PWD2325

1.Appeal Of Adjudication Officer Decision No(S)ADJ-00036988 CA-00048309-001

BACKGROUND:

2.This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 12 October 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-

DETERMINATION:

This matter comes before the Court as an appeal by the Department of Justice (the Appellant) against a decision of an Adjudication Officer in complaint made by Martin Switzer (the Complainant) under the Payment of Wages Act, 1991.

The Adjudication Officer decided that the complaint was well founded and awarded the sum of €33,346.91 in compensation to the Complainant.

Background

The Complainant was employed by the Appellant engaged in a finance area until his transfer to the Appellant’s Immigration Border Management Unit (BMU) in May 2018. He remained in that unit until a date in or around 31^stMay 2020.

The Complainant at the hearing confirmed that his complaint was not that a deduction or deductions had been made from wages on any date or dates during his period as an officer of the BMU unit of the Appellant. The complaint was that an unlawful deduction had been made from a payment made to him on a date in November 2021.

The Complainant was an officer of the BMU unit of the Appellant from May 2018 to May 2020.

The within complaint was received by the Workplace Relations Commission on 20^thJanuary 2022.

The Law

The Act at Section 5(1) provides as follows:

• 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.

(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.
  
  

The Complainant was an Assistant Principal Officer in the employment of the Appellant and in early 2018 was asked if he had an interest in transferring to a role in the BMU. He spoke to the head of the BMU, WO’D, and subsequently accepted the role and transferred to that unit on 7^thMay 2018.

The Complainant submitted that prior to his transfer to the role in the BMU he had a legitimate expectation that he would receive an allowance of €18,023 per annum in return for taking up that role. He said that a manager, WO’D, had told him in advance of taking up the position that he would receive an on-call / out of hours allowance of €18,023 per annum. He submitted that such an allowance had not been paid before in the BMU but that he was told ‘they are waiting for you to come in’.

He submitted that he was informed that the business case for the allowance was submitted to Human Resources Division (HRD) on 1^stFebruary 2018. In the weeks and months following his transfer on 7^thMay 2018 he was assured by WO’D that he would get the allowance. He was never informed that sanction would be required from the Department of Public Expenditure and Reform (DPER) for payment of the allowance.

Ultimately, a business case was submitted to DPER on 1^stOctober 2019 by HRD and a copy was not provided to him. Several e-mails were exchanged in the period May 2018 to May 2020 between the Complainant and WO’D, MK and HRD in relation to the allowance.

DPER sanctioned a reduced allowance on 10^thMarch 2020, but the Complainant was not notified of that development until 24^thNovember 2021.

Ultimately, the Complainant received a letter from HRD on 24^thNovember 2021 stating that an allowance had been approved and came into effect from January 2020. That letter stated that the head of HRD had become aware that payment of the sanctioned allowance had not been made to the Complainant. The head of HRD undertook to make payment of the outstanding amount of the sanctioned allowance to the Complainant in the amount of €1,197.50.

The Complainant submitted that his complaint was that the wages properly payable to him in November 2021 was an amount calculated by reference to his legitimate expectation that he would be paid an allowance of €18,023 per annum whereas the wages actually paid him on the occasion was amount calculated by reference to the allowance sanctioned for payment by DPER.

Summary submission of the Appellant

The Appellant submitted that no breach of the Act had taken place in November 2021 or at all. In March 2020 the Appellant received sanction from DPER for payment of an allowance in the amount of €2,874 per annum on certain conditions. Following receipt of that sanction the Appellant wrote to DPER stating that it was of the view that the amount sanctioned was not appropriate and requesting a review. A review was undertaken by DPER and on 17^thJune 2020 DPER confirmed to the Appellant that the sum originally sanctioned would not be increased.

In November 2021 the Appellant wrote to the Complainant to advise him that it had come to light that he, the Complainant, had not received the sanctioned payment and that it would now be paid to him. Accordingly, a payment was made to the Complainant equal to the amount of allowance payable to him between the sanctioned date of implementation of the allowance and the departure of the Complainant from the BMU on 8^thJune 2020.

The Appellant submitted that it was well known and understood that no allowance could be initiated in respect of the position in BMU by the Appellant without sanction from DPER. The Appellant drew the Court’s attention to a number of e-mails over the period from 2018 wherein the Complainant commented upon, and urged WO’D to urge HRD to decide upon, the business case which had been made by WO’D for payment of an allowance. It was also submitted that the Appellant was well aware that sanction was required from DPER before any conclusion could be reached on whether an allowance could be applied to the post in BMU and, if so, what that allowance would amount to. It was submitted that the Complainant was at all times aware that no allowance could be paid to him in advance of receipt of a sanction to do so from DPER.

