PWD2316

1. Appeal Of Adjudication Officer Decision No ADJ-00029618, CA-00039481-002

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 on 03 May, 2023 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 as an appeal by Mohsin Moola (the Appellant) against a decision of an Adjudication Officer in his complaint made under the Payment of Wages Act, 1991 (the Act) against his employer Irish Prison Service (the Respondent). The complaints under appeal to the Court were made to the Workplace Relations Commission on 31st August 2020.

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

Background

The Appellant is a medical doctor employed by the Respondent. He contends that he negotiated an individualised employment contract with the Respondent in order to attract him into the service of the Respondent resulting in him relocating back from South Africa to Ireland in January 2007. He contends that his individualised contract of employment was not in writing and was concluded by ‘phone with Mr Liam Dowling who was then the Governor of Cloverhill Prison.

The complaint before the Court is that the Respondent, in that individualised non-written contract, agreed to pay to the Appellant an on-call allowance equivalent to twice the value of the on-call allowance provided for in what is referred to as the 2004 template Contract. The Court understands that the 2004 template contract is a contract which addresses a range of terms and conditions of employment of doctors in the service of the Respondent and is a result of engagements between the Respondent and the IMO at that time. The Appellant contends that he had a contractual entitlement to an allowance of €199.39 per week as distinct from €199.39 per fortnight as contended for by the Respondent.

It is not disputed that the Appellant did receive a weekly allowance in the amount of €199.39 between January 2007 and August 2010. That amount represented twice the level of allowance paid to other doctors in the prison service during the same period. The weekly allowance paid to the Appellant was reduced by the Respondent to €94.71 per week which included the implementation of a ‘FEMPI cut’ and what the Respondent submitted was a correction of a calculation error which had been in place since 2007. This reduced weekly payment is contended by the Respondent to be the amount of weekly allowance paid to all other doctors in the service of the Respondent and the amount specified in the 2004 Template Contract as adjusted by reductions required by the ‘FEMPI’ statute.

The Appellant contends that a breach of the Act has occurred since August 2010 whereas the Respondent submits that the weekly payment to the Appellant of an amount equivalent to twice the weekly amount paid to other doctors in the prison service between 2007 and 2010 was an error of computation within the meaning of the Act at section 5(6) which was discovered and addressed in 2010.

Separately to the within appeal, the Appellant has submitted multiple complaints to the Workplace Relations Commission since 2016 and it is understood that a range of decisions made by Adjudication Officers in respect of those complaint are separately before the Court on appeal.

Appellant estopped from pursuing the within complaint.

The Respondent submitted that, by application of the rule in Henderson V Henderson (1843) 3 Hare EWCA Civ 199, the Court should dismiss the within appeal. The Appellant had ample opportunity in the earlier EAT proceedings which concerned the same set of facts as those underpinning the within appeal, to make a complaint as regards an alleged breach of the Act involving an on-call allowance. It would, in the submission of the Respondent, have been logical and sensible for the Appellant to have brought his claim in respect of the on-call allowance before the EAT in the proceedings which were decided in 2017. The decision of the Appellant not to pursue the claim currently before the Labour Court at the earlier EAT hearing has prejudiced the Respondent in having to prepare for the hearings of the Court and to re-call witnesses, some of whom have retired.

The Appellant submitted that the Appellant is not estopped from pursuing the within complaint by application of the rule in Henderson. He submitted that the rule in Henderson was summarised in that case by Wigram VC as follows

• “I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward the whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time.”

• “does not operate as an absolute bar. As Lord Bingham said in Johnson it requires a merit based approach which takes account of all the facts including the public and private interests involved …,”

• “it is … wrong to hold that because a matter could have been raised in the earlier proceedings it should have been so as to render the raising of it in later proceedings necessarily abusive”

Discussion and conclusion on this matter.

The complaint on appeal to the Court involves an alleged breach of the Act. The cognisable period for the complaint is the period between 1st March 2020 and 31st August 2020. No element of the matter before the EAT in the case decided in 2017 related to the Appellant’s entitlement to be paid an ‘on-call’ allowance and neither did any aspect of that decision deal with the amount of any such contractual allowance or at all. In the within complaint the Appellant contends that the Respondent was in breach of the Act in that unlawful deductions were made from an on-call allowance on dates in 2020.

It appears to the Court that the Respondent is contending that because the Appellant did not make a complaint under the Act relating to an on-call allowance in 2017 when he made various other complaints under the Act, he is estopped from making a complaint that deductions were, allegedly, unlawfully made from wages properly due to him in 2020.

