Complainant

Respondent

Anonymised Parties

Security Personnel

Security Force

Representatives

Mr. Conor Staunton, Industrial Relations Officer

Ms. MP Guinness BL, instructed by the Chief State Solicitor’s Office

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-00046909-001

31/10/2021

The Complainant commenced employment with the Respondent on 10th May 2021. The Complainant was a permanent, full-time member of staff, in receipt of an average weekly payment of €1,253.00. While the Complainant was in employment on the date of referral of the complaint, he retired two days later, on 2nd November 2021.

On 31st October 2021, the Complainant referred the present complaint to the Commission. Herein, he alleged that his employer made numerous illegal deductions from his wages. In particular, the Complainant submitted that the Respondent failed to pay various premia, allowances and overtime wages whilst he was placed on administrative leave. In denying this allegation, the Respondent submitted that the Complainant had been paid in accordance with the relevant Statutory Instrument governing such matters, and that no payments were outstanding to the Complainant.

A hearing in relation to this matter was convened for, and finalised on, 15th December 2023. This hearing conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side in the course of the hearing.

At the outset of the proceedings, the Adjudicator raised the issue of the relevant time-limits under the impleaded Act. In addition to the same, a further jurisdictional point was raised regarding the issue of outstanding annual leave. Given the nature of these issues, they will be considered following a review of the substantive matter.

In circumstances whereby the decision below will reference alternative, unproven allegations I have exercised my discretion to anonmise the decision in its published form.

By submission, the Complainant alleged that he was placed on administrative leave in late 2015. The Complainant submitted that this leave was of an extraordinary duration, lasting for approximately six years. The Complainant submitted that the Respondent failed to pay various premia throughout this period that would ordinarily accrue during normal working time. In particular, the Complainant submitted that the Respondent failed to pay overtime and various allowances related to unsocial hours that the Complainant had accrued during his standard duties. As a consequence of the same, the Complainant had suffered a deduction of approximately €15,000 per year, for each year of his suspension. As the same represented an illegal deduction for the purposes of the impleaded Act, he submitted that an award should be made in respect of the same.

In addition of the foregoing, the Complainant submitted that throughout his administrative leave, he did not take any annual leave. In such circumstances, the Complainant submitted that the combined total of untaken annual leave came to 200 days, to the value of €37,800.

In answer to a question posed by the Adjudicator, the Complainant accepted that the subject matter of the present complaint relates to a breach that occurred up to six years prior to the referral of the same to the Commission. Notwithstanding the same, the Complainant submitted that he understood the same would be paid following his return to normal duties, or the completion of the administrative leave. When the same was not paid, the Complainant referred the present complaint. In addition to the foregoing, the Complainant, via his representative, submitted that the illegal deduction was due and owing during the cognisable period for the purposes of the present Act, and as a consequence of the same, the complaint was in time for the purposes of the present Act.

In answer to a further question posed by the Adjudicator, the Complainant accepted that his employment had not terminated by the date of referral of the present complaint and the Complainant was on annual leave during that time. Notwithstanding the foregoing, the Complainant submitted that he retired shortly thereafter, at which point all outstanding annual leave fell due.

In denying the Complainant’s allegations, the Respondent submitted that the Complainant’s salary had been full discharged during his period of annual leave, and that no illegal deductions occurred in this instance. In this regard, the Respondent referred to Statutory Instrument 214/2007, and in turn the Respondents Regulations 2007.  Paragraph 10 of the Respondents (Discipline) Regulations permits the payment of certain payments while a member is on suspension, these payments are referred to as “Suspension Allowance”, with certain premia and payments included. In this regard, the Respondent submitted that it complied fully with the terms of this document and submitted that the Complainant received all payments due to him whilst on suspension. From a purely practical level, the Respondent further submitted that the majority of payments sought by the Complainant related to allowances for actually completing work, such as overtime and unsocial hours allowance. When these hours are not worked, it stands to reason that the Complainant would not be entitled to a payment in respect of the same.