In those circumstances the Appellant submitted that the Complainant had no basis for his contention that an allowance of €18,023 per annum was payable to him for the two years he worked in BMU or that he was entitled to an allowance at that or any other level at all. The Complainant was never contractually entitled to the sum he claims nor was any person that would have been in his position at his grade have been so entitled.

The Appellant submitted that, in effect, the Complainant is seeking to have the amount of a new allowance determined in his complaint under the Act. The allowance, or any allowance, had never been paid to an employee in the role in the BMU by the Appellant previously and any decision of the Court to pay such an allowance in the amount claimed to the Complainant would be beyond any provision of the Act.

The Appellant submitted that at no time prior to the receipt of a sanction for payment of an allowance was WO’D, the Appellant or any of its agents in a position to enter into an agreement or contract with the Complainant to pay him an allowance of €18,023 per annum, or at all, in respect of his assignment to a role in the BMU which had never attracted an allowance previously.

Discussion and conclusions

The High Court inMarek Balans v Tesco Ireland Limited [2020] IEHC 55made clear that this Court, when considering a complaint under the Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction within the meaning of the Act had been made. If it is established that a deduction within the meaning of the Act had been made, the Court would then consider whether that deduction was lawful.

The matter before the Court relates to an alleged deduction made from wages properly payable to the Complainant in November 2021. The Complainant was paid €1,197.50 on the occasion.

There is no dispute that this amount reflects an accurate calculation of the amount of wages which would be payable to him in the period between the date of implementation of the allowance sanctioned by DPER in March 2020 and the date of the Complainant’s departure from the post in the BMU if the DPER sanctioned amount is the basis for the calculation of wages.

The Complainant contends however that the calculation should have been made on the basis of an allowance quantum of €18,023 per annum. It is common case that this was the amount specified in a business case made by WO’D to HRD on 1^stFebruary 2018. It is clear from uncontroverted e-mail correspondence submitted by the Appellant that the Complainant was aware that a decision would be required on the business case made before an allowance could be brought into being. There is no dispute either between the parties that, ultimately, an application was made to DPER by the Appellant for sanction for payment of an allowance. That application highlighted a level of €14,000 approximately as a potential quantum of allowance.

The Complainant confirmed to the Court at its hearing that he was aware at the time, and certainly before a sanction was ultimately given by DPER, that this application had been made to DPER.

The Complainant seeks to have the Court accept that he had a legitimate expectation that a payment based on an allowance of €18,023 per annum would be paid to him on the occasion. He confirmed however at the hearing that it was not his understanding that all requests for sanction submitted to DPER were automatically conceded by that Department.

In these circumstances the Court cannot conclude that the Complainant could, against the background of (a) his knowledge from 2018 that the matter of an allowance was initially subject to a decision by HRD on the business case made in that year by WO’D and (b) his knowledge in 2020 that an application was in train to DPER from the Appellant, could reasonably have expected that any undertaking was in place to pay an allowance of €18,023 per annum to him for the period of his occupancy of the role in BMU or that a payment subsequently paid to him would be made on any basis other than the basis of a sanction from DPER.

The Complainant submitted that he had held conversations with WO’D prior to his taking up a role in the BMU and that these conversations had involved an undertaking by the Appellant to pay an allowance to him in the amount of €18,023. The assertions by the Complainant in this regard were rejected by the Appellant including on the basis that WO’D knew at all times that he was not in a position to give an undertaking to introduce an allowance or to specify the amount of any such new allowance.

Whereas the content of discussions between the Complainant and WO’D in 2018 were disputed before the Court as a matter of fact, neither party proffered evidence to assist the Court in establishing those facts on the balance of probabilities. When invited to tender testimony on any matter at the hearing of the Court, both parties declined to do so.

In those circumstances the Court concludes, on the history of the matter outlined by the parties in oral and written submissions, that the Complainant has not established that he had a legitimate rational expectation insofar as that might be relevant to a complaint under the Act, or any contractual or other entitlement to an allowance in any specified amount during the period of his occupancy of a role in the BMU.

The Court concludes that the wages paid to the Complainant on the occasion of the alleged deduction were in fact, within the meaning of the Act, the wages which were properly payable to him on that occasion. In those circumstances, the Court must conclude that no deduction within the meaning of the Act took place on that occasion and that the within appeal must succeed.

Decision

For the reasons set out above the decision of the Adjudication officer is set aside and the within appeal succeeds.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
31 October 2023	Chairman