Complainant

Respondent

Anonymised Parties

An Employee

A Policing Service

Representatives

Representative Association

Industrial Relations Officer

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-00053363-003

20/10/2022

The Complainant referred her claim to the Director General of the WRC on 20 October 2022 alleging that the Respondent has not paid her or paid her less than the amount due to her.

The Complainant also referred a separate complaint pursuant to the Payment of Wages Act 1991 on 26 April 2024.

The complaints are related to a dispute under the Industrial Relations Act, 1969 which deals separately with the classification of the Complainant’s illness and which makes a recommendation in that regard.

The Complainant submits that the Respondent’s procrastination and avoidable delays in issuing a Code 11.37 certificate have caused her to lose half of her pay and having to move onto temporary rehabilitation remuneration. The Complainant is seeking restitution of her service, her pay and her sick days to reflect as injury on duty and not ordinary sickness due to stress in the workplace.

The Complainant submits that this complaint was referred to the Director General of the WRC on 20 October 2022 and relates to the period of the previous 6 months where due to the delays the Respondent making a decision on the category of sick absence of the Complainant, she had been completely removed from payroll on the 7 September 2022.

The Complainant submits that the amount due in respect of the cognisable period would be approximately €18,338.00 which would have been basic pay earning minus the TRR she was in receipt of up until 7 September 2022.

A further referral was made on 26 April 2024 (for the period of six months prior to the referral). This amount totals €28,973.50 which would be 6 months of basic pay.

The above amounts do not include loss of allowances earnings which, if the Complainant was in full employment, she would have been receiving.

Alternately, it is claimed that if the Complainant’s sick absence had been correctly categorised as per Code 11.37, the Complainant would be in receipt of full pay from 22 September 2020 to present until she returns to duty.

The Complainant gave direct evidence at the adjudication hearing. The evidence outlined the chronology of the events dating back from the Complainant’s injury on duty in November 2010, her dealings with the Respondent regarding same, and the effect it had on her. These events are described in detail in the associated recommendation issued regarding the Complainant’s dispute under the Industrial Relations Act, 1969. However, given the nature of this claim, there is no requirement to elaborate on the evidence given insofar as it concerns the Respondent’s alleged failures to deal with the issuing of the Code 11.37 certificate.

The Respondent submits as follows.

The Complainant sought a Code 11.37 certificate due to her unrequested transfer. This was rectified and the Complainant was returned to her original location in September 2021. She has not returned to work since this date despite being returned to her original location.

The Complainant has remained unfit for work since 22 September 2020 and has exhausted access to paid sick leave.

The Respondent was willing to return the Complainant to full pay for the period between her unrequested transfer appeared in the Personnel Bulletin and the Bulletin which cancelled this transfer given the finding of the investigator that the procedure used to effect this transfer was not in accordance with the relevant Code. In this regard, the Respondent agreed to pay the Complainant for this period. This amounted to pay for one year and 2 days or €57,612.94. This was not accepted by the Complainant.

The Respondent denies that it breached the Payment of Wages Act 1991 in not issuing a Code 11.37 certificate to the Complainant. The Complainant received all her remuneration entitlement under the Public Service Management (Sick Leave) Regulations 2014 while out sick.

There is no automatic entitlement to a Code 11.37 certificate. Each claim is dealt with on a case-by-case basis and on its own merits and is based on the Chief Medical Officer findings, the investigation findings and the views of management.

In addition, the Complainant had the benefit of an appeal when she was unsuccessful in her application. This is not provided for under the relevant Code currently and was introduced to ensure fair procedures pending the introduction of a new policy. Therefore, the Respondent does not believe that the Complainant is owed any money and the offer made previously was fair and reasonable in all the circumstances.

The Head of HR Directorate gave direct evidence at the adjudication hearing. As it was the case with the Complainant’s evidence, it related to the decision-making process with regards to the Code 11.37 certificate and to the role of the Head of HR Directorate in the process.

This matter was referred under the Payment of Wages Act, the provisions and scope of which is limited by the clear definitions and purpose as set out in the Act. Accordingly, I must confine my adjudication to the requirements of that Act.

The Relevant Law

Section 1 of the Payment of Wages Act, 1991 provides the following definition of wages:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Section 5 of the Payment of Wages Act, 1991 provides as follows:

Regulation of certain deductions made and payments received by employers.

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 Payment of Wages Act, 1991 address the circumstances in which wages which are properly payable are not paid:

(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.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 MacGrath J considered Section 5 of the Act as follows:

36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

There was no dispute that the Complainant was absent on sick leave from 22 September 2020. She was on full pay from 22 September 2020 until 18 December 2020, she was then placed on half-pay from 19 December 2020 until 26 February 2021, and subsequently on Temporary Rehabilitation Remuneration (TRR) from 27 February 2021 until 6 September 2022. The Respondent communicated to the Complainant that she had no further entitlement to TRR from 6 September 2022 and she was removed from payroll thereafter.

The Complainant maintains that her condition should have been classified as “Injury on Duty” and should have been paid in accordance with the relevant code.  The Complainant submitted an application in that regard. The Employer refused this application.

In essence, the Complainant seeks that the Adjudication Officer makes a decision that her illness falls into the category of “Injury on Duty” and disapplies the Respondent’s decision in that regard.

While in the associated recommendation with regards to the Complainant’s dispute under the Industrial Relations Act 1969 I expressed my concerns regarding the Respondent’s handling of the Complainant’s application for Code 11.37 certificate, the Adjudication Officer’s jurisdiction under the Payment of Wages Act is limited and does not extend to exercise a jurisdiction under the relevant Code in order to determine the wages properly payable to the Complainant.

I declare this complaint to be not well founded.

Sick leave pay- deduction-