Regarding the allegation regarding unpaid annual leave, the Respondent accepted that the Complainant had an entitlement to annual leave whilst on suspension. In this regard they further accepted that it was apparent that no annual leave was taken for much of the Complainant’s suspension. Notwithstanding the same, the Respondent submitted that there was nothing preventing the Complainant from taking annual leave should he so wish, and that having regard to the Complainant’s failures in this regard, his entitlement did not carry over from previous years.

The present case involves an allegation by the Complainant that the Respondent failed to properly pay his wages during an extended period of administrative leave. In circumstances whereby the alleged deduction in wages occurred some years prior to the referral of the complaint, the Adjudicator raised the issue of the time limits relevant to the impleaded Act.

In this regard, Section 6(6) of the Workplace Relations Act 2015 provides that,

“…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 6(8) provides that,

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In the matter of Health Service Executive -v- McDermott 2014 [IEHC} 331, Hogan J. stated that,

“…the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period”

And,

“For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

In the matter of Elsatrans Limited -v- Joseph Tom Murray, PWD 1917, the Labour Court found that when part of a complaint in relation to the non-payment of wages is referred outside of the relevant time-limits, this serves to render the entirety of the complaint out of time.

Having regard to the instant case, it is apparent that the Complainant has framed the present complaint to run for a period of a number of years prior to the referral of the complaint. In this regard, the second scenario envisioned by Hogan J above is applicable and the much of the matter is out of time.

While the foregoing might be the case for the majority of the Complainant’s allegations, the position is somewhat different for the complaint regarding unpaid annual leave. In this regard Section 23(1) of the Organisation of Working Time Act provides that,

“Where…(i) an employee ceases to be employed, and…(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee…the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.”

In this regard, the payment for outstanding annual leave would be properly payable on the date of cessation on the Complainant’s employment. In addition to the foregoing, it is noted that the specifics of the complaint relate to an allegation that the Complainant did not receive any annual leave for a number of years prior to his retirment. In such circumstances, the Complainant alleged that the same carried over, and that the entire sum was payable on the cessation of his employment.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the impleaded Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which there is a deficiency in respect of those such payments”.

During the hearing, the Complainant confirmed that he referred the complaint two days prior to the termination of his employment. This being the case, it is apparent that the right to any payments on the cessation of the Complainant’s employment would accrue following the termination of the same, at which point any payments due under Section 23, referenced above, become “wages” that are “properly payable” for the purposes of the present Act. Having regard to the foregoing, it is apparent that the complaint was referred approximately two days prior to the alleged wages becoming properly payable in this respect.

In the matter of Brady -v- Employment Appeals Tribunal [2013 No. 718 J.R.], in considering a similar issue regarding the premature referral of a complaint under a similar provision of the Unfair Dismissals Acts, Barrett J held that,

“A number of issues come into play at this point. The first is that prescribed time periods are typically intended to thwart the tardy, not punish the prompt. The second, is the longstanding principle of equity, good since at least the time of Smith v. Clay (1761) 3 BroCC 639n, that “Equity aids the vigilant, not the indolent”. The third is the practical issue of whether a person, here the Employment Appeals Tribunal, can be said not to have received notice within a prescribed period, if it had notice immediately prior to, at the commencement of, and throughout that period. It seems to the court that in the particular circumstances of this case it would be absurd to hold that where the Employment Appeals Tribunal had notice of the claim at the commencement of, and throughout, the six-month period, that Mr. Brady should be denied to opportunity to bring his claim because the Tribunal, through no fault of Mr. Brady, may also have had notice of the claim immediately prior to the applicable six-month period. The court finds support for this conclusion in the purpose that typically underpins prescribed time periods and in the equitable principle propounded in Smith v. Clayand referred to above. Moreover, the court considers that in reaching this conclusion no violence is done to the language of the Act. Section 8(2) requires that notice be given within the period of six months from the date of dismissal.”

