PWD2355

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045401 (CA-00056164-001).

BACKGROUND:

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 15 December 2023 in accordance with Section 44 of the Workplace Relations Act, 2015.  The following is the Court's Decision.

DECISION:

This matter comes before the Court as an appeal by Cathal Noonan (the Appellant) of a decision of an Adjudication Officer given under the Payment of Wages Act, 1991 (the Act) in his complaint against his employer An Garda Síochána (the Respondent).

The Appellant has been suspended from duty on full pay since December 2022. He claims that a failure to pay him a ‘public holiday allowance’ on 31st October 2022 amounted to a deduction from pay.

The complaint before the Court is founded on the Appellant’s proposition that a ‘public holiday allowance’ was properly payable to him on each occasion where such an allowance was payable to Gardai rostered to work on or close to the date of a public holiday during the period of his paid suspension. ‘Public holiday allowance’ is paid to Gardai when rostered to work on or close to the date upon which public holidays fall according to established and specified arrangements for the payment of the allowance in the employment.

It is unclear to the Court how the within complaint, which relates to an alleged unlawful deduction on a date which preceded the commencement of the Appellant’s period of suspension, could be founded on this ratio. Neither party addressed this matter in written or oral submissions to the Court.

Summary submission of the Appellant

The Appellant submitted that the Garda Síochána policy on the suspension from duty of members (the Suspension Policy) does not explicitly address the treatment of public holidays. The policy effectively rosters suspended members on duty from 9.00am to 5.00pm each Monday to Friday inclusive while suspended from duty.

It is reasonable therefore to conclude that the Appellant has been denied the public holiday payment on 31st October 2022 while suspended as per the Suspension Policy. That payment amounted to a total sum of €221.54 on the day.

The policy’s restriction on additional activities during the designated working hours, in conjunction with the absence of explicit mention in the Suspension Policy regarding public holiday treatment, forms a compelling basis for the Appellant’s claim.

Summary submission of the Respondent

The Respondent submitted that no breach of the Act had taken place on the occasion and that the worker was in receipt of the entirety of wages properly payable to him on 31st October 2022.

He has been suspended on full pay since December 2022. He is treated in exactly the same manner as an employee who works from 9.00am to 5.00pm from Monday to Friday. He receives 100% of his basic pay as provided for in the Suspension Policy.

He did not carry out any work on 31st October 2022 and, as such, no public holiday payment accrued to him on that occasion.

Accordingly, there is no basis for any complaint under the Act on the occasion.

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.

Section 5(6) of the Act provides:

(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.

Discussion and conclusions

The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55, made 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 had been made. If it is established that a deduction within the meaning of the Act had been made from the wages properly payable on the occasion, the Court would then consider whether that deduction was lawful.

It was common case before the Court that the suspension of the worker and applicable terms of employment during that period of suspension were governed by Clause 10 of the Suspension Policy [Titled “An Garda Síochána – Policy Document on the suspension from duty of members of An Garda Síochána under the Garda Síochána (Discipline) Regulations 2007 as amended”] of the employer.

That Clause, in relevant part, provides as follows:

Suspension Allowance

Allowance:

During the suspended member’s period of suspension from duty he/she will be paid a suspension allowance in lieu of pay ….

Members who qualify for a suspension allowance will be paid an allowance equivalent to 100% of basic pay, including rent allowance.

Other allowances

The member will not receive payment in respect of any other allowance for the period of suspension.

On the date in issue before the Court, which predated any period of suspension of the worker, this worker, according to the parties, carried out no duties, was not at his place or work or otherwise carrying out activities on behalf of the employer. It is not in dispute between the parties that, on the occasion, he was paid wages in accordance with the provisions of Clause 10 of the Suspension policy.

He was, as provided for by that policy, paid a Suspension Allowance equivalent to 100% of basic pay on the date as a result of his suspension from duty. As earlier set out, the Court has been given no understanding how this could have been the case on 31st October 2022 but that has been the submission of both parties.

It is indisputable that the Suspension Policy, which governed the suspension of the worker and the terms applicable to him while suspended, explicitly states that, while suspended, the worker was entitled to receive a suspension allowance equivalent to 100% of basic pay but would not receive payment in respect of any other allowance for the period of suspension.

In the view of the Court, having regard to all the circumstances and in particular the provisions of the Suspension Policy, the worker was in receipt of the wages which were properly payable to him on the occasion.

On that basis the Court must conclude that no deduction within the meaning of the Act was made on the occasion and the within appeal must fail.

Decision

The Court decides, for the reasons set out above, that the Complaint before the Court is not well founded. The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
SOC	______________________
8 January 2024	Chairman