ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00010853
William Quigley Unite the Union
Judy McNamara IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005
Date of Adjudication Hearing: 14/09/2018
Workplace Relations Commission Adjudication Officer: Jim Dolan
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The Complainant is an underground miner employed by the Respondent. The Complainant is one of five employees who has made a complaint to the Workplace Relations Commission (WRC). In total there are 151 employees with similar complaints.
In April 2017 the Complainant reported for work and then refused to commence work due to the introduction of a new underground Emergency First Responder System in place of the Ambulance Service that had been in place for several years.
Preliminary Issue – raised by Respondent
At the outset, the respondent requests the Adjudicator to adjudicate on a preliminary issue. The claimants seek to rely on the same set of facts under the Acts detailed above, and the redress sought by the claimants under these Acts is the payment of wages for the shifts that were not worked. Put simply, the same set of facts is relied upon and the same redress is sough under all three Acts. The respondent submits that the claimants must nominate one of the above Acts only to progress their claims. Moreover, under the Payment of Wages Act (1991 as amended) the claimants are actually prevented from bringing parallel claims on the same set of facts. This Act states:
“(a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.
(b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection”
As such, an Adjudication Officer cannot hear the three claims anyway and to commence hearing the Payment of Wages claim is to prevent the Adjudication Officer from hearing either of the other claims so the claimants must choose under which Act the claim is to be heard.
This principle of preventing the duplication of or hearing of parallel claims is upheld in dismissal legislation. For example, when dealing with discriminatory dismissal under the Employment Equality Acts and unfair dismissal under the Unfair Dismissals Acts, a claimant is forced to choose under which piece of legislation s/he will progress his claim. The claim cannot be progressed under both.
Further, there are principles set out in case law relating to parallel claims. Employment Rights Ireland [https://employmentrightsireland.com/duplication-or-parallel-proceedings-can-employment-litigation-drag-on-forever-in-different-venues/] (Appendix 2) details some of the case law in this area. The 1843 case, Henderson v Henderson, gives the common law rule ‘that there should be finality in litigation and that a party should not be twice vexed in the same matter’. Similarly, in Woodhouse v Consignia PLC  1 WLR 2558it was stated:
“The rationale for the rule in Henderson v Henderson (1843) 3 Hare 100 that, in the absence of special circumstances, ... a defendant should not be oppressed by successive suits when one would do.”
In an Irish context, Cunningham -v- Intel Ireland Ltd  IEHC 207 is an important decision of the High Court which dealt with the duplication of or parallel proceedings. In his judgement, Judge Hedigan stated:
“Thus, all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances. This is a rule that is of benefit to both plaintiffs and defendants, to the courts themselves and thus to the public interest.”
In the instant cases, the respondent is not seeking to disbar the proceedings. The respondent is simply seeking to combine the issues into a single claim under one of the Acts under which the claimants are pursuing their claims to avoid the legal uncertainty in respect of parallel proceedings arising out of the same set of facts and where the same remedy is sought.
This preliminary issue will be addressed in Findings and Conclusions.
Summary of Complainant’s Case:
1. For a great number of years, the underground Ambulance Service was provided by the underground workshop personnel and the ambulance bay was always and still is located close by the underground workshops. There was always workshop personnel present during the duration of the shift, guaranteed.
2. The Emergency Phone is located in the workshop shift foreman’s office (2270) where he is always present, which also has a very distinctive bell that rings throughout the Workshop. When this bell is heard, it instantly puts all personnel on alert to an emergency situation and a response team quickly gathers to deal with whatever situation may lie ahead.
3. Most of the crews that man the 1140 + 750 workshops have voluntarily put themselves forward providing a flawless service to the Mine. This includes training with a Red Cross Healthcare Professional twice a year by using both classroom activities and real-life simulation, they also have to keep their certs updated annually. The Dundalk/Kildare Fire Services they also train in extraction and stabilisation of casualties. They also are trained in the use of Hydraulic Cutting and Spreading Gear which is kept with the ambulance in the workshop.
1. The company were looking to change the system that had been in the Mine for 35 years, a system that had served the Mine extremely well to an Emergency First Responder Led System. Consultations on safety improvements had been ongoing since 2014 between management and worker’s representative in the lead up to the unilateral implementation date without agreement.
2. The full-time safety representative was in communication with management up to the events of 3rd April 2017. On the 2nd April he looked for a stay on the implementation of the new arrangements to allow time to brief all four shifts on the outcome of a meeting held on Friday 31st March 2017.
3. The Management pressed ahead with the implementation without agreement. All claimants turned up for work however they were prevented from going underground by management’s refusal to let status quo remain in place.
4. A senior inspector from the Health and Safety Authority recommended the following:
1) That adequate resources be given to the upgrade and maintenance of the mine underground communication system to improve its reliability.
2) To enhance the proposed system the company should establish a system to locate an ambulance at 750 level for immediate dispatch and operated during all working shifts.
3) In the long term the mine should ensure that an ambulance service is available for dispatch and operation from an appropriate location at the mine during all working shifts.
This proposal was put to management who agreed to implement the recommendations allowing all claimants to go to work safely.
1) Payment of Wage Act 1991 as amended.
The Definition of Wages under the Act is as follows:
“wages” in relation to an employee, 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.
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 of it.
