PWD219

1. Appeal of Adjudication Officer Decision No(s) ADJ-00018104 CA-00023389

BACKGROUND:

2. This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court in a virtual Court Room on 6 April 2021 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:



DETERMINATION :

This matter comes before the Court by way of an appeal by David O’Connor (the Appellant) against the decision of an Adjudication Officer in his complaint made under the Payment of Wages Act, 1991 (the Act) against his employer, HSE National Ambulance Service (the Respondent).

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

Preliminary matter

The Appellant submitted that whereas his appeal to the Court was made outside the period of 42 days permitted in the Workplace Relations Act, 2015 (the Act of 2015) for the making of such appeals, that exceptional circumstances existed which prohibited him from making the appeal in time. The Respondent submitted that no exceptional circumstances existed. The Act of 2015 at Section 44(4) permits the Court to extend time for the making of an appeal where it is satisfied that the delay was caused by the existence of exceptional circumstances. The decision of the Adjudication Officer was given on 29^th April 2020 and the within appeal was received by the Court on 10^th December 2020.

It is settled law that in order to consider an appeal of this nature the Court must first be satisfied that exceptional circumstances were in existence during the period for the giving of an appeal notice to the Court and the Court must also be satisfied that the exceptional circumstances applying prevented the giving of a notice of an appeal to the Court.

The Court considered the statutory provision in its decision, albeit in a case under a different statute, in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034) as follows:

• The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.

  The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.

In the circumstances outlined the Court finds that the Appellant has established that exceptional circumstances existed in this case such as to be regarded as being of a nature so as to prevent the lodging of the within appeal within 42 days of the date of the decision of the Adjudication Officer. The Court consequently decides, in accordance with the Act at Section 44(4), to extend the time for the making of the within appeal.

The Case

The Appellant has been employed by the Respondent since 2000. The Appellant contends that a failure by the Respondent to pay him premium payments in respect of weekend working from 20^th July 2020 to 3^rd September 2020 constitutes an unlawful deduction from the wages properly payable to him in the period. The Respondent contends that because the Appellant did not attend for work at weekends during the material time he was not entitled to receive payment of premiums as claimed.

It is common case that where an employee of the Respondent does not actually work unsocial hours which would attract a premium payment that such premiums are not paid except where:

• 
  • The employee is absent due to serious assault at work when payments can be made for a limited time

  • The employee is absent on force majeure leave granted under the Parental leave Act, 1998 as amended

  • The employee is absent and availing of the Injury at Work scheme

  • The employee is absent on protective leave in the context of disciplinary matters.

Summary position of the Appellant

The Appellant submitted that he had been wrongly placed on Health and Safety leave from 20^th July 2020 until 3rd September 2020 and, but for having been sent home under that policy, he would have been at work and the impugned deductions in the amount of €1,097.97 would not have taken place.

Summary position of the Respondent

The Appellant had been appropriately placed on leave following his suggestion that he was in some way at risk of physical injury by reason of the introduction of a new system in the employment and his self-referral to Occupational Health. The terms of his engagement with the Respondent provide on a contractual basis that premium payments, except in four clearly stated instances, are not liable to be paid to the employee when he does not actually work those hours.

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

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.

• “…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…”

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, the Court would then consider whether that deduction was lawful.

The Appellant in this appeal has asked the Court to consider the background to his having been placed on leave at the material time. The Court’s jurisdiction under the Act is however not to determine the reasonableness or otherwise of either party in addressing issues which had arisen between them prior to 20^th July 2020 and consequently to consider whether it was reasonable to place the Appellant on leave in the circumstances then applying. The matter before the Court concerns the wages of the Appellant in the period from 20^th July to 3^rd September 2020.

It is common case that the Appellant was absent on leave at the material time. It is also common case that he was not absent due to serious assault at work, absent on force majeure leave granted under the Parental leave Act, 1998 as amended, absent and availing of the Injury at Work scheme or absent on protective leave in the context of disciplinary matters.

In these circumstances it is clear to the Court that, the Appellant being on leave at the material time and consequently not attending for work at weekends, no contractual or other entitlement to payment of weekend premium existed and that the wages paid to the Appellant were the wages properly payable to him in the period. The Court having reached this conclusion is not able to find that a deduction within the meaning of the Act was made from the wages of the Appellant during the period from 20^th July 2020 to 3^rd September 2020.

Determination

The Court determines that the Respondent paid to the Appellant the wages which were properly payable to him at the material time for the within complaint.

The Appeal therefore fails and the decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CO'R	______________________
12 April 2021	Chairman