PWD2460

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037189 (CA-00048539-001)

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 on 15th October 2024 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 by way of an appeal by James McMahon (the Appellant) of the decision of an Adjudication Officer in his complaint made under the Payment of Wages Act, 1991 (the Act) against his employer the HSE (the Respondent).

The Adjudication Officer decided that the complaint was not well founded.

Summary submission of the Appellant

The Appellant submitted that his complaint could be clarified as different to the complaint which had been described to the Adjudication Officer in that he now contends that the Respondent made an unlawful deduction of €75.02 from the wages properly payable to him on 27th January 2022, which included payment in respect of a period of Covid related special leave from 3rd to the 9 January 2022. It had been agreed between Trade Unions and the employer in the employment that during the global pandemic, workers who were unable to attend work were entitled to Special Leave with Pay during their period of self-isolation or illness. He contends that his pay on the occasion should, as had been agreed in the employment, have been calculated so as to include an average of the overtime payments received by him in the six weeks prior to his period of Covid Related Special Leave.

The Appellant agreed when questioned by the Court that he had received no overtime payments during the six weeks prior to the commencement of his period of Covid related special leave when he was unable to attend work.

Summary submission of the Respondent

The Respondent submitted that the Appellant was not in receipt of payments for overtime worked in the six weeks prior to the commencement of a period of Covid related special leave in January 2022. He was rostered to work an average of 39 hours per week at all material times. He was at all material times paid wages equal to 39 hours pay each week, and no reduction in wages was suffered by the Appellant on 27th January 2022.

There was an agreement in the employment that those workers who could not attend work during the pandemic would, subject to certain conditions, be paid wages as normal to include an average of the overtime payments made to the worker in the six weeks prior to the commencement of the special leave.

The Appellant was paid no overtime in the six weeks prior to the commencement of his special leave and consequently no payment in respect of an averaging of the overtime paid to him was properly payable to him on the occasion.

The 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 Court has some concerns as regards the apparent fact that the complaint of the Appellant which was outlined to the Court was not the complaint originally made to the Workplace Relations Commission on 8th February 2022 and the allegation of a breach of the Act differed significantly from that which had been the allegation which was before the Adjudication Officer. The Court, noting that the complaint outlined at its hearing fell in the cognisable period for a complaint made on 8th February 2022, agreed to proceed to hear the parties. Neither party objected to the Court’s decision in this regard.

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. 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.

In this complaint the Appellant contends that  the wages paid to him on 27th January 2022 included wages in respect of a period of Covid related special leave from 3rd January 2022 to 9th January 2022. He contends that a payment of €75.02 was properly payable to him on the occasion and was not paid to him. That amount was, in his submission, an average of the overtime paid to him in the six weeks prior to his commencement of special leave.

It is common case that the worker was not paid any overtime at all in the six weeks prior to the commencement of his period of special leave.

On the facts of the matter the Court must conclude that the wages paid to the worker on the occasion were his normal wages with no additional payment deriving from an averaging of overtime payments. This was so because no overtime was paid in the averaging period. The Court must also conclude that these were the wages properly payable to the Appellant.

The Court concludes that the within complaint is entirely misconceived and that the within appeal must fail.

Decision

The wages properly payable to the Appellant on the occasion were his normal weekly wages, and the wages actually paid to him on the occasion were his normal weekly wages. No deduction within the meaning of the Act occurred on the occasion.

The within appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
30th October 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.