Notwithstanding the foregoing, in the matter of Caragh Neeson-v- John O’Rourke & Sean O’Rourke Chartered Accountants (UD2049/2011) the Employment Appeals Tribunal considered the question of where a Complainant lodged the complaint while still being an employee of the Respondent.  In this regard, the Tribunal found that the wording of section 8(2) of the 1977 Act, “demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date”. The Tribunal went on to state, “if the Tribunal were to look with leniency on premature claims the system could well become clogged up with claims based on the expectation that a dismissal might occur sometime in the future which could later be withdrawn”.

Regarding the instant case, it is apparent that this portion of the complaint relates to the Respondent’s alleged failure to pay annual leave over a period of some years. In this regard, it is noted that the alleged loss in question had been accruing over a period of some years, and while the same became payable on termination, by virtue of Section 23, the alleged failure in this regard was occurring when the complaint was referred. In addition to the foregoing, it is apparent the Complainant was working a period of notice, as in Brady, and that all parties were long aware that the employment was due to terminate on the date in question Finally, I note that the Respondent did not raise any issue regarding this issue on receipt of the complaint as referred and presented a full defence to the allegations in hearing. In consideration of the foregoing points, it cannot be said that the present complaint relates to a hypothetical or speculative complaint and outlined in Neeson.In such circumstances, and in consideration of the aforementioned authorities, I accept jurisdiction to hear this portion of the complaint.

The matter of accrual of annual leave has been the subject of much consideration in recent times. In the matter of Kreuziger v Land Berlin C-619/16 the CJEU held as follows,

‘…it cannot be inferred from the Court’s case-law mentioned in paragraphs 30 to 33 of the present judgment that Article 7 of Directive 2003/88 should be interpreted as meaning that, irrespective of the circumstances underlying the worker’s failure to take paid annual leave, that worker should still be entitled to the right to annual leave referred to in Article 7(1), and, in the event of the termination of the employment relationship, to an allowance by way of substitution therefor, pursuant to Article 7(2).’

Later, at paragraph 42,

‘…the Court has in particular held that Article 7(1) of Directive 2003/88 does not in principle preclude national legislation which lays down conditions for the exercise of the right to paid annual leave expressly conferred by the directive, including even the loss of that right at the end of a leave year or of a carry-over period, provided, however, that the worker who has lost his right to paid annual leave has actually had the opportunity to exercise the right conferred on him by the directive.’

And at paragraph 52,

‘…the employer is in particular required, in view of the mandatory nature of the entitlement to paid annual leave and in order to guarantee the effectiveness of Article 7 of Directive 2003/88, to ensure, specifically and transparently, that the worker is actually given the opportunity to take the paid annual leave to which he is entitled, by encouraging him, formally if need be, to do so, while informing him, accurately and in good time so as to ensure that that leave is still capable of procuring for the person concerned the rest and relaxation to which it is supposed to contribute, that, if he does not take it, it will be lost at the end of the reference period or authorised carry-over period, or upon termination of the employment relationship where the termination occurs during such a period.’

In the matter of Legal Aid Board v Theresa McAteer, DWT 2318, the Labour Court found annual leave accrued in circumstances whereby,

“…the Respondent has not discharged the burden of proof they bear, to show that the Complainant was informed accurately, and in good time, that if she did not take the annual leave within the reference period the annual leave would be lost. “

Regarding the instant matter, it is common case that the Complainant was placed on an extended period of suspension for a period of over five years. In this regard, Section 16 of the Respondent’s suspension policy provides that,

“While on suspension, a suspended member’s working week will be considered 9am to 5pm each day on a Monday to Friday basis”.

During the hearing, the parties agreed that the period the Complainant spent on suspension constituted working time and that the Complainant’s annual leave accrued for the purposes of the Organisation of Working Time Act.  During the hearing, it was further accepted that the Complainant did not avail of any annual leave during his period of suspension.