The Court cannot accept that any such estoppel can be concluded to apply to the Appellant’s claim under statute. It is common case that no complaint that the Respondent breached the terms of the Act in respect of alleged deductions from a contractual entitlement of the Appellant to an on-call allowance has heretofore been decided by any tribunal or Court

The Court notes the assertion by Barr J. in Munnelly v Hassett IEHC [2023] 34 ELR 65 that

• “The plaintiff enjoys a constitutional right of access to the courts. This *76 means that she is entitled to bring proceedings complaining about alleged wrongdoing on the part of the named defendants. She is entitled to obtain a fair hearing in relation to her complaints. She is entitled to a decision on the complaints that she made against the named defendants.

  49. It is common case, that in the first set of proceedings, the plaintiff did not get a decision on a number of the issues raised by her in her amended civil bill. In these circumstances, the court is satisfied that it is not frivolous, vexatious or an abuse of the process of the court, nor in breach of the rule in Henderson v Henderson, for the plaintiff to ventilate the same issues in a subsequent set of proceedings. It would be frivolous and vexatious to do so, if she had got a decision on those issues in the previous proceedings; but, having regard to the averments made by Ms Hassett in her affidavit, it is clear that the plaintiff did not get any decision on those issues. Thus, there is no question of the plaintiff relitigating these issues, because she did not get a decision on them.”

The Court concludes, having regard to the nature of the within complaint and the nature of the statutory time limits applying, that the rule in Henderson cannot be applied so as to estop the Appellant from pursuing his statutory entitlement to make a complaint as regards an alleged breach of the Act occurring in 2020 and to have that complaint decided in the manner set out in the Act.

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.

(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.

• 34. Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where 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, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion.

  35. Central to the court's analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation.

  36. The provisions of s.5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the Employment Appeals Tribunal. It was argued that the Employment Appeals Tribunal should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p.482:

  • “I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in *138 law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as implicit in the determination of the Employment Appeals Tribunal a finding is that the appellant agreed to pay to the respondents service pay and a long service increment then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18 September 2002. In either case there has been an error of law. Accordingly, I allow the appeal.”
  37. This decision supports the proposition that the first matter which should be addressed by the Labour Court is to determine what wages are properly payable under the contract.

It is only when that is determined can the Court proceed to examine whether that amount differs from that which was actually paid on the occasion and whether any difference amounted to a deduction within the meaning of the Act.

Summary of the submission of the Appellant

The Appellant submitted that his contractual entitlement was to a weekly on-call allowance. He submitted that an earlier decision of the EAT has a significant bearing on the within case in that it dealt with a dispute as regards entitlements of the Appellant arising from his individualised contract with the Respondent. The decision of the EAT, while addressing as it did the application of the Act to certain matters associated with the Appellant’s contract, did not deal with an alleged breach of the Act related to on-call allowance.

The Appellant submitted that he negotiated an individualised contract with Liam Dowling, then Governor of Cloverhill Prison, in 2007. That allowance was in the amount of €199.39 per week and it was the allowance paid to him from his commencement in employment in January 2007.

He submitted that his payslips from 2007 to 2010 made it clear that his weekly on-call allowance was €199.39. He did not possess the ability to determine the rate himself. The amount of his weekly allowance was the negotiated individualised contractual figure of double the 2004 template contract on call allowance. The 2004 template contract is a template contract concluded by agreement between the Respondent and the IMO.

The individualised terms agreed with Mr Dowling resulted in his agreeing to commence employment with the Prison Service for a temporary period of six months with effect from January 2007. That contract addressed a range of elements of the Appellant’s terms of employment which were not identical to the terms provide for by the 2004 template contract and it is clear that by applying such different terms, the Respondent accepted that the Appellant was not engaged on the terms set out in the 2004 template contract. The individualised contract was never reduced to writing and was concluded over the course of three relatively short ‘phone calls from Mr Dowling in Ireland to the Appellant in South Africa.

Summary of the testimony of the Appellant.

The Appellant stated that he had been contacted in South Africa by Liam Dowling in early 2007 having completed a locum contract with the Respondent in 2006. He stated that Mr Dowling offered him a permanent position on the terms of the 2004 template contract. The Appellant declined that offer. His decision to decline that offer was founded significantly on his dissatisfaction with ‘out of hours’ payments. He was also unhappy with arrangements to allow him to work outside of the prison system in order to maintain his medical skills across a number of patient profiles. The 2004 contract did not allow for such external employment.

He said that Mr Dowling agreed to his working outside the prison system.

Mr Dowling also agreed that the Appellant would be paid twice the on-call allowance provided for by the 2004 contract and a range of other individualised arrangements.

