PWD2251

1. Appeal of Adjudication Officer Decision No(s) ADJ-00026544 CA-00032455-001.


BACKGROUND:

2. Both parties appealed the Adjudication Officer's Decision to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991. The Employer appealed the decision on 5 August 2022. The Employee appealed the decision on the 8 August 2022. A Labour Court hearing took place on 2 December 2022. The following is the Determination of the Court:




DETERMINATION:

This is an appeal on behalf of South Dublin County Council (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00026544, dated 27 June 2022) under the Payment of Wages Act 1991 (‘the Act’). The Respondent’s Notice of Appeal was received by the Court on 5 August 2022. A cross-appeal was received from Mr Anthony Madden (‘the Complainant’) on 7 August 2022. The Court heard the appeal in Dublin on 2 December 2022.

The Factual Matrix

There is no material dispute between the Parties in relation to the facts giving rise to the within appeal and they can be summarised as follows. The Complainant was employed by the Respondent as a Depot Assistant from January 1997 until his retirement on 11 September 2011. Between 1997 and 2008, the Complainant worked an extensive amount of overtime in addition to his normal duties and was paid accordingly for all overtime hours worked.

The Complainant received his pension in the normal way following his retirement in 2011. However, in 2017 he instructed a solicitor to initiate an appeal on his behalf under the Superannuation Internal Dispute Resolution process to determine whether the overtime he had worked was reckonable for the purpose of superannuation benefits. The appeal did not succeed as the overtime worked by the Complainant was not deemed to meet the requirements of the relevant Circular (No 12/91). In 2019, the Complainant unsuccessfully escalated the matter to the Pensions Ombudsman. Eventually – on 21 November 2019 – the Complainant initiated a claim under the Act before the Workplace Relations Commission. That claim was upheld by the Adjudication Officer who decided that “overtime payments, for the six-month period ending on the 21^st November 2019 (sic), should be reckonable for superannuation purposes” and accordingly awarded compensation of €9,744.00 under the Act.

Preliminary Issues

The Respondent raised two preliminary issues that go to jurisdiction. Mr Irvine of the LGMA confirmed to the Court that both issues had been canvassed before the Adjudication Officer although neither is referred to by him in his written decision.

Mr Irvine submits that the within claim was referred to the Workplace Relations Commission on 21 November 2019, in excess of eight years after the Complainant had retired from his employment with the Respondent and must, therefore, be considered to be out of time having regard to section 41(6) of the Workplace Relations Act 2015. Secondly, Mr Irvine notes that the Complainant – in his referral to the Workplace Relations Commission - sought a “recalculation of my pension”. Mr Irvine submits that pension is expressly excluded from the definition of wages for the purposes of the Act. By way of reply to these preliminary matters, Ms Ireland for the Complainant submits that the complaint is not about pension but about whether or not the overtime worked by the Complainant whilst an employee is reckonable for superannuation purposes.

The Law

The Long Title to the Act of 1991 describes the purpose of the Act as follows:

• “An act to provide further protection for employees in relation to the payment of wages, to facilitate the payment of wages otherwise than in cash, for that purpose to repeal the Truck Acts, 1831 to 1896, and related enactments and to provide for connected matters.”

Wages for the purposes of the Act 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:

  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 41(6) of the Workplace Relations Act 2015 provides:

• “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”
  
  

Discussion and Decision

The Complainant herein ceased to be an employee of the Respondent on 11 September 2011. He has not been in receipt of wages (within the meaning of the Act of 1991) from the Respondent since that date and therefore, by operation of section 41(6) of the Workplace Relations Act 2015, he no longer had any standing to refer a complainant under the Act of 1991 (against the Respondent) from 10 March 2012 onwards.

On the other hand, the Complainant has been in receipt of regular pension payments from the Respondent since the date of his retirement. Such payments, however, are expressly excluded from the definition of wages in the Act. It is not in dispute that the Complainant was paid in full for all overtime hours that he worked as an employee. The issue of whether or not those overtime hours should be reckonable for pension or superannuation purposes is not one that falls to be considered under the Act of 1991.

For the aforementioned reasons, the Court finds that the within appeal on behalf of the Respondent succeeds and the Complainant’s cross-appeal fails. The decision of the Adjudication Officer is set aside in full.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
7 December 2022	Deputy Chairman