2) An employer shall not make a deduction from the wages of an employee in respect of-
a) Any act or omission of the employee, or
b) Any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment
We can clearly state here today that our members did not give consent in writing or otherwise to make a deduction from their wages, which is a requirement in 5 c) above.
Should the employer claim that they had a legitimate reason to make a deduction (which is denied) each employee should have been informed in writing in accordance with 5 (2) (iv) the particulars of the legitimate reason and the amount of the deduction. This amount should have been informed to each employee.
The relevant part of section 5 2) (iv) states:
“in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction ….”
We can confirm here today that no such notice in writing was given to any of the claimants.
Safety, Health and Welfare at Work Act 2005 as amended
1) Section 27 of the Safety, Health and Welfare at Work Act 2005 (SHWWA) provides for protection against penalisation.
27. – (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect of any term or condition of his or her employment.
Section 2 states Without prejudice to the generality of suspension (1), penalisation includes at subsection (d) imposition of any discipline, reprimand and other penalty (including financial penalty) ….
The refusal of management to pay the members breached this provision.
Section 3 of this section goes on to state the following:
An employer shall not penalise or threaten penalisation against an employee for –
a) Acting in compliance with the relevant statutory provisions.
b) Performing any duty or exercising any right under the relevant statutory provisions
c) Making a complaint or representation to his or her safety representative or employer or the Authority as regards any matter relating to safety, health or welfare at work.
All of the members would have made representations to the safety representatives and employer and the Authority would have been made aware of the concerns.
d) Giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions.
e) Being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or
f) Subject to subsection (6) in circumstances of danger, which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
g) For the purposes of subjection (3) (f) in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.
It is clear from the language of this section that in order to make out a complaint of penalization it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This issue we clearly raised as a health and safety matter and the penalisation suffered by the Claimants was as a result of a possible imminent risk to their safety and health.
The redress being sought:
Payment of Wages breach of 5 (2) (iv)
In Hogan v HSE PW70/2012 the Tribunal considered the award to the employee as follows:
“The final matter for consideration is the issue of an award to be made by the Tribunal to the appellant. The Tribunal has given this matter considerable thought and agrees with the appellant’s assertion that there is no provision in the legislation which obliges the Tribunal to limit any award to the difference between what was paid and what should have been paid. In those circumstances, the Tribunal makes the following award in respect of the appellant’s claim in respect of the period from June 2009 to September 2009 an amount of €37989.00 and from December 2009 to January 2010 an amount of €61887.00.”
Therefore, we are respectfully requesting that each claimant be awarded a full week’s remuneration for the breach of and or the unlawful deduction as a deterrent to this employer for breach of the Act.
Safety, Health and Safety at Work Act 2005 – Penalisation
13. (1) An employee shall, while at work –
h) report to his or her employer or any other appropriate person, as soon as practicable –
(i) any work being carried on, or likely to be carried on, in a manner which may endanger the safety, health or welfare at work of the employee or that of any other person.
(ii) any defect in the place of work, the systems of work, any article or substance which might endanger the safety, health or welfare at work of the employee or that of any other person, or
(iii) any contravention of the relevant statutory provisions which may endanger the safety, health and welfare at work of the employee or that of any other person, of which he or she is aware.
The travel distance to surface is 30 /40 minutes which places a greater importance on the ambulance being 100% reliable. The removal of the Ambulance was in the view of the Claimants a defect in the place of work. The working environment for underground workers who are working alone for long periods every shift, emergency systems are crucial in a mine much different than other employments.
In Stobart Ireland Driver Services Limited v Keith Carroll the Court considered what amounted to an infringement of Section 27 (3) of the Act and found:
“While the Court takes the view that tiredness may not in itself be an appropriate excuse for seeking to be relieved from duty, in the circumstances here present, where drivers were rostered on a day to day basis and where accommodation had been granted in the past in similar circumstances, the Court is satisfied that the Complainant’s notification to Management of his tiredness following the number of hours he had been on duty within the period from Sunday evening to Thursday morning, can come within the parameters of acting in compliance with the relevant statutory provisions as provided under Section 27 (3)(a). This is particularly so where the Complainant is the driver of a heavy goods vehicle.”
In the case before you were we firmly believe that the Claimants concerns are similar in nature and therefore is an infringement of Section 27 (3) (a) of the Act are seeking compensation that is just and equitable in the circumstances.
Furthermore, when considering what is just and equitable we would ask you to consider the principles in Colson Kamann v Land Nordrhein-Westfalen  ECR 1891 in DWT0940 where the Labour Court stated the following:
Under the principles laid down by the ECJ in the case of “Van Colson Kamann v Land Nordrhein-Westfalen  ECR 1891, where an individual right is infringed the judicial redress provided should not only compensate for the claimant’s economic loss but must provide a real deterrent against future infractions.
In the High Court Birmingham J looked at the use of the “Van Colson” principles in the case of Piotr Bryszewski v Fitzpatricks and Hanleys Limited Trading as Caterway & Anor. (Record No. 2013/154 M.C.A.). Birmingham J found that he Court’s use of this principle was measured and correct.
We are seeking compensation that is just and equitable for the infringements to the Claimants individual rights this should not only compensate adequately for economic loss sustained but must provide a real deterrent against future infractions.
Industrial Relations Act
Finally, the matter is also before you under the Industrial Relations Act on behalf of the Claimants. The primary rationale for this is the issue in question namely the removal of the Ambulance before agreement was avoidable, however the Company’s unilateral decision to impose this change brought these underground workers to the edge.
