PWD237

1. Appeal of Adjudication Officer Decision No(S) ADJ-00036611, CA-00047802-003

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 30 May 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-

DETERMINATION:

This is an appeal by the Liam O’ Grady against Adjudication officer’s Decision ADJ-00036611 given under the Payment of Wages Act 1991 in a claim against ESB Networks that he suffered an unlawful deduction from his wages. The Adjudication Officer found the complaint was not well founded.

In this Determination the parties are referred to as they were at first instance. Hence ESB Networks is referred to as ‘the Respondent’ and Mr Liam O’ Grady as ‘the Complainant’. The complaint was lodged with the WRC on the 21^st December 2021 and therefore the cognisable period as defined by the Act is the 22^nd June 2021 to 21^st December 2021. This case is linked to CD/23/43 and TE/23/9

Background

The Complainant is employed as a Network Technician. The Respondent introduced a new payroll system which required the Complainant submit his overtime and other claims through the new online system (MyTime app). The Complainant continued to submit his claims manually which resulted in a delay in payments being made.

Summary of Complainants case

Mr Keenan representative for the Complainant submitted that the Complainant’s Union was excluded from negotiations leading to a collective agreement, part of which required staff to use an Online Web Application for claiming payments such as overtime and allowances. It did not affect the payment of basic salary.

He submitted that the Complainant was following a Union instruction not to use the Online Web Application. Instead, the Complainant continued to submit his claims in the traditional manner involving paper timesheets. It is the Complainant’s submission that he was sanctioned by the Respondent for adopting this stance by not having his claims processed in a timely manner and that the delay in making the payments was deliberate.

The Complainant raised a formal grievance about the delay in receiving his payments which he submits was the Respondent deliberately with holding payments that were properly payable to him. It is his submission that during the cognisable period none of the payments that were properly payable to him, were made. They were all made at a later stage. This delay in payment, is contrary to section 5 (6) of the payment wages of Act, which notes that unless the non- payment on the occasion that the payment falls due is attributable to an error of computation then failure to pay is a breach of the Act.

The Representative for the Complainant also submitted that it was their position that the Court was not restricted to just considering the breaches within the cognisable period. The Court should be able to look forward, and by using a purposeful approach to the interpretation of the Act, the Court could consider breaches that occurred after the complaint had been submitted. Any such breaches should be taken into consideration in deciding on any award that may fall due.

Summary of Respondent’s case

The Complainant is a member of the IWU which is not a member of the ESB’s recognised Group of Union’s. In 2019 the Respondent started the introduction of a time recording application (MyTime) to replace a paper-based timesheet scanning system. The previous system whereby time sheets were completed manually then scanned and uploaded was becoming obsolete. The My Time is an App on the worker’s phone and allows the employee to claim non base payments in a speedy manner. The issues in this case are only in respect of non-base payment. There was no delay to the payment of basic wages.

It was agreed with the ESB group of Unions that the My Time app would be implemented for NT’s commencing September 2020. The initial timeline was deferred, and it was the end of 2021 before all staff were migrated on to the app.

In October 2021 the Respondent circulated a briefing note in respect of the phasing out of time sheets from October 2021. By letter of 2^nd November 2021 the Respondent was informed by the IWU that all their members who were using the MyTime App would cease using it and revert to paper timesheets with effect from 5^th November 2021. The Complainant had been activated on the My Time App but chose not to use it.

By letter of the 5th November 2021 to the IWU, the Respondent set out that the use of the My Time App had not arisen from the recent collective agreement that they had issues with, but in fact predated that. It set out that the scanning technology they had previously used to process timesheets was now obsolete and could not be supported by the IT system and therefore had to be replaced. The letter went on to say that there was no facility for Worker’s to revert back to the paper base system, and that if worker’s chose to do that, it would inevitably lead to delay in processing their payments.

By letter of 12^th November 2021 the IWU advised that the refusal to migrate to the digital system was not an instruction from the IWU and was not industrial action.

The applicable law

Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section 5(6) states,

• “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

Both parties agreed that the relevant case law was set out in Marek Balan’s v Tesco Limited [2020] 31 E.L.R.125 where it was held that “when considering whether a deduction from wages has been lawfully made, the concept of wages properly payable is central to the Court’s analysis.”

In this case it is not disputed that the payments were properly payable to the Complainant and were in fact made at a later date. Therefore, the next issue that falls for consideration is whether there was a deduction by the Respondent during the cognisable period. Neither was it disputed that overtime falls to be paid after the overtime is worked. In the case to hand there was a delay in the making of that payment.

It is clear to the Court, based on the submissions both written and oral, that the delay in payment, arose from a decision by the Complainant to revert to a paper-based system, rather than using the new digital system. In the letter of 5th November 2021 to the Complainant’s Union, it was clearly spelt out that a decision to submit paper-based claims when a person had been activated on the My Time app would inevitably lead to a delay in processing claims, which is what occurred in this case. The Court finds that there was a delay in making the payment, but that the delay stemmed from the Complainant’s decision not to use the digital format available to him, but to use the paper- based process. Therefore, the Court determines that no deduction, contrary to the Act, occurred during the cognisable period.

Determination

The Court determines that no contravention of the Act occurred during the cognisable period. The appeal fails and the decision of the Adjudication Officer is upheld.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CO'R	______________________
5 July 2023	Deputy Chairman