Under cross examination the Appellant agreed that the engagement with Mr Dowling amounted to three ‘phone calls of approximately 10 minutes duration each.

The Appellant agreed that no note of the ‘phone calls were made by him. He also agreed that his first claim under the Act in respect of the alleged breach of the Act which he contended had occurred in 2010, was made in 2016.

Summary of the submission of the Respondent

The Respondent submitted that no agreement was reached with Liam Dowling in 2007 that the Appellant would be paid double the standard ‘on-call’ allowance.

The allowance paid to the Appellant from 2007 to 2010 was paid due to a computational error. Instead of being paid a fortnightly allowance of €199.39, the Appellant was paid this amount weekly. An administrative error arose because, whereas the Respondent’s employees are normally paid fortnightly, prison doctors are paid weekly. The error was spotted by the Respondent during the process of implementing the ‘FEMPI’ cuts in 2010 and corrected at that time.

The Respondent submitted that an earlier decision of the EAT which had been referred to by the Appellant as supporting his contention that he had a contractual entitlement to a payment equivalent to double the ‘on call allowance’ was a decision which did not address the matter and was one in which the Tribunal concluded that the matters before it resulted from the Appellant being placed on “locum rates”.

The Respondent submitted that a reliance on this decision in the within matter fails to recognise that locum doctors are not paid an ‘on-call’ allowance or a double ‘on-call’ allowance and no matter concerning such an allowance was before the Tribunal.

The Appellant never raised a formal complaint before the WRC or its predecessor when the over payment of ‘on-call’ allowance was corrected on 5^th August 2010 or at all until he raised such a complaint in 2016. The Respondent submitted that the Appellant did raise other matters associated with his alleged unwritten contract at the EAT and those matters related to dates of alleged breaches of statute in 2013 and 2014 but made no complaint as regards the correction of the ‘on-call’ allowance paid to him at that time. He was at that time represented by his representative body, the IMO, and by Counsel.

The Respondent submitted that no individualised contract upon which the within complaint is founded would have been within the gift, mandate or jurisdiction of Liam Dowling, Governor of Cloverhill prison at the time to conclude.

Summary testimony on behalf of the Respondent.

Liam Dowling

Mr Liam Dowling gave evidence to the Court. He was the person alleged, as then Governor of Cloverhill Prison, to have, in 2007, concluded an individualised unwritten contract with the Appellant to pay to him an ‘on call’ allowance equivalent to double that paid to all other doctors in the employment of the Respondent.

Mr Dowling stated that he held three or four very short ‘phone calls with the Appellant in early 2007. The Appellant had worked very satisfactorily as a locum in 2006 and had, at the conclusion of his locum term, asked the witness to call him ‘if anything comes up’. An unexpected vacancy occurred in very late 2006 and the witness stated that he felt it would be appropriate to advise the Appellant that a competition to fill a permanent vacancy would occur in the future. He advised the Appellant that, in the opinion of the witness, the Appellant stood a very good chance of being successful if he applied to fill that vacancy.

Mr Dowling stated that his recollection before the Court was that the ‘on call’ allowance for a prison doctor was never discussed in any ‘phone call with the Appellant.

He said that he was anxious to fill the vacancy which had arisen but was not desperate to do so. There were three hospitals within a mile of the prison. He said that if he had made an offer to double the allowance payable for ‘on call’ he would not have had authority to do so and that he would have documented any such event in full. He said he made no such offer or agreement with the Appellant.

He said that he did offer the Appellant an opportunity to return to the prison on the same terms as a permanent full-time doctor pending a competition to fill the vacancy and had secured authority to make that offer. He said that he could only offer the Appellant the same conditions as those that any other doctor enjoyed and could not have offered to double the ‘on-call allowance. He said that if the Appellant was facilitated with any terms or conditions of employment which exceeded those offered to permanent doctors such an agreement was not made by him. He said that he was not aware that the Appellant had been provided with any such terms of employment.

The witness said under cross examination that he could not recall doing a deal with the Appellant in relation to any arrangement outside the terms available to then existing permanent employees.

Michael Stenson

Mr Stenson said he has operational responsibility for payroll operations. He had no responsibility for such matters at the material time.

Mr Stenson said that his perusal and review of documents led him to conclude that an error had been made in bringing the Appellant onto payroll in 2007 and that this error was discovered and corrected in 2010 when payroll was being examined in the context of implementation of ‘FEMPI’ cuts.

Discussion and conclusion

The Appellant has submitted that the Court should accept that a decision of the EAT made under the Act in 2017 which addressed a complaint made by the Appellant has a significant bearing on the within matter.