The working environment Under Ground workers are working alone for long periods every shift. (Emergency Systems are crucial in a mine different than any other employment). The mine set for workers and their families when they leave home is very important. The travel distance to surface is 30 / 40 minutes which places a greater importance on knowing the ambulance service must be 100% reliable. It takes two sides to reach an agreement in this scenario one of the sides walked away from the table and acted unilaterally.
Adjudicator, we are seeking:
1. An award under the Payment of Wages Act for breach/s of section 5 of the Act of the avoidance of doubt we are seeking a full week’s wage for the period for each Claimant.
2. An award under the Safety, Health and Welfare at Work Act that is just and equitable in the circumstances.
3. When considering the awards, we ask you to consider the principles of Van Colson and provide a real deterrent against future infractions.
4. A recommendation that the Company use and exhaust the Industrial Relations mechanisms to avoid a recurrence of this situation.
Summary of Respondent’s Case:
Background Facts of the Dispute
1 The respondent has a 24/7 operation within its mine. The Mines Act 1965 and the Safety, Health and Welfare at Work Act 2005 require all Mines to have arrangements in place to provide rescue and first aid facilities should the need arise. As it could take an hour or more to emerge from the deepest areas of the mine the importance of good quality pre-hospital emergency care services is paramount to reduce mortality and morbidity following an accident or sudden illness.
2 The Pre-Hospital Emergency Care Council (PHECC) is a statutory organisation with responsibility for education, training and operational standards for the provision of pre-hospital emergency care in Ireland (excl. HSE). The standards are voluntary standards for all agencies that provide pre-hospital emergency care but have been adopted as the norm for all private, statutory, and voluntary ambulance services.
3 In July 2014, the respondent’s Environmental Health & Safety (EHS) Manager invited PHECC to the Mine to view the pre-hospital emergency care services in place and make recommendations based on the PHECC standards. At that time, the respondent had the following infrastructure in place for emergency response:
3.1 Over 180 employees trained to occupational first aider level;
3.2 22 employees trained to Mine Rescue standard;
3.3 5 employees called ambulance crew trained to Occupational first aider level with added training for certain aid (not in line with the PHECC guidelines);
3.4 Underground ambulance parked at 750 & 1140 Workshops.
4 Following the inspection of the Pre-Hospital Emergency Care Council to review the system of emergency response, they issued a report with recommendations. The respondent reviewed the findings of the Report with the Mine Safety Committee. It was decided to implement the recommendations of this Report including the introduction of an Emergency First Responder (EFR) led system – it being viewed as a necessary enhancement to the existing emergency response system outlined above. PHECC had identified that the EFR approach would be much safer due to the significantly higher level of training and competence of the personnel involved in dealing with medical emergencies. One of the key recommendations in their report advised that there should be two EFR personnel on duty in the mine at all times and that they should be mobile.
5 In September 2014, the Mine Safety Committee decided to set-up a sub-committee to look at the project of implementing the recommendation of the PHECC, specifically the introduction of the Emergency First Responder led system. This sub-committee met 15 times and gave updates on progress to the Mine Safety Committee during the 2 years lead-time.
6 Over the next couple of years the Company set about making the recommended changes, purchasing equipment and interviewing, selecting and training the new EFR personnel. The value of the works undertaken during the 2 years amounted to €1.5M. By any standards this was a significant investment in safety. This included:
6.1 Certification of the company’s training provider to be certified by PHECC to train employees to the standard required;
6.2 Trained 35 employees to Emergency First Responder Level;
6.3 Purchased 3 purpose-built fully kitted vehicles for emergency first response use;
6.4 Improved radio communication in the mine with the installation of 12 radio repeaters and the installation of over 5Km of radio cable;
6.5 Purchase 180 hand-held digital/analogue radios;
6.6 Upgraded the radio system software;
6.7 Installed personal tracking system- to locate persons in the event of an emergency.
7 In addition to the above some, system changes were implemented such as risk assessing the new system and the control of medical incidents being transferred to Mine Operations Control (MOC). In September 2015, in an organisational restructuring, craft personnel manning the workshop at the 1140 level were taken off night shift. This change happened in the usual manner having first being negotiated with union representatives. Basically, two craft workers were manning the craft workshop on overtime at night in case the ambulance was needed. Now that mobile EFRs were in place and operating out in the Mine, the ambulance was just a back-up. The 1140 workshop, outside which the ambulance was parked, continued to be manned on days as before. However, the craft workers from the outset were opposed to their 2 fellow workers being redeployed off the night shift. This was reflected in pressure being brought to bear on individual workers to the effect that they were not to cooperate with the introduction of the new system.
8 In October 2016, the Company EHS Manager presented to the Mine Safety Committee that the Company was in a position to switch over to the EFR led system. However, the Safety Representative expressed concerns around the system stating that the system needed more testing and that the radio system wasn’t reliable enough. The Company agreed to defer implementation pending more communication on how the system worked including the benefits and the requirement to implement the enhancement system.
9 In November 2016, the Company held several meetings with the full-time Safety Representative and part-time Safety Representatives and developed a plan to address all and any concerns. During January 2017, the outstanding issues were discussed at length at the Mine Safety Committee. Subsequently, the full-time Safety Rep. informed the company that he was agreed that the system could be implemented on a trial basis.
