PWD2616

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00053925 (CA-00065931-001).

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 on 17 June 2026.

The following is the Court's Decision:

DECISION:

Leo Hogan (“the Complainant”) has appealed a decision of an Adjudication Officer made under the Payment of Wages Act 1991 (“the Act”).  The Adjudication Officer held that Leo Hogan’s claim againstEntegro Limited(“the Respondent”) was not well founded. 

An appeal was lodged to the Labour Court on 22 November 2025.  A hearing of the Court was conducted in Waterford on 17 June 2026. The Court heard submissions from both parties. The Court heard sworn witness testimony from the Complainant and from Anita Walsh, Head of People and Talent with the Respondent company.

Summary of the Complainant’s position

The Complainant was employed as a Telecoms Field Surveyor. His role involved nationwide field-based work and his work locations changed regularly depending on operational requirements. 

Prior to March 2024, the Complainant was remunerated on the basis of approximately €142 per 8-hour working day together with travel-related subsistence payments. His payslips prior to March 2024 demonstrate that travel and subsistence formed a significant and consistent part of his remuneration.

On 23 March 2024, the Complainant commenced duties as a Team Leader and was informed that his daily rate would increase to €150 per 8-hour working day. In and around the same time, the Respondent unilaterally changed an established custom and practice regarding travel payments. This change was implemented following a Toolbox Talk. The changes implemented required a contractual amendment, yet no amended contract issued to him. Despite the Complainant’s objections, the Respondent proceeded to apply their revised interpretation of travel time.

Despite continuing to work long working days with increased responsibilities, the Complainant’s payslips demonstrate that he was subject to a material reduction in remuneration after March 2024.

Travel time is a central aspect of the issue in dispute. The Complainant’s role involved extensive employer-directed travel.  When working at one location, he was required to collect a colleague daily from Kilkenny and transport him home each evening. This further increased the extent of employer-directed travel undertaken as part of his working day. The travel undertaken was not ordinary commuting but arose directly from operational requirements imposed by the Respondent.

The Respondent’s Toolbox Talk documentation states that “Entegro will supply overnight accommodations for those working on National Contract Works.” In practice, accommodation was not provided.

The Complainant’s contemporaneous records demonstrate that he repeatedly worked more than 10 hour days. His payslips do not demonstrate payment’s corresponding with those hours. On 26 April 2024, after reaching 40 hours worked, the Complainant notified the Respondent that he would not work more than his contracted 40 hours per week. The Respondent was fully aware of the Complainant’s understanding of his contractual working hours. No clarification or contractual amendment was provided following this communication.

The Respondent’s Driving for Work Policy confirms that company vehicles were fitted with telematics capable of monitoring vehicle usage, driver location, route planning and driver whereabouts. These systems could record the Complainant’s travel duration and movements, which would have provided objective evidence of has travel time. Despite this, no telematics evidence was produced by the Respondent.

Summary of the Respondent’s position

The Complainant commenced his employment as a Telecoms Field Surveyor in January 2022. He resigned his position in September 2024. There has been no deduction from the Complainants pay within the meaning of the Payment of Wage Act, 1991 or at all.

The Complainant was remunerated by means of basic salary, together with a Credit Based Payment System and Quality Based Measurement Payment, paid bi-weekly. He was not paid an hourly rate. The Complainants contract clearly states that he is a salaried employee and that he may have to work more than 8 hours per day. The Complainant was paid a salary for all work done.

The Complainant was required to travel to various sites and was informed a week in advance of where he was to be based the following week.

From 26 April 2024 the Complainant stopped attending work when he believed he had worked enough hours. As the Complainant only worked a four-day week or less from 26 April 2024 he was paid accordingly.  He was issued with a verbal warning dated the 16 May 2024, which states inter alia as follows: “You must immediately resume your i.e. agreed working pattern as per your Contract of Employment and Terms and Conditions of Employment and follow the number of contracted working hours”. Despite this clear instruction to attend work five days per week the Complainant continued to absent himself on Fridays of his own volition. As the Complainant was contracted to work a five-day week, he was not entitled to a payment for days he did not work.

The Complainant’s hours as recorded do not demonstrate that he was underpaid, as his working hours, excluding travel time were much less than 8 hours. Even were time travel included, the Complainant has failed to set out any alleged underpayment or deductions.

The Complainant has failed to particularise his claim adequately or at all. The Complainant has specified only one alleged contravention and claims the amount due to him was €4837.25 on 4 July 2024. As the Complainant is paid bi-weekly it is not possible that the sum of €4837.25 was due to be paid to him and not paid to him on 4 July 2024.  As established by Hogan J in HSE V McDermott 2024 [IEHC] 331, each pay period in which an alleged breach occurred represents a new cause of action. The only contravention alleged by the Complainant relates to 4 July 2024.  Any alleged contravention prior to that date is now out of time. 

Without prejudice to the foregoing, the Complainant appears to argue that that his travel time was working time, which is disputed. Whether it is working time has no impact on whether the Complainant was entitled to be paid, as he was a salaried employee and is not entitled to any additional payments pursuant to his contract of employment or otherwise. The Complainant may be required to work hours more than those set out in his contract. To attract the payment of his salary, he must work 5 days a week.

The Complainant unilaterally took it upon himself to cut his working week short. He is not entitled to be paid for days he did not attend work. As the Complainant did not do any work when absent, he has no entitlement to be paid when he was absent from work. It follows therefore that there were no unlawful deductions from his wages.

The Respondent relies on the following authorities: HSE V McDermott 2024 [IEHC] 331; Breffni Carpentry Services Ltd v Solodounikovs; DWT0816, Gfencheva v ISS Ireland DWT1157, Sylwia Ignocok v Caspian BMP Ltd ADJ 00043205; Moore v Ringsend Community Services Forum CLG PWD2450.