That complaint to the EAT was founded on a dispute related to an alleged individualised contract in existence between the Appellant and the Respondent and certain matters contended to be incorporated into that contract. None of those matters related to a contention that the Act had been breached in any matter related to an on-call allowance. The Court concludes that the within complaint is a free-standing complaint under the Act and that the Court is obliged to address the matter by application of the law to the facts as far as they can be established. The Court cannot adopt the reasoning of the EAT in a case where no complaint under the Act as regards an on-call allowance was before that Tribunal.

The matter before the Court is not whether an individualised contract was agreed between the Appellant and the Respondent which provided for a range of terms and conditions of employment applicable only to the Appellant but rather whether any contractual arrangement can be established to exist which provided for a weekly payment in the amount of €199.36 such that this allowance formed an element of the wages properly payable to the Appellant during the cognisable period for the within complaint made on 31^st August 2020. The cognisable period for the within complaint is the period between 1^st March 2020 and 31^st August 2020.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Mac Grath J. said as follows:

• “The starting point is that the appellant was initially liable to be paid the amount stipulated in the written contract, and only became liable to be paid a lesser amount if there was some enforceable variation of that contract, whether by waiver, estoppel or agreement.”

The Appellant has given testimony to the effect that he agreed such a term in an individualised contract formed between the parties in 2007. The testimony of Mr Dowling on behalf of the Respondent is to the effect that no mention was ever made of an ‘on call’ allowance by him or the Appellant in three brief telephone conversations in 2007 and that, in any event, Mr Dowling had no authority at that time to offer the Appellant a weekly ‘on-call’ allowance of €199.36 instead of an amount equivalent to half that amount which was the allowance paid to all other doctors and was the amount specified in the 2004 template contract at the material time.

The Court has been provided in submission with a range of administrative documentation which is, in the main, undisputed. The Respondent submits that the documentation demonstrates that its payroll administration made an error in 2007 founded in an assumption that the Appellant was to be paid fortnightly in the manner of much of the staff of the Respondent rather than weekly as was the arrangement for the Appellant and colleague doctors. This, the Respondent submitted, resulted in the fortnightly amount of €199.36 being computed and applied to the weekly payroll payment to the Appellant.

The absence of any form of written contract between the parties providing for the payment of a weekly on-call allowance of €199.36 to the Appellant results in a broadly uncorroborated conflict of evidence between the Appellant and Mr Dowling as regards the content of this alleged element of three short ‘phone calls which occurred in 2007.

The Court has concluded that, based primarily on the absence of any submission or evidence to support the proposition that Mr Dowling was, at the material time, authorised to reach an agreement with the Appellant to pay to him an ‘on call’ allowance of twice the value paid to other doctors, the evidence of Mr Dowling is more likely to be true than the evidence of the Appellant as regards the existence of an agreement concluded over three ‘phone calls to make such an exception to standard terms and conditions which, for other doctors at least, appear to be rooted in a collectively agreed template contract concluded in 2004.

The Court has not been persuaded that the pressure resting upon the Respondent to secure the services of the Appellant was so great as to be greater than the pressure resting upon the respondent to secure medical services from other doctors.

The Court has concluded, on the balance of probability, that the Respondent has not been shown to have felt obliged to offer a significantly greater ‘on-call’ allowance than was paid to other doctors and that no unwritten individualised contract containing such a term came into existence in 2007. The Court accepts that the amount of ‘on call’ allowance paid weekly to the Appellant between 2007 and 2010 was incorrectly calculated in what amounted to a error of computation within the meaning of the Act at Section 5(6). The Court is fortified in its conclusion by the fact that no complaint of a breach of the Act having occurred in 2010 and after that in relation to an on-call allowance, was, according to the parties, made to the WRC by the Appellant until 2016.

In all the circumstances, the Court concludes, on the balance of probability, that the ‘on-call’ allowance properly payable to the Appellant during the cognisable period for the within complaint was €94.71 per week. The on-call allowance paid to the Appellant during the cognisable period for the within complaint was €94.71. Consequently, the Court cannot conclude that there was any difference between what was, within the meaning of the Act, properly payable to Appellant and what was actually paid to him at the material time. As a result of that conclusion, the Court concludes that no deduction was made from the wages properly payable to the Appellant at the material time and, consequently, the within appeal must fail.

Decision

For the reasons outlined above the Court decides that no unlawful deduction has been made from the wages properly payable to the Appellant. The within appeal fails.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
AR	______________________
28 July 2023	Chairman