10 Having allowed the time for test and trial of the system and the Company communicated that the system would be implemented on 3rd Feb 2017. The Safety department held communication sessions with the 3rd Feb night shift and outlined the risk assessment for the implementation. However, the Night shift refused to go into the mine until the 1140 Workshop was manned. An Agreement was reached with a union official that two employees, one being an EFR, would man the 1140 Workshop temporarily. The Night Shift returned to work.
11 Thereafter, the EHS Manager, the Mine Safety Officer and the Mine Rescue Officer drew up a formal risk assessment together with the full-time Safety Representative to implement the system with support of the Safety department working night shift to cover in the event of any issues arising. A number of communication sessions were held with all employees on the 4 shifts in groups of 50-70. The respondent outlined the risk assessment and the planned control to support the system. A number of trials were run where the enhancement was extremely successful; one of these trials was undertaken by the safety representatives themselves with extremely good results – the enhanced system performed as designed. In March, the trial system was implemented with the controls in place and a number of incidents were dealt with by the Emergency First Responders in the field.
12 The Mine Safety Committee would not agree to the full implementation of the EFR led system at its meeting on 23rd February. They referred the matter to the Implementation Review Committee of the Steering Group (IRFSG)– joint management union group. Following 2 subsequent meetings, the Steering Group agreed to the implementation under review on 3rd April 2017. The Company communicated with the full-time Safety Representative that it wanted to implement the system in full. The formal Risk Assessment was updated to implement the system with controls in place and this was communicated to the employees’ Safety Representatives. Then Mine department employees were updated by the General Manager via correspondence on 23rd March 2017 about the implementation date of 3rd April and the procedures to be followed in the event of a medical emergency. The full-time Safety Representative referred the matter to the Health and Safety Authority. A Health and Safety Inspector came to site on 30th March and reviewed the proposed EFR led system. In conversation with the EHS Manager and the Safety Representative, he stated that the Company could implement the system. He expressed his opinion to the Safety Manager and the full-time Safety Representative that the system in the Respondent Mine was far better than those in other mines.
13 The Safety team met with each on-coming night shift on 3rd April 2017 to communicate the updated Risk Assessment. The employees refused to enter the mine. Five subsequent shifts were lost due to this unofficial industrial action. On Tuesday 4th April, the General Manager, the HR Manager and the EHS Manager met with a SIPTU official and the Safety Representatives. The Company requested that the Union desist from taking further industrial action while the Union argued that it was a safety issue. There was no resolution at this meeting.
14 The Respondent referred the issue to the WRC and a meeting was held on Thursday 6th April. The WRC advised the Company to obtain the help of the Health and Safety Authority again. On 7th April, a Senior Health and Safety Authority Inspector conducted a review and found that the new EFR system was an enhancement on the original system and it met the Company’s statutory obligations. In the context of resolving the dispute, he made 3 Recommendations, one of which was to locate an ambulance at the 750 Level for immediate dispatch and operated during all working shifts. Management and the Safety Representatives met to discuss the Recommendations and agree their implementation. They agreed that the EFR and ambulance were to dispatch simultaneously. The Supervisors had responsibility for dispatching the ambulance from the 750 level. The Company communicated the revised Risk Assessment to the on-coming shift on Friday 7th April and the mine returned to full operation after midnight.
15 On 21st April 2017, in a letter to the General Manager, Mr. JR SIPTU expressed his disappointment that the company were refusing to pay wages for the ‘six-day Sit-in for health and safety reasons’. Mr. JR stated that the solution proposed by the senior Health and Safety Inspector had already been proposed by the safety representatives. By reply on 3rd May, the General Manager refused to pay wages lost due to the Sit-in disagreeing with Mr. JR’s arguments.
16 On 19th September 2017, SIPTU submitted a joint claim for all 110 of its members under the three Acts detailed in the Introduction above, but most of the individuals named, including the five claimants here today, had submitted their claims with WRC before that date. At a ‘mediation’ conference on 2nd November 2017, the parties had discussions with a view to resolving all outstanding issues relating to the Sit-in, but no resolution was forthcoming through the mediation process. Subsequently, Mr.BMcG, the WRC Mediator, wrote to the parties on 18th January 2018 and proposed that 5 test cases go forward to adjudication and that all 151 individuals would be bound by the outcome of the 5 test cases. The parties confirmed their agreement to this proposal.
Company Arguments (without prejudice to the Preliminary Argument)
Payment of Wages Claim
1 The respondent submits that the Adjudication Officer does not have jurisdiction to deal with the complaint made under the Payment of Wages Act (1991). The respondent submits that in the first instance that wages were not properly payable to the claimants from the beginning of their withdrawal of labour on the evening of 3 April 2017 until the claimants’ recommenced work on 7 April 2017. Section 5 (6) of the above Act states:
(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.
2 The claimants, in consequence of their participation in the Sit-in, in effect, withdrew from their contractual agreement to supply labour. As such, the issue of a deduction from wages within the meaning of this Act cannot arise. The claimants performed none of their duties between the time periods outlined above as by their own admission; they were engaged in a Sit-in
3 In Section 1.— Interpretation, of the Act at Section 1(1) “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment … payable under his contract of employment or otherwise”. This definition of wages “means any sums payable by the employer in connection with his employment …” and that that such “wages” are sums payable to the employee by the employer in connection with his employment and “payable under his contract of employment or otherwise” are undisputed. However, section 1 (1) clarifies that a ‘Contract of employment’ “means— a) a contract of service or of apprenticeship, and (b) any other contract whereby an individual agrees with another person to do or perform personally any work or service…”. The respondent argues that ‘wages’ or sums payable under a ‘Contract of employment’ are only payable on performance of such work or service. As such it is implausible to argue that a reduction in hours ‘pre- factum’ or before the fact where no such hours are available and no such performance of work or service is required could rightly be considered ‘a deduction from the wages of an employee’. It cannot be possible to deduct from that which does not exist. The deduction from the wages of an employee must be a deduction post factum, after the fact or once they have “performed personally work” or service for the employer and the wages rightly payable on completion of the work or service for the employer are not then paid by the employer.
4 The Respondent further draws the attention of the Adjudicator to the reference by Smithwick P. (Appendix 8) in O’Donovan v Allied Irish Banks plc 9 ELR 209 to judgements of the House of Lords and the speech of Lord Brightman in Miles v Wakefield Metropolitan District Council 1 AC 539, where he said at 552:
“I agree that the plaintiff's action was rightly dismissed by the trial judge. It was rightly dismissed because in an action by an employee to recover his pay it must be proved or admitted that the employee worked or was willing to work in accordance with his contract of employment, or that such service as was given by the employee, if falling short of his contractual obligations, was accepted by the employer as a sufficient performance of his contract
5 In the instant case the claimants weren’t willing to work in accordance with their contract of employment. It is submitted that it is common case that the 5 claimants here today withdrew their labour and refused to work for the period in question. These claimants may very well argue that this was because of a safety issue and that the respondent has obligations under the contract of employment to ensure that the workplace is safe and free of imminent danger. This argument will be addressed in more detail later when dealing with the claims relating to penalisation under the Safety, Health and Welfare at Work Act (2005). However, suffice to say, that the respondent was introducing a safer, more effective system of pre-hospital care in the event of a medical emergency. Furthermore, a Health and Safety Inspector had visited the plant and reviewed the system just 3 days beforehand and deemed the system to be better than what many mines had in place and was in compliance with statutory requirements. Therefore, there existed no basis for any of the claimants to argue that they were willing to work in accordance with the contract of employment but were prevented from doing so because the respondent was in breach of its statutory obligations or in breach of any express or implied term relating to safety under the contract of employment.
6 For the reasons set out above, the respondent respectfully submits that the Adjudicator has no jurisdiction under this Act as no deduction from wages was made by the respondent that was properly payable to the claimants. As such this complaint should be dismissed in its entirety. The monies claimed are not properly due as no such no deduction has arisen within the meaning of the Payment of Wages Act, 1991.
7 Without prejudice to the above argument, the respondent submits in the alternative that any deduction of wages (which is denied), if such is found to have taken place, was lawful under this Act having regard to Section 5 (5) which states as follows:
“Nothing in this section applies to—
(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action,”
8 The respondent submits that if any deduction is found to have taken place (which is denied), such deductions were made by the respondent on account of the claimants having taken part in industrial action / strike. The Industrial Relations Act (1990) in section 8 sets out the statutory definition of both ‘industrial action’ and strike action as follows:
“In this Part, save where the context otherwise requires—
“industrial action” means any action which affects, or is likely to affect, the terms or conditions, whether express or implied, of a contract and which is taken by any number or body of workers acting in combination or under a common understanding as a means of compelling their employer, or to aid other workers in compelling their employer, to accept or not to accept terms or conditions of or affecting employment;
“strike” means a cessation of work by any number or body of workers acting in combination or a concerted refusal or a refusal under a common understanding of any number of workers to continue to work for their employer done as a means of compelling their employer, or to aid other workers in compelling their employer, to accept or not to accept terms or conditions of or affecting employment.”
9 The respondent submits that the above statutory definitions leave little room for interpretation. The term ‘Sit-in’ is generally accepted (Wikipedia, CWU, LK Shields) to come within the definition of both industrial action and strike action. In the instant case, the claimants came to work at the beginning of each of their shifts on each of the days in question. However, they performed no work, but instead took unauthorised, illegal, unofficial industrial action by occupying the respondent’s premises. Such action constituted a ‘cessation of work’ where the claimants acted ‘under a common understanding’ to compel their employer ‘not to accept terms and conditions of or affecting their employment’.
10 In summary, it is the respondent’s view that even if a deduction occurred (which is denied), the claimants are statute barred from receiving wages under section 5 (5) (e) of the Act due to the fact that they engaged in a Sit-in; a form of action precluded from payment under said section.
Safety, Health and Welfare at Work Act (2005) Claim [SHWW Act]
1 The respondent refutes entirely the notion that it penalised the claimants for any alleged action taken by the claimants under section 27 (3) of the SHWW Act. Notwithstanding any arguments put forward hereafter, the respondent submits that if the Adjudicator finds the respondent made a lawful deduction under Payment of Wages legislation because the claimants were engaged in industrial action / strike; then, the respondent cannot be held to have penalised the claimants under the SHWW Act – where such penalisation is defined as the non-payment of wages. In such circumstances, the respondent’s decision in refusing to pay wages to employees engaged in industrial action is a statutory entitlement under payment of wages legislation.
2 Without prejudice to the above argument, the respondent submits that no penalisation occurred within the meaning of section 27 of the SHWW Act. In said section the Act sets out the provision applying to penalisation as follows:
“(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.
(2) Without prejudice to the generality of subsection (1), penalisation includes—
(a) suspension, lay-off or dismissal ... or the threat of suspension, lay-off or dismissal,
(b) demotion or loss of opportunity for promotion,
(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,
(d) imposition of any discipline, reprimand or other penalty (including a financial penalty),
(e) coercion or intimidation.
(3) An employer shall not penalise or threaten penalisation against an employee for—
(a) acting in compliance with the relevant statutory provisions,
(b) performing any duty or exercising any right under the relevant statutory provisions,
(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,
(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.
(6) For the purposes of subsection (3) (f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.
3 The respondent submits that no grounds exist for acts of penalisation under the SHWW Act. The alleged grounds cannot include those set out at s.27 (2) (a), (b), (d) and (e) as there was no suspension, lay-off, dismissal or the threat of same. There were no demotions or loss of opportunities for promotions. There was no transfer of duties, change of location or place of work or changes made in working hours. No coercion, intimidation occurred and no discipline, reprimand or penalty was imposed. In fact, the claimants currently work in the same place, performing the same work role at the same rate of pay as they did before 3 April 2017. The claimants have recorded on their WRC application form that they were penalised by the respondent by having their wages deducted for ‘disputing a unilateral decision by management to change health and safety procedures’. They seek to rely on s.27 (2) (c) ‘reduction in wages’ as the act of penalisation. The respondent rejects this argument in its entirety.
4 It is a matter of record that the respondent spent over two years and €1.5M in significantly improving a pre-hospital medical emergency system on foot of a Report from PHECC, a statutory Agency. This Report detailed statutory deficiencies in the existing medical emergency system. The respondent made 3 attempts to introduce the new EFR led system but each time a ‘problem’ was highlighted with its introduction mainly to do with communication, and each time the respondent addressed all issues. Even a Health & Safety Inspector from the HSA deemed the new system to be an improvement that met statutory obligations. It is somewhat ironic that having made such strenuous efforts to improve the pre-hospital medical emergency system that the respondent stands accused of penalising its employees when they engaged in a Sit-in. Adjudicator, the only issue that the respondent can justifiably be charged with here today is implementing the SHWW Act, the preamble to which includes the making of ‘provision for securing the safety, health and welfare of persons at work and for the enforcement of the relevant statutory provisions’. It is submitted that the respondent has carried out this responsibility faithfully.
5 Furthermore, the decision to introduce the new EFR led system had already been made at the Steering Group where representatives of the employees participate. The respondent, on the basis of the above arguments, rejects the claimants’ assertion that management made a unilateral decision. On the contrary this decision had been discussed inside the operation with all decision-making forums and also discussed with HSA Inspector prior to implementation.
6 The respondent argues that the Adjudicator’s jurisdiction to hear penalisation claims under the SHWW Act is subject to the explicit parameters of Section 27 of the Act. Section 27 (3) of the SHWW Act does not provide protection to employees engaged in a Sit-in. The issues raised by the claimants were repeatedly addressed and there was no imminent threat to the health and safety of workers on the evening of 3 April. It is the respondent’s view that the actions taken by the claimants between 3 April to 7 April are not ‘protected’ acts and do not come within the remit of section 27 (3) of the SHWW Act.
7 However, should the Adjudicator find that the claimants’ actions come within the meaning of section 27 (3) of the Act, the respondent submits that no penalisation occurred anyway as legislated for under the SHWW Act. The respondent draws the Adjudicator’s attention to the Labour Court’s viewpoint in Patrick Kelly t/a Western Insulation v Girdzius, HSD081 (Appendix 9) Therein the Court stated that:
“It is clear from a plain reading of subsection (3) of this section that penalisation is rendered unlawful under the Act when it is perpetrated on an employee for having performed or committed one or more of the acts referred to in the succeeding paragraphs of that subsection. Thus, it is perfectly plain that in order to succeed in a cause of action grounded on the Section, a Claimant must establish not only that he/she suffered a detriment of a type referred to at subsection (2) but that the detriment was imposed because of, or was in retaliation for, the employee having acted in a manner referred to at subsection (3).”
8 A causal connection must be established between the claimants’ exercising their rights under Section 27(3) and the employer’s subsequent actions under Section 27(2). The respondent points to the Labour Court's decision Aidan & Henrietta McGrath Partnership v Monaghan  PDD162, (Appendix 10) which followed the "but for" test laid out in O'Neill v Toni and Guy Blackrock Limited  (HSD095), in relation to penalisation under the 2005 Act, as follows:
“the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that "but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”
9 Accordingly, it is for the claimants to prove that the detriment to their terms and conditions must have occurred because of, or in retaliation for having committed a protected act. That is, the alleged detriment would not have arisen "but for" the claimants’ having exercised one of the six actions under Section 27 (3). In line with paragraph 6 above, the respondent contends that the claimants’ actions are not covered under the six subsections of s.27 (3). Even if the Adjudicator finds that the claimants meet the requirements of s.27 (3) – without relying on the Sit-in – then, there still exists no operative cause between the claimants’ actions and the non-payment of wages. The non-payment of wages arose strictly in the context of industrial action. Industrial action is not mentioned in section 27 of the SHWW Act.
