Complainant

Respondent

Parties

Diarmuid  Corry

South Dublin County Council

Representatives

Keith Irvine LGMA

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-00046252-001

15/09/2021

The complaint concerns payment for call out duties, overtime and lunch-breaks during overtime.

The Respondent raised a preliminary matter that the cognisable period to which the complaint relates was 16 March 2021 to 15 to September 2021 – date Complaint Form was received by the WRC - and that allegations relating to pay from October 2021 to May 2022 were outside that cognisable period.

The Complainant stated that he was working for the Respondent for over 17 years without any prior issue. He outlined his role as a Supervising Water and Drainage Inspector and as Line Manager to 4 other Inspectors – all assigned to the drainage section of the Respondent. The Complainant outlined  the custom and practice and comparisons with other sectors up until 2019 whereby callouts were paid at a specific rate per call with no payment provided for availability. The Complainant stated the custom and practice rate paid to Inspectors on call equated to four hours overtime. He stated that if he as a Supervising Inspector attended a callout with an Inspector then he would also claim the same number of hours. The Complainant stated that if he did not attend in person then he would not  claim any overtime.

The Complainant stated that in July 2021 there was a deviation from the standard custom and practice whereby rates were reduced, that the reductions applied retrospectively and that he was not paid the overtime he was due since June 2021. The Complainant stated he was informed that as he was deemed not to be on call – unlike the Inspectors  or crews on call – that he was not entitled to this overtime albeit that he was still required “to be available constantly and continuously to deal with any issues that may arise outside of normal working hours”.  

The Complainant also stated there was a delay in payment of his overtime for regular and rostered Saturdays and an issue with 0.9 hours deduction for lunch breaks on Saturdays – which he unsuccessfully tried to resolve via the Respondent’s internal procedures. The Complainant provided a detailed breakdown both orally and in writing on the hours and pay he was owed from June 2017 until June 2021, from June to December 2021 and for “free” hours worked.

It is the position of the Complainant that the Respondent’s change of practice was unreasonable and unfair, that as a result of being continuously on call he has no leisure time or right to disconnect and that his efforts to resolve the matter internally were unsuccessful.

The Respondent stated that in addition to his regular salary, the Complainant is paid for validated and authorised overtime hours worked. The Respondent stated that the Complainant was paid at the correct and appropriate rate of pay for all overtime hours he actually worked and that he was not paid for overtime hours “submitted but not worked”. In respect of June 2021 the Respondent stated that the Complainant claimed eight hours over time for the 5th , 6th , 12th , 19th and 26th June 2021 – all of which he was paid with the exception of the eight hours claimed for the 6th  June 2021. The Respondent stated that the Complainant was paid two hours overtime on this date to reflect work he actually did in relation to checking an alarm.  The Respondent stated that in accordance with its overtime policy and Circular EL 01/89 overtime must be certified as necessary, that the hours worked must be deemed correct and that payment must be recommended. The Respondent stated that it was bound by the terms of Circulars EL 1/89 and EL 2/2021 which determined the overtime process including as regards the application of the first “free hour” for which the Complainant was paid for Saturday work from 1 July 2021.

The Respondent stated that as regards the Complainant’s overtime claim for August 2021, he was initially paid for 12 hours as opposed to the 16 hours claimed. In relation to 30 hours overtime claimed by the Complainant for September – up until 15 September 2021 - the Respondent stated that Management initially certified 18 hours due. The Respondent stated that the Complainant had not provided any backup information nor was there any available that any drainage works were being carried out during the additional hours claimed. However both August and September overtime payments were reviewed by Management in January 2022 following which new overtime claims were submitted for August and September 2021. This resulted in the Complainant being deemed to have been overpaid 4 hours overtime in August 2021 but underpaid for September 2021 as it was deemed he was due 21 hours overtime.

The Respondent stated it was an historic and established practice that water and drainage staff were deducted an unpaid lunch break for a full day worked on Saturday and Sunday. The Respondent stated that having reviewed this matter and on the basis of the Complainant’s 37 hour working week an incorrect deduction of .9 of an hour instead of .6 was made in respect of the Complainant’s lunch break. On that basis the Respondent stated that €327.75 was due to the Complainant for the period March 2021 to August 2021. The Respondent stated that the deduction of a lunchbreak ceased on the introduction of Circular EL 02/2021.

