PWD2433

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044826 (CA-00055593-004)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court 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 Grant Engineering (the Respondent) of a decision of an Adjudication Officer in a complaint made by Danny Kearns (the Complainant) under the Payment of Wages Act, 1991 (the Act).

The within complaint was one of eight complaints made by the Complainant and all eight complaints were decided at first instance by the Adjudication Officer and have been appealed by the Respondent.

Background and summary position of the parties

The within complaint relates to 22nd September 2022. The Complainant maintains that, on that occasion, the wages properly payable to him amounted to €5.92 more than the wages actually paid to him. He maintains that on the date in question he was assigned to testing in the welding area and that previous practice and local arrangements were such as to mean that he should have received a payment of €5.92 in addition to the wages set out in his contract of employment in acknowledgement of that assignment on that day. In fact, he received only the wages due to him according to his contract of employment and no payment in respect of his assignment to testing in the welding area on the occasion. He submitted that the difference between the wages actually paid to him on the occasion and the wages properly payable to him amounted to a deduction within the meaning of the Act, and that this deduction was unlawful.

The Respondent submitted that arrangements in place in the employment are that when a worker is assigned to testing in the welding area for a week, he or she is paid €5.92 per day for each day of that week. Whenever a worker is assigned to testing in the welding area for any period of less than one week’s duration, no additional payment is made in respect of assignment to testing in the welding area. At no point did the Complainant receive a salary below that provided for in his contract of employment taking account of (a) the written contract of employment, (b) the operation of the written contract and (c) the established norms of the Respondent more generally. If the Complainant ever received a higher rate of pay in a situation where he was not fully assigned to testing it would have been due to payroll error and would have been an overpayment.

Summary evidence on behalf of the Complainant

The Complainant stated that it was his understanding that once a worker was assigned to testing in the welding area for a day he or she was entitled to be paid €5.92 on that day. He stated that he was paid the amount on a number of specified occasions and was not paid the amount on other unspecified occasions. He stated that he was unaware of whether other workers in the employment were paid €5.92 on each day they were assigned to testing in the welding area.

Summary evidence on behalf of the Respondent

Gary Kelly, a HR manager in the employment since 2017, stated that the clear practice was that an enhanced payment was only ever paid when a worker was assigned to testing in the welding area for a week. No payment was made to any worker, unless by error, if the period of assignment was less than one week. He stated that the relationship with SIPTU, the Union recognised for negotiation on terms and conditions of employment for workers of the Complainant’s grade, were good. They include a regular monthly meeting whenever possible. He stated that a current issue under consideration at such meetings is the position of the Trade Union, recently raised, that payment of the enhanced rate for assignment to testing in the welding area be made daily rather than being confined, as presently, to occasions where the assignment lasts a week. He stated that payroll errors in the employment occur reasonably regularly and that any payment of the enhanced rate to any worker who was assigned to testing for a period of less than a week would be a payroll error.

Discussion and conclusion

The Court has considered the submissions, sworn evidence and documentation submitted by the parties, including the contract of employment of the Complainant. The Court is satisfied that the Complainant has failed to establish that an additional payment of €5.92 was properly payable to him on the 22nd September 2022.

Decision

The Court decides that the wages actually paid to the Complainant on the 22nd September 2022 were the totality of the wages properly payable to him on that occasion.

The within appeal must therefore succeed and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
AR	______________________
17 June 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.