10 The respondent did not prevent the claimants from working on 3-7 April 2017. There was no imminent threat to health and safety. Many agency miners worked away in the time period 3 April to 7 April. The simple truth is the claimants were in breach of their contractual obligations, so wages could not be paid. This was the operative cause, not a so-called safety issue. If the claimants had put forth any other argument apart from safety, and still refused to work, then the outcome would still be the same; they wouldn’t have been paid. Accordingly, the detriment complained of (which is denied) is rooted in industrial action not safety. Clearly, the respondent’s motives were far removed from penalising employees for raising safety complaints. Also, it must be borne in mind that the claimants’ so-called safety concerns bore little integrity as genuine safety issues given that a HSA Health and Safety Inspector had informed the safety representatives that the new EFR led system actually improved pre-hospital emergency care in the mine.
11 In conclusion, the claimants’ allegations of penalisation are without foundation. The respondent is of the view that the claimants in this case, in engaging in a Sit-in, did not commit an act protected by subsection (3) of s.27, and in any event, the respondent did not impose a detriment on the claimants because of, or in retaliation for, having committed a protected act. The respondent acted because the claimant was in breach of the contract of employment. Therefore, it is the respondent’s position that there cannot therefore be a causal link between a protected act under the SHWW Act and the non-payment of wages due to industrial action.
Industrial Relations Claim (the IR Act)
1 In THE General Manager’s letter to SIPTU of 21 April 2017 he made the point that the company went well beyond the requirements of the Safety, Health and Welfare at Work Act (2005) ‘in terms of the training it provides, the funds allocated to safety, the systems, and consultation around safety, health and welfare at work.’ He also alluded to the following important considerations:
· That it was agreed at the Steering Committee to introduce the new EFR led system on 3 April – this forum having union representatives including Mr. JR
· That following a site visit on 30 March by an independent Health and Safety Inspector of the Health and Safety Authority prior to the implementation, the new EFR led system was found to be an improvement to the existing system and met statutory obligations.
· That this opinion was confirmed by the senior Health and Safety Inspector on his visit on April 7 when he stated that the new EFR led system was compliant with legislation and an improvement on the existing system in the treatment of potential injured individuals.
· That the proposals submitted by the senior Health and Safety Inspector were not the same as those proposed by the safety representatives as ‘there is no dedicated person assigned to the phone on the 1140 level.’
2 Following this letter there were some local ‘engagements’ where it was intimated to management that if half of the wages ‘lost’ during the period April 3-7 was paid to those employees affected, then this would be an end to the issue. In the interests of workforce morale, and so that this issue wouldn’t continue to spill over into other engagements with the unions on other unrelated issues, the respondent put forth a proposal to settle the issue in line with what it had been told; i.e. half of the wages lost. This proposal was then rejected out of hand by the employees through their union officials.
3 The respondent withdrew the offer given that it was an attempt to promote positive industrial relations with the workforce and this gesture had been thrown back in their faces. The claimants then took their grievances to the WRC. As it stands, the respondent sees no basis for compensating the claimants for engaging in unofficial industrial action while pretending that there was a serious and imminent threat to their health and safety that prevented them from working. Further, the respondent submits that it is not the Adjudicator’s role to reward employees who have taken claims to the Commission seeking the payment of wages for a period of time when they were engaged in an unofficial Sit-in. A positive affirmation of the claimants’ actions by way of an Adjudicator’s decision would completely undermine the basis on which industrial relations in conducted in the respondent’s organization. No industrial action of this nature has ever before been compensated by the Respondent. To recommend that the respondent should do so now would fly in the face of established industrial relations practice of 40 years standing
Findings and Conclusions:
In relation to the preliminary argument I have looked at the cases presented by the Respondent. In almost all instances the cases cited refer to common law proceedings (personal injury claims) and employment law cases, in the majority employment equality cases, this is not the case in the instant claim.
I will address my conclusions to the complaint as presented by the Complainant.
Payment of Wages Act, 1991.
Both parties quoted extensively from the Payment of Wages Act, 1991. Within the Respondent’s arguments the following is included “The respondent argues that ‘wages’ or sums payable under a ‘Contract of employment’ are only payable on performance of such work or service. As such it is implausible to argue that a reduction in hours ‘pre- factum’ or before the fact where no such hours are available and no such performance of work or service is required could rightly be considered ‘a deduction from the wages of an employee’. It cannot be possible to deduct from that which does not exist. The deduction from the wages of an employee must be a deduction post factum, after the fact or once they have “performed personally work” or service for the employer and the wages rightly payable on completion of the work or service for the employer are not then paid by the employer”.
Section 8 of the Industrial Relations Act of 1990 clearly defines Industrial Action as follows:
“Any action which affects, or is likely to affect, the terms or conditions, whether express or implied, of a contract and which is taken by any number or body of workers acting in combination or under a common understanding as a means of compelling their employer, or to aid other workers in compelling their employer, to accept or not to accept terms or conditions of or affecting employment”.
The “sit-in” by the underground miners constituted industrial action.
An employee’s entitlement to receive remuneration is conditional on his being able to show readiness and willingness to perform contractual services. Engaging in a withdrawal of labour does not equate to readiness and willingness where readiness and willingness means a willingness to work fully and co-operatively. Therefore, workers involved in limited industrial action does not equate to ready and willing to work fully and co-operatively hence they cannot demonstrate a willingness to work – a pre-condition of entitlement to wages.
In the UK case of Miles V Wakefield, the House of Lords held that limited industrial action is inconsistent with the ability to show willingness to work and the Employer in such circumstances is justified in stopping payment of wages.