In this regard, I note that the position adopted by the Respondent was that the Complainant simply failed to apply for annual leave and that his entitlement in this regard extinguished each year. In addition to the foregoing, the Respondent further submitted that there was no impediment or difficulty in the Complainant applying for annual leave. While the Complainant was not entitled to attend a Respondents station during his suspension, a liaison officer was appointed to him who would have organised such leave, had the same been requested. The Respondent submitted that given that the Complainant was not performing his normal duties, there was absolutely no impediment to his taking annual leave at any point of his suspension.

Having considered the foregoing, it is accepted that the Complainant accrued an annual leave entitlement whilst on suspension. In consideration of the submissions of the parties, it is further apparent that while it was open to the Complainant to avail of this annual leave, he did not do so for the period of suspension. While I agree with the Respondent’s submission that there was no impediment to the Complainant availing of annual leave, no evidence was provided of an effort to ensure that the Complainant was proactively encouraged to avail of the leave, nor is it apparent that the Complainant was informed that the leave would expire if he did not avail of the same. In this respect, it is apparent that the Respondent has failed in their obligations as outlined in paragraph 52 of Kreuziger. As a consequence of the foregoing, I find that the annual leave in question accrued throughout the period of the Complainant suspension and became properly payable on the cesser of his employment on accordance with Section 23 of the Organisation of Working Time. In such circumstances, the Respondent’s failure to discharge the same constitutes an illegal deduction for the purposes of the impleaded Act and the complaint is duly deemed to be well-founded.

Regarding redress in relation to the same, Section 6(1) provides that,

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be] (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment…”

Regarding the present case, the Complainant has alleged that he accrued some 200 days of annual leave over the period of his suspension. In this regard, it is noted that this figure is compiled from the Complainant’s contractual entitlement of 30 days of annual leave per year, as opposed to statutory entitlement of 20.

In the matter of Terveys-Ja Sosiaalialan Neuvottelujargesto (TSN) ry v Hyvinvointialan liito Ri C-609/17 and C-610/17, the CJEU held that annual leave entitlement in excess of that required by the Directive is not within the scope of the Directive. Having regard to the foregoing, it is apparent that the Complainant accrued 121 days of statutory annual leave on the termination of his employment. Given that the Complainant’s daily rate of pay was €202.46, the total amount due to the Complainant on the termination of his employment is €24,497.66.

In the matter of Penneys -v- Romana Vancekova PWD220, the Labour Court found that following a finding that matter is well founded for the purposes of Section 6, regard must be had to the appropriate level of redress given the circumstances of the matter.

Having considered the accumulation of the forgoing points, it is apparent that the Respondent is in breach of the Act by failing to compensate the Complainant for annual leave outstanding on the termination of his employment. Notwithstanding the same, it is noted that this situation arose on foot of an extremely unusual set of circumstances, with the annual leave in question accruing as a consequence of the Complainant’s failure to apply for the same whilst on suspension. In this respect, it is noted that this failure did not arise due to any work demands on the part of the Respondent, nor was any application for annual leave refused or cancelled at any stage.  Having considered the submissions of the parties, it is apparent that the Complainant failed to apply for annual leave in circumstances whereby he was not required to be present at his place of work and was not assigned any duties for the period in question. While it is accepted that the Respondent has a duty to positively ensure that the Complainant took and availed of annual leave in accordance with the Directive, and their failure in this regard renders them in breach of the legislation, it cannot be said that the present situation arose solely as a consequence of their inadvertence.

Having regard to the foregoing, I award the sum of €12,248.82, or half the amount due and owing to the Complainant, in compensation for the breach of the Act.

I find that the complaint is well-founded. I award the Complainant the sum of €12,248.82 in compensation for the breach of the Act. This payment is to be subject to all normal deductions as income.

Annual Leave, Accruing, Payment of Wages