The Applicable Law

 Section 1 of the Payment of Wages Act 1991 (“Act”) provides in part as follows:

              “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, or

               (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:

               Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

               (i) any payment in respect of expenses incurred by the employee in carrying out his employment,

               (ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

               (iii) any payment referable to the employee's redundancy,

               (iv) any payment to the employee otherwise than in his capacity as an employee,

               (v) any payment in kind or benefit in kind.

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

(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.

(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.

7. Deliberations

The Act provides that where the total amount of wages properly payable to an employee is not paid, any deficiency is regarded as a deduction. Consequently, to ground a claim under the Payment of Wages Act 1991 the Court needs in the first instance to ascertain what wages are properly payable.

In Balans v Tesco Ireland Limited [2020] 31 E.L.R. 125 MacGrath J. held that the first matter to determine in assessing if a contravention of the Act occurred is to establish what wages are properly payable under the contract. Accordingly, the starting point for assessing what is properly payable is the Complainant’s contract of employment.

The relevant clauses from the Complainant’s Statement of Main Terms and Conditions of Employment are as follows:

“Salary:                Surveyor Band 3 €29,906.50 gross per annum base salary plus an incentive Credit Based Payment System and Quality Based Measure Payment Paid Bi-weekly for Previous Applicable Periods.

Weekly Hours:   40

Hours of Work   Your working pattern per week is Monday to Friday.

                          Working Hours are 8 hours per day exclusive of a one-hour lunch break.

                          The Company Office Hours are 9am to 6pm, flexible working arrangements can be made with your Line Manager in line with the Company’s Core Working Hours and Client Requirements.

                          You are expected to work a “Professional Day” so your working hours may not be limited to these hours.”

The Complainant contends that he was subject an unlawful deduction from his wages on 4 July 2024 amounting to €4,837.50. His evidence is that the figure of €4,837.50 is the cumulative amount of unlawful deductions by the Respondent in the period from 18 March 2024 to 8 July 2024.

The Complainant did not provide details of the contraventions alleged during that period, or an explanation of how calculated the figure of €4,837.50. He said that he did not realise that he would need to provide details of each breach of the Act in the period relating to his complaints. 

The Respondent submits that the Complainant has not identified any contraventions of the Act, other than a single breach alleged on 4 July 2024, and that each breach of the Act alleged is a standalone cause of action, which must be articulated by the Complainant.  The Respondent relies on the decision of Hogan J in Health Service Executive v McDermott [2014] IEHC 331, where the meaning of the term “within 6 months beginning on the date of the contravention which the complaint relates” was considered in some detail.  Hogan J held:

14. … the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.
15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

Notwithstanding the Complainant’s failure to provide a full breakdown of the contraventions alleged on 4 July 2024, or in the period from 18 March 2024 to 5 July 2024, Counsel for the Respondent went through each payslip for that relevant period with the Complainant. The payslips set out details of the salary and subsistence payments made to the Complainant in each pay period. 

Salary

In relation to the salary payments made to him, the Complainant accepted that his annual salary at the relevant time was €29,906.50, as set out in his contract of employment, which equated to a daily rate of €142.63. He accepted that he was appointed to a temporary post while working on one site, which attracted a daily pay rate of €150 per day, and that he was no longer in that position by July 2024.

The Complainant accepted that his contract specified a five-day working week. While the Complainant contends that he is entitled to be paid for all hours worked in excess of 40 hours a week, his own evidence was that he unilaterally stopped attending work when he reached 40 hours and ceased working five days a week from 26 April 2024 onwards. 

It is clear from the Complainant’s contract of employment that he is a salaried employee who is contractually obliged to work a five-day week. The contract states that his working pattern is Monday to Friday with working hours of 8 hours per day exclusive of a one-hour lunch break.

The contract states that the Complainant’s working hours may not be limited to the hours specified.  There is no provision in his contract terms for payment of overtime rates.

Having regard to the submissions made, the Complainant has failed to articulate how he was entitled to any additional salary payments over and above those made to him during the period from 18 March 2024 to 5 July 2024. Therefore, he has failed to establish that any further salary payments were properly payable to him during that time.

Travel Time

The Complainant further contends that he was not paid for travel time, which he contends is working time. His evidence was that he dropped a pin of his location to the Respondent when he left home each morning and on arriving at his work location. He then dropped a pin of his location when leaving the work location and again on arriving home.

While the Complainant’s strong evidence was that he did not agree with the company policy on travel time, he accepted that the company policy communicated to him at a toolbox meeting in March 2024 was as set out in the company handbook, which states that commuting time to and from work does did not form part of working time. The policy further states that where travel journeys to site locations exceeds 1.5 hours from an employee’s home, time spent travelling above 1.5 hours is to be regarded as paid travel time.

While the Complainant contends he was paid for all of his travel time in the past, no evidence was presented to the Court to support that assertion or to support the assertion that there was an established custom or practice in the employment of paying employees for all of the time they spent travelling to and from site locations.

Having regard to the submissions and evidence tendered in this case, the Complainant has failed to establish that the wages he claimed were ‘properly payable’ to him during the relevant period for his complaint. It follows that he has failed to establish that he was subject to unlawful deduction to those wages.

When pursuing a complaint under the Act, it is for the Complainant to establish what wages were properly payable to him or her during the relevant period, such that any shortfall in those wages amounts to an unlawful deduction under the Act. As no unlawful deduction in his wages was identified by the Complainant at the hearing, the Court finds the within complaint is not well founded.

Decision

The Court finds that the complaint is not well founded.

The decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
02/07/2026	Deputy Chairman

NOTE

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