The Respondent’s HR Official gave evidence in relation to payments made to the Complainant. In the course of questioning the Complainant accepted that he was paid the first hour overtime on Saturdays from 1/7/2021. The Complainant also accepted the computation in relation to the amount of €327.75.

It is the position of the Respondent that the Complainant was paid all over time properly payable to him and that he has no entitlement to overtime not worked. The Respondent stated that it had refunded the Complainant any monies owed to him and/or was in the process of doing so. The Respondent also stated that the Complainant’s referral to the WRC was premature as internal dispute resolution mechanisms had not been exhausted.

Preliminary Issue:

In relation to the preliminary matter raised by the Respondent, Section 41(6) of the Workplace Relations Act [2015 - 2021] provides that:

“Subject to subsection (8), 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 41 (8) of the Act  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.”

The Complaint Form was received by the WRC on 15 September 2021 and accordingly, I have jurisdiction to deal with complaints relating to the six month period prior to that date  - ie from 16 March 2021. I am satisfied from the wording of the legislation that the contravention must precede the lodgement of the complaint. I am further satisfied that this approach is consistent with the High Court decision in Health Service Executive V John McDermott [2014] IEHC 331 that for the purposes of the Payment of Wages Act [1991-2017], each and every breach is considered a contravention provided such contravention occurred within the six months prior to the WRC complaint.  

In relation to any complaints relating to the period prior to 16 March 2021 and the possible application of  Section 41(8) of the Workplace Relations Act [2015 - 2021],  the Labour Court set the test for ‘reasonable cause’ in Cementation Skanska v Carroll, DWT 38/2003 as follows:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In the case of HSE and Dr Abdul Rauf [Determination No. FTD0817], the Labour Court stated that “A Complainant…..must also demonstrate that there are reasons but for which the case would have been referred in time” (emphasis added in bold).

In the present case, having considered all the evidence and submissions, I consider the Complainant has not demonstrated that there was anything new or particular which could explain or excuse the delay in his lodging his complaint within the prescribed six month time limit. Accordingly, I find that the Complainant has not shown reasonable cause to allow me extend the deadline for submission of his complaints to include the six months prior to March 2021. I am satisfied therefore that the cognisable period for the purpose of these complaints is 16 March to 15 September 2021.  

Substantive Issue:

Section 1 of the Payment of Wages Act [1991-2017] sets out the definition of wages as “any fee, bonus or commission, or any holiday, sick and maternity pay, or any other emolument, referable to [the employee’s] employment, whether payable under [the] contract of employment or otherwise…”.

Section 5(1) of the Payment of Wages Act [1991-2017] sets out the parameters according to which deductions may be made from an employee’s wages:

“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) states as follows in relation to wages which are properly payable:

             “5(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”.

I have carefully considered the sworn evidence, submissions and documentation furnished and in particular the following:

·        Circular EL 2/2021 which stipulates that “Overtime must be authorised by a more senior employee….” and that  “….Local Authorities should be satisfied that the amount or nature of the work to be done makes overtime unavoidable”;

·        The overtime sheets which similarly confirm that the payment of overtime is not automatic and is dependent on certification by a Manager/Senior Engineer that the work was necessary, that the hours claimed are correct and that payment is recommended;

·        The process of calculating overtime as set out in Circulars EL 1/89 and EL 2/2021 – the former which provided that the first hour was deemed free and the latter which changed the position for Saturday work from 1/7/2021;

·        The Complainant’s acceptance in the course of the adjudication hearing that there was no longer any issue with payment for the “free hour” on Saturdays and neither had he any issue with the amount of €327.75 owing to him for lunch breaks;

·        That other than comparing overtime paid over different periods of time, the Complainant – in my view – did not make out an adequate case that the reduced overtime or lunch break payments he received constituted breaches of the Payment of Wages Act [1991-2017] during the cognisable period.

In light of the foregoing and in all the circumstances, I have come to the conclusion that there were no unlawful deductions from the Complainant’s wages between the period 16 March and 15 September 2021, that he was paid his properly payable wages during that time and that any non-payment acknowledged by the Respondent was due to a computational error. 

CA-00046252-001

For the reasons outlined this complaint is not well founded. 

Overtime, Lunch Rates of Pay