The Respondent also quotes from the Act in relation to the phrase ‘properly payable’ –
The respondent submits that the Adjudication Officer does not have jurisdiction to deal with the complaint made under the Payment of Wages Act (1991). The respondent submits that in the first instance that wages were not properly payable to the claimants from the beginning of their withdrawal of labour on the evening of 3 April 2017 until the claimants’ recommenced work on 7 April 2017. Section 5 (6) of the above Act states:
(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.”
This section of the Act cannot be overlooked.
Safety, Health and Welfare at Work Act 2005.
Section 27 of this Act provides protection against dismissal and penalisation. Penalisation includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his detriment, an employee with respect to any term or condition of his or her employment.
As per submission the Complainant feels that the removal of the ambulance was in view of the Complainant/s a defect in their workplace. The working environment for underground workers who are working alone for long periods every shift, emergency systems are crucial in a mine much different than other employments.
The alleged penalty imposed relates to the deduction from wages that the Complainant did not work. I find it difficult to accept that there was a defect in the workplace when an official from the Health and Safety Authority made a visit to the mine on 30th March 2017 and reviewed the proposed EFR system. In conversation with the Health and Safety Manager and the Safety Representative this official voiced the opinion that proposed system was far better than those in other mines.
As already stated there is no entitlement to wages that are not properly payable – if there was no entitlement to wages then it follows that there was no illegal deduction and therefore no penalisation.
Industrial Relations Act, 1969.
Having considered everything presented or stated at the hearing I believe that any problem that existed in the Respondent mine was an industrial relations problem rather than a Health and Safety problem.
On further reading of the Complainant’s submission it is not altogether clear where the problem exists, is it the change from one system to another or is it the timing of the introduction of the new system? The submission presented by the Union representative clearly states as follows:
“The company were looking to change the system that had been in the Mine for 35 years, a system that had served the Mine extremely well to an Emergency First Responder Led System. Consultations on safety improvements had been ongoing since 2014 between management and worker’s representative in the lead up to the unilateral implementation date without agreement”.
This statement points towards the implementation date being the problem and not the introduction of the new system. The new system was introduced on a date selected by management i.e. 3rd April 2017. This was on a date that was only four days after a visit by a Health and Safety Inspector who had positively commented on the new system.
The full-time safety representative was in communication with management up to the events on 3rd April 2017. On 2nd April 2017 the Safety Representative “looked for a stay on the implementation of the new arrangement to allow time to brief all four shifts on the outcome of a meeting held on Friday 31st March 2017”. It is not clear on how much time was being requested, at the hearing it was mentioned that two weeks should be enough time.
At the hearing the evidence provided by one of the full-time union officials alluded to a deterioration in the relationship between employees and employer that had been taking place during the previous 18 -24 months. When one reads the letters dated the 21st April 2017 and 3rd May 2017 (appendix 5 and 6 of the Respondent submission) it is clear that such a deterioration in the relationship mentioned is real and not imagined.
In the letter from the union to the General Manager dated 21st April 2017 it is claimed that “in relation to the six-day sit-in for health and safety reasons our members are very disappointed that management are refusing to pay wages bearing in mind the agreed solution was proposed by the Safety Reps in advance of the launch date 3rd April 2017 which management rejected, meaning xxxx instigated the sit-in.The solution that involved the health and safety inspector is in the main the same one as the Safety Reps proposed. The requirement to utilise the WRC state machinery, this is the first time that XXXXXX safety record was brought outside of the mine, at a time when the workers had just recorded 12 months LTI free. This represents another low for all concerned”.
In reply the Respondent pointed out that “with regards to your comment that there was an implementation of a resolution already proposed by the Safety Representatives, this is not the case. There is no dedicated person assigned to a phone in the 1140 level”.
I would think that whilst the suggestions are not exactly the same, they are not totally different.
In Appendix 11 (company submission) there is a letter from the General Manager addressed to Frankie and John. This letter reads as follows:
“I have listened to your request, balanced the long-term implication going into our future negotiations, and agree that some sort of compromise would be best for all parties.
The company still wants to ensure that it is clear these type of actions are not in the best interest to anyone. The company position is too not engage in discussions or negotiations under such pressures. It serves no one in the end. We can work under disagreement while we find some common ground or have the help of a third party assist in resolving any issues.
Therefore, the company will pay half the lost wages. Example being if an employee lost 4 shifts the company will pay 2 of those 4 shifts. If an employee lost 3 shifts the company will pay 1.5 shifts. The company will also allow an employee to cash in a vacation day for the third shift of the 4 shifts. In the case of the 3 shifts lost it would be 0.5 of a day vacation. No overtime will be paid just regular time in case an employee was in on OT to be clear.
Both parties come out of this incident with lessons learned and we can now move forward”
I have come to the conclusion that both parties, Complainants and Respondent, could have managed this situation better. The letter outlined above makes an offer to address the situation and as stated in their submission, in the interest of workforce morale, and prevent this issue spilling over into other engagements with the unions on other unrelated issues.
This offer was rejected out of hand.
I am now recommending that the offer made by the company be increased to €1,000 for each of the 151 underground employees. I would also like to suggest that any future engagements between unions and management include discussions on the introduction of a “Guarantee of Service” clause that would help to prevent any similar situations arising in future. I can elaborate on such a clause if requested to do so.
Finally, in summary:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Decision / Recommendation outlined above.
Dated: October 31st 2018
Workplace Relations Commission Adjudication Officer: Jim Dolan