He earns €1,108 gross per week for a 40-hour working week. The Complainant outlined that since December 2022, he has been suspended on full pay. The Complainant outlined that under the terms of the suspension, he is unable to take up any other activity as he is employed from 9am to 5pm from Monday to Friday. The Complainant outlined that he could be recalled to work at any time during his suspension.

The Complainant outlined that there is an additional premium paid to his colleagues who are rostered to work on public holidays. The Complainant submits that pursuant to the terms of his paid suspension, he is also effectively rostered to work during public holidays and as such, is entitled to additional pay for working on public holidays.

In his evidence, the Complainant outlined that he was suspended pursuant to the Respondent’s Suspension Policy. The Complainant stated that he did not get instruction or advice on the payment of allowances.

Under cross-examination, the Complainant stated that the suspension process was alien to him, prior to his own suspension.

Summary of Respondent’s Case:

The Respondent provided written and oral submissions. The Respondent submitted that there is no basis in fact or in law to the complaints under the Payment of Wages Act 1991, as amended.

R1 – Evidence:

R1 outlined that the Respondent’s employees are not specifically covered by the Organisation of Working Time 1997, as amended. However, she stated that public holidays are taken into account in the employees’ annual leave entitlement. R1 outlined that the annual leave entitlement is 35 days which encompasses: 20 holidays; 11 public holidays; and 4 extra days. R1 outlined that the annual leave entitlement was recently increased by one day from 34 days to 35 days to account for the St. Bridget’s Day public holiday. R1 explained that this annual leave entitlement compensates the Respondent’s employees for public holidays.

R1 outlined that employees who work from 9am to 5pm from Monday to Friday are in receipt of the 35-day annual leave entitlement. R1 outlined that employees who are suspended on full pay, receive 100% of their basic pay as well as the same the same 35-day annual leave entitlement.

Under cross-examination, R1 confirmed that if an employee was suspended on full pay for six months, they would be treated in the same way as if they were an employee working 9am to 5pm from Monday to Friday for those six months.

R1 stated that annual leave can be taken subject to approval and can be availed of at any point.

R2 – Evidence:

R2 outlined that a suspension is not punitive. R2 outlined that when an employee is placed on a precautionary suspension, as in the Complainant’s situation, they are treated as if they are rostered to work from 9am to 5pm, Monday to Friday. They receive an annual leave entitlement of 35 days, which is the same as all employees.

R2 outlined that it is very rare for someone on paid suspension, to be called into work.

R2 outlined that a suspended employee has a liaison person who: meets with them and provides them with all relevant documents and notices of appointments; arranges their visits to the Respondent’s premises if necessary; and deals with annual leave matters. R2 outlined that a suspended employee has to apply for annual leave via the liaison person.

R2 outlined that the Respondent’s Suspension Policy is a recognised document throughout the Respondent’s organisation and that it is a key document for anyone who is suspended. R2 outlined that the Respondent’s Suspension Policy has gone through various iterations. R2 outlined that a suspended employee receives 100% of their basic pay and 35 days of annual leave.

Findings and Conclusions:

The Law:

The Payment of Wages Act 1991 as amended (the “PWA”) regulates deductions to an employee’s wages and prohibits unlawful deductions.

Under the PWA, “wages” are defined as:

"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,

(vi) any payment by way of tips or gratuities.”

Section 5 of the PWA deals with the regulation of certain deductions made by employers.

Section 5(6)(b) of the PWA states that failure to pay amounts due on the occasion when due “…shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 6 of the PWA outlines the directions which an adjudication officer can make, where a complaint is wholly or partly well founded.

Findings and Conclusion:

The Complainant has been suspended on full pay since December 2022. The Complainant is treated in the same way as an employee who works from 9am to 5pm, from Monday to Friday. The Complainant receives 100% of his basic pay and is in receipt of the same annual leave entitlement of 35 days, which accounts for public holidays. The Complainant did not carry out any work on any of the eight public holidays for which he is seeking additional pay. As such, no wages accrued to him during those eight days. I am therefore satisfied that the Complainant has not established any entitlement for wages for the days claimed.

I find that the complaints made pursuant to the PWA are not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00056164-001: Complaint under the Payment of Wages Act 1991: