PWD2530

PW/25/16

PARTIES:

  Chairman:  Ms O'Donnell

  Employer Member: Ms Doyle

  Worker Member:  Ms Hannick

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045137 (CA-00059825-002)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015.  The following is the Court's Decision.

DECISION:

This is an appeal by Ms Ni Fhatharta (the Complainant) against Decision ADJ-00045137 CA-00059825-002 of an Adjudication Officer under the Payment of Wages Act, 1991 (the Act) against her employer, An Garda Siochana (the Respondent). The Adjudication Officer held that the complaint was not well founded.There are three linked cases PW/25/9, PW/25/15 and CD/25/21

1 Background

The Complainant is a member of An Garda Siochana, and was certified medically unfit for work from 10 September 2020, and remained so at the time of the Labour Court hearing on 26 June 2025. It is the Complainant’s position that she was eligible for payment under the Respondent’s injury at work scheme and that failure to do so was contrary to the Act. The complaint was lodged with the WRC on 6 November 2023. The reckonable period for the purpose of the Act is therefore 7 May 2023 to 6 November 2023.

 2 Summary of Complainant’s submission

The Complainant was certified medically unfit for work from 10 September 2020 and received sick pay in accordance with the Respondent’s sickness policy. On 11 December 2020, the CMO assessed the Complainant and verified her fit to return to work contingent upon the provision of reasonable accommodation. On 21 December 2020, the Respondent ceased all payments asserting that the Complainant had exhausted her sick pay entitlement. Arising for that decision the Complainant has suffered significant losses. The Complainant submitted an application under Code 11.37 which is a specific provision within the Garda Code relating to the process for certifying an absence from duty as an “injury on duty.” This certification can mean the difference between being paid or not paid if on long term sick leave.

The Complainants application was submitted in July 2022. There is a provision within the scheme that allows for payment to be back dated to the commencement of the absence.

The Complainant’s application was rejected on the grounds that her absence did not constitute an injury on duty. The Complainant lodged an appeal to that decision in January 2024, but her appeal was not upheld.

In support of the Complainant’s position that she was entitled to have her absence classified as an injury on duty and to receive the benefits of that classification, the Representative for the Complainant sought to rely on the case of Deming Goa V Commissioner of An Garda Siochana [2018] IEHC 244.

The Court was not provided with a copy of the case as required by the Labour Court rules. The paragraph contained in the Complainant’s submission which she was seeking to rely on, and which was attributed to that judgment is not actually contained in the judgment and therefore the Court could not have any consideration of same.

It was the Complainant’s submission that the Respondent did not follow their own procedure or afford her fair procedure when concluding that her absence did not constitute an injury on duty. This failure resulted in the Complainant not receiving payments that were due to her contrary to the Act. The Complainant is asking the Court to determine that fair procedure was not followed, and the Complainant is entitled to be paid injury on duty benefit for the duration of her absences.

3 Summary of Respondent’s submission.

On 17 March 2020, the Complainant sought and was granted leave to self-isolate at home because of an underlying condition that rendered her at high risk of being made seriously ill by COVID-19 infection. The Respondent provided her with IT equipment and asked her to work from home. On 20 August 2020, the Respondent received advice from the Office of the CMO that the Complainant’s medical circumstances do not fall into the category of extremely medical vulnerable group that need to cocoon. The Complainant’s GP at the time placed her in the at-risk group. The guidelines in the public service at that time was remote working should be facilitated if feasible for local management. On 3 September 2020, the Complainant as informed by her Superintendent that “given operational needs of the Service and Claremorris CE area I am unable to support continued home working as an effective solution to your circumstances. This is in light of the loss of members from the CE area and the needs of the unit to support leave etc for other members.”

The Complainant was directed to return to the workplace (Claremorris Garda Station) on 10 September 2020. The Complainant then went on certified sick leave with work related stress. The Respondent sought to investigate the circumstances relating to her work relate stress, but the Complainant would not engage. The Complainant was paid her full sick leave entitlements. On 21 July 2022, the Complainant sought review of her work -related stress for the purpose of consideration for injury duty benefit. Management of Sickness Absence HQ directive 139/10 states “where there is any doubt that an injury on duty occurred, Divisional Officers should refer the matter to Assistant Commissioner H.R.M. who will seek the advice of the C.M.O. The C.M.O will take into account all relevant information in arriving at his/her advice. A decision regarding injury on duty will be based on:

A complete investigation file into the incident

Management views and recommendations

The assessment and opinion of the C.M. O.”

It goes on to say “Where there is a doubt as to whether the member’s sickness absence is due to ordinary illness or an injury on duty the member’s absence will be treated as ordinary illness pending a decision on the classification of the injury and in particular the C.M.O’s advice. If it is determined that the absence does relate to an injury on duty, the members pay will be retrospectively adjusted as soon as practicable.”

The Complainant’s application for injury on duty benefit was rejected by the Chief Superintendent following a recommendation from HRM by letter of 22 March 2023. An appeal was lodged in January 2024 and a final decision in response to that appeal was made by A/Executive HRPD Ms Yvonne Cooke not upholding the appeal on 18 July 2024.

The Respondent opened to the Court the case of Balan’s v Tesco Ireland Limited [2020] IEHC 55 which held that to ground a case under the 1991 Act the wages must be properly payable. In this case as the Complainant’s application for injury on duty benefit was declined, the money was not properly payable.

4 The applicable law

Section 1 of the Act states:

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:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind

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

“Where—  

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

5 Discussion

 The issue before the Court is the payment of injury benefit to the Complainant during her absence on certified sick leave.  In cases of this nature the first thing the Court has to establish as set out in Marek Balans v Tesco Ireland Limited [2020] IEHC 55 is that there were wages that were proper payable during the relevant period.  The Act defines wages as “in relation to an employee, means any sums payable to the employee by the employer in connection with his employment”. It is not in dispute that the Complainant’s application for injury benefit was rejected. The Court is being asked to insert itself into that process, and declare the process as unfair, and to declare that the Complainant is entitled to injury benefit. No legislation or caselaw was opened to the Court demonstrating that under this legislation, that the Court’s jurisdiction extends to it doing that. It is the Court’s view that the first issue it has to consider is whether injury benefit was properly payable during the relevant period. As the Complainant’s application was rejected by the parties charged with making that decision, the Court finds that it was not properly payable and therefore her claim under the Act must fail.

6 Decision

The Court having considered the submissions of the parties determines that the Complainant has not identified wages that were properly payable during the relevant period and that were not paid. On that basis her claim must fail.

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

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
08 August 2025	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.