FULL RECOMMENDATION
SECTION 28 (7), APPEAL OF COMPLIANCE NOTICE PARTIES : IRISH PRISON SERVICE - AND - WORKPLACE RELATIONS COMMISSION DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of Compliance Notice Reference No. CN:000066 issued by Workplace Relations Commission Inspector.
BACKGROUND:
2. A Workplace Relations Commission Inspector issued a Compliance Notice on the 23 November 2016. The Employer appealed the Compliance Notice to the Labour Court on the 13 December 2016. A Labour Court hearing took place on the 4 April 2017. The following is the Court’s Determination:
DETERMINATION:
This matter came before the Court as an appeal by the Irish Prison Service (the Appellant) against a Compliance Notice issued by the Workplace Relations Commission (the Respondent) in accordance with the Workplace Relations Act, 2015 (the Act) at Section 28(1).
The Compliance Notice was dated 23rdNovember 2016 and confirmed that an Inspector of the Respondent was of the opinion that the Appellant had contravened the Payment of Wages Act, 1991 (the Act of 1991) at Section 5(6)(a). The order required the Appellant to repay Mr E.F. (the ACO) the amount of €277.36.
The Facts
The alleged contravention of the Act of 1991 concerned the deduction of €277.36 from the wages of the ACO on 18thFebruary 2016.
The Appellant had issued a document dated 9thDecember 2015 to 153 staff who had taken self certified sick leave during a period referred to within the Prison Service as the ‘Christmas fortnight’ in 2014 and in two out of the three years 2011, 2012 and 2013. The ACO took self certified sick leave within the ‘Christmas fortnight’ in 2012, 2013 and 2014. The document of December 9th2016 advised all 153 persons that paid sick leave may not be available to them in the period from Christmas Eve to 2ndJanuary 2015. The document required all of the 153, if they were absent during the Christmas period and wished to have that absence deemed to be sick leave, to follow a specified procedure following their return to work beginning with a requirement to report in person to their HR Governor on their return to duty.
The ACO took a self certified sick leave day on 29thDecember 2015. The ACO did not report to his HR Governor on his return to duty. The ACO was paid in the normal way at that time. The Appellant however, deducted a day’s pay (€277.36) from the ACO on 18thFebruary 2016.
The Law
The Compliance Notice at issue before the Court stated that a contravention of the Act of 1991 at Section 5(6)(a) had occurred.
The Act of 1991 at Section 5(6)(a) provides in relevant part as follows
(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…
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.
- 28. (1) Where an inspector is satisfied that an employer has, in relation to any of his or her employees, contravened a provision to which this section applies, the inspector may serve a notice (in this section referred to as a “compliance notice”) on the employer.
- (a) state the grounds for the inspector’s being satisfied that there has been a contravention referred to in subsection (1),
(b) for the purpose of ensuring compliance by the employer concerned with any employment enactment, require the employer to do or refrain from doing such act or acts as is or are specified in the notice by such date as is so specified, and
(c) contain information regarding the bringing of an appeal under subsection (7) against the notice, including the manner in which an appeal shall be brought.
The within case is an appeal of a Compliance Notice. That Notice identified the Section of the Act which had been contravened as Section 5(6)(a). That Section of the Act identifies that where the wages that are paid to an employee is less than the amount that is properly payable to the employee then 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. The Notice gives no further detail as to the nature of the contravention alleged to have taken place.
A Compliance Notice issued in accordance with the Act at Section 28 must, in accordance with the Act at Section 28(2)(a), set out the grounds for the inspector being satisfied that there has been a contravention referred to in the Notice . The within Compliance Notice set out the grounds for its issuance as follows:
- “Section 24 SI 124 of 2014 states that the employer “may” pay for self certified periods of sick leave, however the deduction relating to Edward Farrelly was made based on the content of the letter issued to the prison of 9thDecember, 2015. Had he availed of sick leave at any other time of the year, he would not have been deducted as his sick leave was within the sick leave limits at the time.
While Employer states employee was contacted to collect the letter, the employee is adamant that he was not and did not know of the existence of the letter until after the deduction had been made.
Given that the Employer was deviating from the normal Sick Leave provisions the onus is on the employer to ensure that the employee was informed of the change to practice, this does not appear to have happened”
Position of the Appellant
The Appellant contends that the deduction which occurred on 18thFebruary 2016 was a deduction made for the purpose of reimbursement to the employer of an overpayment. The Appellant relies in that regard on the Act at Section 5(5).
The Appellant relies upon the document which issued on 9thDecember 2015 advising of procedures to be followed by those to whom it applied in the event that they wished an absence in the Christmas period of 2015 to be deemed a sick absence. The Appellant contends Statutory Instrument 124 of 2014 at Section 7 set out the conditions attaching to the payment of remuneration during a period of sick leave to Public Servants. That Statutory Instrument, at Section 7(2)(a)(ii) makes it a condition for payment of remuneration during a period of sick leave that an employee complies with any relevant circular. The Appellant contended that the document of 9thDecember 2015 was a relevant circular as defined in the Statutory Instrument at Section 7(4).
Two persons who were administrative staff of the Appellant in December 2015 stated in evidence that the document of 9thDecember was received in the Prison Office in December 2015 and that the normal methodology for alerting an ACO of the receipt of a document intended to be received by him or her was employed. Specifically, one administrative staff member stated in evidence that radio communication mechanisms were employed on 18thDecember and 23rdDecember 2015 to alert the ACO as to the fact of the document being in the office and available to him. That administrative staff member stated in evidence that this was a normal way to alert staff including ACO’s as to the fact that correspondence and other communications directed to them had been received in the Prison office. The second administrative staff member stated in evidence that the ACO had spoken to him in December 2015 and in that conversation the information as to the fact of the document being in the Prison office and directed to him was communicated directly to the ACO.
The Appellant submitted Section 7 of Statutory Instrument 124 of 2014 to the Court. That section of the Instrument provides as follows:
- 7. (1) Subject to Regulation 24, it shall be a condition for the payment of remuneration during a period of sick leave on a relevant person’s part that a medical practitioner certifies in writing that the person is unable to attend to his or her duties due to illness or injury.
(2) Notwithstanding satisfaction of the foregoing condition, it shall be a condition for the payment of remuneration during a period of sick leave on a relevant person’s part (or, in the case of subparagraph (b), for the continued payment of such remuneration)—
(a) that—
- (i) any initial representation or communication, by or on behalf of the person, to the administrator (concerning the person’s being unable to attend to duties due to illness or injury) appears to the administrator to be bona fide, and
- and
- (i) any subsequent representation or communication, by or on behalf of the person, to the administrator (concerning the person’s continued inability to attend to duties due to illness or injury) appears to the administrator to be bona fide, and
(ii) any relevant circular, in so far as it relates to that continued inability, is complied with.
- (i) any subsequent representation or communication, by or on behalf of the person, to the administrator (concerning the person’s continued inability to attend to duties due to illness or injury) appears to the administrator to be bona fide, and
- “bona fide”, in relation to a representation or communication, means in good faith and well founded in fact;
(a) disseminated or prepared by the relevant employer, or
- (b) disseminated or prepared by another public service body in respect of the relevant employer,
A Governor of the Appellant stated in evidence to the Court that, at a meeting in November 2016, the ACO had advised that the reason for his non-attendance at his employment on 29thDecember 2015 was that he had consumed an excess of alcohol at a family event on the previous night.
On the basis of this latter evidence the Appellant additionally contended that the ACO was not in fact sick on 29thDecember 2015 and consequently was not entitled to receive payment for the absence.
Position of the Respondent.
The Respondent contended that the inspector had been advised that the ACO had availed of self certified sick leave on 29thDecember and that no conversation or query arose on his return to work and when he gave the appropriate form to a member of the Detail office.
The Respondent stated that the inspector was advised by the ACO that a deduction from his wages occurred on 28thFebruary, 2016 without his prior knowledge and consent.
The Respondent stated that the inspector was advised by the ACO that he was not aware of special arrangements as regards the taking of sick leave at Christmas 2015 until he received an e-mail on 7thMarch 2016. The Respondent stated that the ACO obtained the document of 9thDecember 2015 on 30thMarch 2016 when he perused his personal file.
The ACO, appearing in evidence for the Respondent, stated that he had been unaware of the existence of the document of 9thDecember 2015 until March 2016. He stated in evidence that he was not contacted by the administrative staff of the Appellant in December 2016, that he had not spoken to an administrative staff member as regards the document of 9thDecember 2015 in December 2015 and he also refuted the evidence of a Governor of the Appellant that he had stated in November 2016 that the reason for his absence on 29thDecember 2015 was the consumption of an excessive quantity of alcohol on the previous night.
The Respondent contended that the document of 9thDecember 2015 was not a relevant circular as defined in Statutory Instrument 124 of 2014. The Respondent relied upon the decision of an Adjudication Officer of the Respondent (ADJ00002436) in that regard. The Respondent’s contention can be summarised as a contention that, the Statutory Instrument defining as it does a ‘Relevant Circular’ as a ‘circular or other document’ disseminated by the employer, the Court is obliged to confine the interpretation of ‘other document’ as limited to documents which are akin to a circular. The Respondent contended that the document of 9thDecember could not be so construed.
On the basis that the document of 9thDecember should not be considered to be a document as defined in the Statutory Instrument at section 7(4) the Respondent contended that the absence of 29thDecember 2015 was not an unauthorised absence and therefore fell to be considered in accordance with circulars applying to such absences at that time. The Respondent contended that the ACO was consequently entitled to avail of a self certified absence on 29thDecember and was entitled to be paid in respect of that absence. The Respondent consequently contended that the deduction of 18thDecember was unlawful within the meaning of the Act of 1991 at Section 5.
Discussion and Conclusions
The matter before the Court is an appeal of a Compliance Notice. That notice identified a contravention of the Act of 1991 at section 5(6)(a).
The Court has given detailed consideration to the Compliance Notice under appeal in the within matter. The Notice specifies that the Inspector was of the opinion that the Appellant had contravened the Act at Section 5(6)(a). Section 5(6)(a) as set out above is not a prohibitive Section of the Act of 1991. The Act of 1991 at Section 5 in effect prohibits the making of deductions from the wages of an employee by an employer other than in certain specified circumstances. The Act of 1991 at Section 5(6)(a) describes what shall be treated as a deduction. The sub-section is not prohibitive in nature and cannot properly be identified as a provision of the Act of 1991 which has been contravened.
The Court finds that the Compliance Notice is deficient in its identification of the contravention of the Act of 1991 as being a contravention of the Act of 1991 at Section 5(6)(a).
The Court has also considered that element of the Notice which sets out the grounds which caused the inspector to conclude that a contravention has occurred. That aspect of the Compliance Notice is part of the Compliance notice under appeal to the Court. The Grounds set out in the Notice amount to what the inspector considered to be a failure on the part of the Appellant to ensure that the ACO was informed of a change to practice as regards normal sick leave provisions.
The Court is unable to associate this alleged failing on the part of the Appellant with the Act at section 5(6)(a) and thus to understand how the grounds set out could rationally lead the inspector to be satisfied that a contravention of that Section of the Act of 1991 had occurred.
The Court finds that the Compliance Notice is deficient in setting out the grounds for the inspector being satisfied that a contravention of the Act of 1991 at Section 5(6)(a) has occurred.
The Court has found that the Compliance Notice dated 23rdNovember, 2016 is deficient in two significant respects. The Court therefore finds that the Compliance Notice should be withdrawn.
Determination.
The Court, in accordance with the Act at Section 28(10)(b), withdraws the Compliance Notice dated 23rdNovember.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
LS______________________
19 May 2017Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.