FULL RECOMMENDATION
PARTIES : GALWAY CLINIC DOUGHISKA LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00032772, CA-00043415-001. BACKGROUND: DETERMINATION: The Adjudication Officer decided that the complaint of the Complainant was well founded and awarded the Complainant “€2,000 nett” in compensation. The Law The Act at Section 5, in relevant part, provides as follows: 5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it. and 5(6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. Summary position of the Complainant The Complainant submitted that at the point his employment ended on 17thOctober 2020 he had available to him a total of €4,378 to be claimed as a grant in respect of expenses incurred in pursuing education or research. The terms of the educational / research grant scheme meant that he could claim payment of the grant within three months of cessation of his employment. In January 2021 he contacted the employer explaining that there was a difficulty in accessing educational courses due to the COVID pandemic. He submitted that on 14thJanuary 2021 he had advised the Appellant that he had been approved for admission to an MSC Course by an education provider. He received communications from Mr JJ B and Mr JB who were both telling him that he could not claim the money because he had left the employment. As a result of these communications he did not formally submit an application for a grant payment to the Appellant because he was being told that there was no point in doing so. In response to questions from the Court the Complainant confirmed that he had never pursued an application to the educational institution concerned to pursue the course of study for which he had been approved and neither had he incurred the expense of fees associated with the course of study in question. The Complainant submitted that, because he was informed by staff of the Appellant that he had no access to the scheme as he was no longer in employment, the Appellant had failed to apply the terms of the educational / research grant scheme and that it had varied the contracted terms unilaterally and withheld or deducted payment prior to reviewing the application for the specific course for which the Complainant had been approved by an education provider. Summary position of the Appellant The Appellant submitted that the grant scheme which has given rise to the within compliant makes provision for payment of a grant under certain conditions and ultimately “at the discretion of the Galway Clinic RMO co-ordinator and/or HR manager and must be approved by the Galway Clinic Finance Department” The terms of the scheme also require an applicant to send in a completed application for to the RMO Co-ordinator / Medical Director following which an applicant will be advised as to whether same is approved or not. On 14thJanuary the Appellant’s RMO Co-ordinator advised the Complainant that the Appellant would not be approving a grant payment to him. The Appellant submitted that communications from its HR Manager to the Complainant dated 15thJanuary 2021 expressed the view of the HR Manager that, while the grant may be claimed up to three months after leaving the employment, the expenses incurred for which re-imbursement is sought should have been incurred while the Complainant was employed by the Appellant. The Appellant submitted that no expense had been incurred by the Complainant by the 15thJanuary 2021. The Appellant submitted that the Act at section 1 makes clear that wages as defined by the Act do not include any payment in respect of expenses incurred by an employee in carrying out his employment. On the basis therefore that the grant is in fact a re-imbursement of expenses incurred by an applicant the Complainant could not claim that the grant in question constituted wages as defined by the Act. Discussion and conclusions The dispute before the Court concerns an alleged failure by the Appellant to pay to the Complainant a grant to re-imburse expenses incurred by him in discharging the fees of an educational institution in respect of a course of study. The Complainant did not in fact undertake the course of study under contemplation by him at the material time and did not in fact incur any expenses for which he could have been re-imbursed under the scheme. It is not in dispute that the scheme in question is a scheme which requires a completed grant application form to be sent to the RMO co-ordinator / medical director of the Appellant and that the applicant would be notified of approval / non approval by the RMO co-ordinator / medical director. Neither is it disputed that the scheme terms state that approval is neither automatic nor granted retrospectively and that approval must be secured before incurring expenses. It is common case also that the scheme requires that original receipts for approved expenses must be attached to a claim for payment of a grant and that those receipts should show the amount paid, to whom and by whom it was paid. The position of the Complainant is that he would have made an application under the scheme and ultimately undertaken a course of study and incurred expenses in respect of which he would have claimed re-imbursement but for the content of communications with the RMO co-ordinator and the HR manager of the Appellant in January 2021. In those communications the view was expressed to him that, having left the employment some months previously, no claim for payment under the scheme would succeed. He therefore contends that the Appellant’s failure to make a payment to him of €4,378.41 at some unspecified time amounts to a breach of the Act. In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Mac Grath J. considered Section 5 of the Act as follows: 34. Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion. 35. Central to the court's analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation. 36. The provisions of s.5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the Employment Appeals Tribunal. It was argued that the Employment Appeals Tribunal should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p.482: “I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in *138 law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as implicit in the determination of the Employment Appeals Tribunal a finding is that the appellant agreed to pay to the respondents service pay and a long service increment then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18 September 2002. In either case there has been an error of law. Accordingly I allow the appeal.” 37. This decision supports the proposition that the first matter which should be addressed by the Labour Court is to determine what wages are properly payable under the contract. This decision makes clear that this Court, when considering a complaint under the Act, must first determine the wages which were properly payable to the employee on the occasion. It is only when that is determined can the Court proceed to examine whether that amount differs from that which was actually paid on the occasion and whether any difference amounted to a deduction within the meaning of the Act. In this case the worker contends that, on an unspecified occasion, a payment of wages in the amount of €4,378.41 should have been made to him arising from the conditions attaching to the educational / research grant scheme in operation in his former employment. He acknowledges that he never made an application for such a payment under the scheme and never made a payment to an educational institution in respect of which a claim for re-imbursement could be made under the scheme. The Court notes the Complainant’s contention that he did not undertake a course of study, pay fees to an educational institution in respect of that course of study or make an application to the Appellant for payment under the grant scheme because of the content of communications with staff of the Appellant in January 2021. It is not for this Court under the Act to embark, initially at least, on an assessment of the reasonableness or otherwise of the positions adopted by the staff of the Respondent in communication exchanges with the Complainant in January 2021. As set out above, the initial determination required of the Court is of the wages which were properly payable to him on an occasion where the Complainant contends that a deduction was made from his wages. It is common case that, in accordance with the terms of the scheme which created the potential for payment to the Complainant of a grant, conditions precedent for receipt of a grant payment were that the Complainant must have completed an application form, submitted that to the Appellant, received approval from the Appellant for entry into the scheme, incurred the expense of fee payment to the educational institution concerned and made a claim for payment accompanied by receipts in respect of those payments made by him. It is common case also that none of these conditions precedent for payment by the Appellant of a grant to the Complainant were met in the within case. The Complainant has set out the reason why he did not fulfil the requirements of the scheme or incur an expense in respect of which he could have sought re-imbursement under the scheme. The salient fact for this Court however is that, as acknowledged by both parties, a payment under the scheme could only have become due to the Complainant in the event that he had completed the steps required by the terms of the scheme itself. In those circumstances, the Court concludes that no basis exists for concluding that a grant payment of €4,348.41 was properly payable to the Complainant at any material time. Having regard to the fact that the Complainant’s employment had been terminated prior to any date material to the within complaint, the Court concludes that no wages were properly payable to the Complainant by the Appellant to the Complainant at any time which could be contended by the Complainant as being an occasion when an unlawful deduction was made from his wages. Having reached this conclusion it is not necessary for the Court to consider further any issues which might arise from the fact that the Complainant has not specified an occasion on which he contends a deduction within the meaning of the Act was made from his wages or to address the Appellant’s contention that a payment under the grant scheme does not amount to wages within the meaning of the Act Decision The Court decides, for the reasons set out above, that the Complaint before the Court is not well founded. The decision of the Adjudication Officer is set aside. The Court so decides.
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