PWD2454

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00019471 (CA-00029835-001).

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. 

A Labour Court hearing took place on 18 September 2024.

The following is the Court's Decision

DECISION:

This is an appeal by Eve Doherty, (the Complainant) against Adjudication Officer Decision ADJ-00019471 CA-0029835-001 given under the Payment of Wages Act 1991(The Act) in a claim that she suffered an unlawful deduction from her wages at the hands of her employer Department of justice /An Garda Siochana (the Respondent). The Adjudication Officer held that the complaint was not well founded.

The complaint was lodged with the WRC on the 23rd July 2019 and therefore the cognisable period as defined by the Act is the 24th January 2019 to 23rd July 2019.

Background 

The Complainant was employed as a member of An Garda Siochana. During the relevant period 24th January 2019 to 2nd July 2019 she was on unpaid suspension as she was serving a 20-month prison sentence. 

The complaint before the Court is in respect of not receiving payment while serving her prison sentence and following her release from prison on the 2nd July 2019.  At the commencement of the hearing the Complainant indicated her preference was to proceed by way of submission and not sworn evidence.

Summary of Complainants submission

The Complainant submitted that she commenced serving a prison sentence on the 31st October 2017 and that she was paid suspension pay until 30th August 2018, at which time the payment was stopped. The Complainant submitted that she never received the Garda Siochana (Discipline) Regulations 2007 or the policy documents in respect of suspension from duty.

The Complainant stated that she had received a document titled Appendix 1 notice to members on suspension, and she believed as she was on pay prior to her suspension she was entitled to suspension pay. In respect to the subheadings that stated suspension pay was not paid where a member is detained in pursuance of a court sentence and (b) where a member is placed in custody between conviction and sentence, she submitted as she had continued to be paid initially, she did not think that applied to her.

The Complainant stated that when she was released from prison, she was not put back on suspension pay in the run up to her ultimate dismissal from the force. It was her submission that the suspension rate of pay was properly payable during the relevant period.

Summary of Respondent’s submission

Mr Quinn BL for the Respondent submitted  that the decision to cease paying the Complainant suspension pay with effect from August 2018 is  clearly permitted by section 5 (1) (a) of the 1991 Act as it was authorised by HQ directive 073/2015 (as amended) and by Regulation 7 of the Garda Siochana (Discipline) Regulations 2007, as amended due to the fact that the Complainant was at the time committed to prison and serving a three year sentence. It is also the case that this decision was permitted by section 5(1)(b) of the 1991 Act, as it was authorised by provisions of her contract of employment- namely HQ directive 073/2015 (as amended) and by Regulation 7 of the Garda Siochana (Discipline) Regulations 2007, as amended, which it is submitted clearly form part of her contract of employment for the purpose of the 1991 Act.

The relevant 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. That matter having been addressed; it is for the Court to determine whether the wages actually paid on the occasion were less than the wages which were properly payable on the occasion. If the wages actually paid were less than the amount properly payable, then the difference could be concluded to be a deduction within the meaning of the Act. 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.

The following facts are not in dispute.

The Complainant was a member of An Garda Siochana and subject to its rule and regulations.

The Complainant was suspended from duty and placed on the suspension rate of pay.

During part of the cognisable period (24th January 2019 to 2nd July 2019), she was serving a custodial sentence pursuant to a court sentence and therefore not entitled to any payment.  

As the Commissioner was moving to dismiss the Complainant, she was on suspension without pay form the 3rd July 2019, until her dismissal in October. Mr Quinn BL for the Respondent accepted that the Complainant did not receive any correspondence or notification that she was not entitled to payment of the suspension payment for that period.

The Court reviewed the relevant directives, HQ directive 073/2015 (as amended) and Regulation 7 of the Garda Siochana (Discipline) Regulations which form part of the contract and terms and conditions of all gardai, which state in respect of the suspension allowance.

 During your period of suspension from duty you will be paid a suspension allowance in lieu of pay except in the following circumstances.

a) Where a member is detained in pursuance of a court sentence.

b) Where a member is placed in custody ( in prison or elsewhere) between conviction by a court and sentence

c) In any other circumstance where a member is refused bail, or

d) Where a member’s whereabouts is unknown to his/her District Officer

No suspension allowance will be paid to you if you have not been in receipt of pay prior to suspension”

It goes on to say that “ The payment of suspension allowance may be reviewed at any time at the discretion of the Commissioner. However, the payment of suspension allowance will be automatically reviewed in the following circumstances

1) If you are detained in pursuance of a court sentence

2) If you are placed in custody (in prison or elsewhere) between conviction by a court and sentence

3) In any other circumstance if you are refused bail, or

4) If your whereabouts is unknown to your District Officer

Where the payment of suspension allowance is subject to review, (except in those circumstances as described at 1-4 above), you will be invited to make a submission against the proposed review within a specified timeframe. You will be notified of the result of the review.

It is clear from the regulations that no entitlement to payment of the suspension allowance arises where a member is detained pursuant to a court sentence. For the period 24th January 2019 to 2nd July 2019 it is not disputed that the complainant was so detained, therefore there was no entitlement to payment of the suspension allowance during that period.   As no payment were properly payable for that period there could not have been an unlawful deduction.

For the period 3rd July to 23rd July 2019, Mr Quinn BL for the Respondent accepted that no review of her entitlement to suspension pay had occurred and that the Complainant had not been informed that she would not be entitled to suspension pay.  In circumstances where no review had been carried out, the Respondent was unable to direct the Court to a provision in either HQ directive 073/2015 (as amended) and/or Regulation 7 of the Garda Siochana (Discipline) Regulations which stated that there was no entitlement to the suspension allowance having completed a custodial sentence.

At this point in time as no review had been carried out and the Complainant did not fall into any of the excluded categories contained in the regulations, the suspension allowance was properly payable.  It is not in dispute that the suspension allowance was not paid during that period.  The Court having found that the suspension allowance was properly payable determines that the non-payment of same was an unlawful deduction during that period. 

Decision

The Court determines that as set out above the suspension allowance was properly payable for the period 3rd July 2019 to 23rd July 2019 and the failure to pay same was an unlawful deduction. The Court orders the Respondent to pay the Complainant the suspension allowance for that period of time.

The appeal succeeds 

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
07 October 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.