PWD2117

FULL RECOMMENDATION

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

PARTIES :

LAKE REGION MEDICAL LIMITED
(REPRESENTED BY A&L GOODBODY)

- AND -

MR BARRY CONNELL

DIVISION :

SUBJECT:

1.Appeal of Adjudication Officer Decision No’s: ADJ-00023998, CA-00030663-001.

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 on 12 July 2021. The appeal was heard by the Labour Court on 15 October 2021 in accordance with Section 44 of the Workplace Relations Act, 2015.

The following is the Court's Determination:

DETERMINATION:

Background

This is an appeal by Mr Barry Connell (the Complainant) against a Decision of an Adjudication Officer ADJ-00023998, under the Payment of Wages Act 1991 (the 1991 Act), against his employer Lake Region Medical Limited.

The Complainant is employed as a General Operative. He referred a complaint to the Workplace Relations Commission on 5 September 2019 in relation to the rate of pay applicable to overtime working.

The Adjudication Officer found no evidence was submitted that the complainant received less than the amount of remuneration properly payable to him within the cognisable period for his complaint and so his complaint under the 1991 Act was not well founded.

The Complainant lodged an appeal to the Labour Court on 12 July 2021. A remote hearing of the Labour Court into the preliminary issue of time limits was held on 15 October 2021, in line with provisions of the Civil and Criminal Law (Miscellaneous Provisions) Act, 2020, for the holding of hearings in a remote Court room.


Complainant’s case
It is the Complainant’s case that the Respondent applied an incorrect overtime rate for six Saturday night shifts that he worked during the cognisable period encompassed by this claim.

In support of his appeal, the Complainant drew the Court’s attention to his contract of employment and the company handbook which state that overtime rates for Saturday working are time and a half for the first four hours and double-time thereafter. The Complainant submits that his core working hours are 39 hours per week and that when he worked Saturday shifts he should have been paid overtime at a rate of time and a half for the first four hours and double-time thereafter.


Respondent’s case
It is the Respondent’s case that the Complainant works a 4-cycle shift which involves working a 42-hour week averaged over an eight-week cycle. While his average working week is 42 hours per week, the Complainant is paid an overtime rate of time and a half for hours worked over and above 39 hours per week. This practice was introduced in 2017.

The Respondent disputes that the Complainant’s core working hours are 39 hours per week. In the past the Respondent has withdrawn the Saturday night shift in response to fluctuating demand for product, which reduced the average weekly working hours for 4 shift cycle workers from 42 hours to 39 hours per week.

Employees were notified in writing of any reduction in hours and subsequently notified in writing of a return to normal working hours. The Respondent’s representative drew the Court’s attention to letters issued to the Complainant in 2016 when he accepted such temporary amendments to his terms and conditions of employment.

The Respondent submits that the complainant has not established any legal basis for his claim and has failed to identify any contravention of the Act or identify monies that were properly payable for the period in question.


The applicable law

Time Limits

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides as follows:
“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 5 (6) of the Payment of Wage Act 1991 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”.


Determination

For a breach of the Payment of Wages Act to occur the wages referenced in the claim must be properly payable within the cognisable period set down in the Workplace Relations Act. As this claim was lodged to the Workplace Relations Commission on 5 September 2019, the relevant period for consideration by this Court is 6 March 2019 to 05 September 2019.

The Complainant submits that his core working hours are 39 hours per week and that on six occasions during the cognisable period, he worked Saturday shifts that should have been paid at an overtime rate of time and a half for the first four hours and double-time thereafter.

During the course of the hearing the Complainant acknowledged that correspondence exchanged between the parties in 2016 confirms that he accepted changes to his terms and conditions of employment that resulted in him working a 4-cycle shift, with a 42-hour week averaged over an eight-week cycle.

In such circumstances, the Complainant acknowledged that Saturday working forms part of his normal shift cycle roster. The Complainant also accepts as part of that shift cycle he is paid an overtime rate of time and a half for hours worked over and above 39 hours per week.
The Complainant acknowledged that no further overtime payment arises and that on reflection he could not provide evidence of a contravention under the Payment of Wages Act.

To ground a claim under the Act a payment must be ‘properly payable’ to the Complainant within the meaning of the Act. It follows that as no payment was ‘properly payable’ to the Complainant during the cognisable period encompassed by this claim the appeal must fail.

The appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.

NOTE

Enquiries concerning this Determination should be addressed to Cathal Nurney, Court Secretary.