Complainant

Respondent

Parties

Darren  McNelis

Minister for Defence

Representatives

Self-represented

Anthony Kerr SC, Killian Flood BL, instructed by the Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00068250-001

19/12/2024

The Complainant contends he did not receive RTSD payments he was entitled to receive whilst he was attending a full-time training course.  He referred a complaint to the WRC on 19th December 2024 seeking the WRC’s assistance in addressing the delay in receiving these payments he states were due to him.    

Oral Testimony of the Complainant (under affirmation)

The Complainant is a member of the RDF since 2017.  Provision is made for paid training and support days for reservists (known as RTSDs).  The Complainant was approved by the Defence Forces to attend a full-time training course from 21st October 2024 until 14th February 2025.  He was the first reservist to attend a full-time training course.  The Complainant contends that in line with the Defence Force Regulations R.5 he was entitled to receive payment during this time.  However, while he received initial payments due to him, he was not paid after 15th November 2024.  This caused severe financial hardship given the time of year and the Complainant could not avail of social welfare.  The Complainant was also concerned that the delay in processing the payments due to him would negatively affect his personal taxation situation in 2025.  The Complainant referred a complaint to the WRC on 19th December 2024 seeking inter alia the WRC’s assistance in addressing the delay in receiving payments due to him.  At the time of the referral of his complaint to the WRC, the Complainant submits that an amount of €4,799.25 was owing to him.  The Complainant told the hearing that since the referral of his complaint, he has received the payments due.

The Complainant outlined to the hearing that the delayed payments highlight broader systemic issues that require review by the WRC.  This was not the first time he experienced delays in receiving payment from the Defence Force Personnel Policy Branch.  The Complainant outlined that in 2019 he encountered delays for 71 days.  However, the delays were systemic and served to erode the trust of reservists in the payment system.  He added that volunteers should not be expected to suffer delays in payments due to them, and that the delayed payment was not an administrative error, but policy driven. 

The Complainant outlined that he seeks a formal written apology from the Department of Defence in relation to the financial hardship and breach of the duty of care caused by the delayed payments.  The Complainant also seeks a direction that no RTSD days be deducted from the 2025 RTSD allocation.  Further, the Complainant requests that a formal review be conducted by the WRC to ascertain whether his tenure in the Directorate of Reserves (ORA) from September 2019 to August 2021, during which time he worked a full-time pattern, and his attendance on the full-time training course from October 2024 to February 2025, is reckonable/pensionable service under the Defence Forces Regulations R.5, paragraph 67(2).  Finally, the Complainant wants his PRSI class to be changed from M to H.  

In response to the preliminary issues raised by Mr Flood at the hearing on 20th May 2025, the Complainant submitted that the WRC has jurisdiction to hear his complaints as the 1991 Act includes the Defence Forces within its scope.  The Complainant also referred the hearing to s 242 of the 1954 Act (later corrected to s 243) and outlined that he is an employee for the purposes of the 1991 Act while on a sanctioned training course, because if he leaves the training course, he is subject to military laws.  Further, the 1954 Act applies to a ‘member’ and a reservist is regarded as a ‘member’ while attending a training course.  The 1991 Act allows the WRC to examine if service is reckonable/pensionable as the 1991 Act includes the Defence Forces within its scope.

In response to questions from the Adjudication Officer the Complainant responded that he could not direct the hearing to any provision within the 1991 Act that conferred jurisdiction on the WRC to direct a respondent to issue an apology; to conduct a review of the type sought by him; to determine if his service from 2019 to 2021 and on the training course was reckonable/pensionable; to ensure his taxation affairs are not adversely affected; or to direct a change in PRSI class. 

The Complainant’s Supplementary Submission

The Respondent’s outline submission was sent to the WRC and to the Complainant on 16th May 2025.  Given the late submission, and the jurisdictional issues raised within and again at the hearing on 20th May 2025, the parties were given a further opportunity to address my jurisdiction to hear the complaint under the 1991 Act by way of a written supplementary submission.  In relation to the jurisdictional issues which the Complainant was asked to address, the Complainant submitted that once a reservist is placed on full-time duty, the Defence Force apply the same pay rules, disciplinary framework and attendance obligations that govern permanent soldiers.  Therefore, the 1991 Act applies to him while he attends a full-time course of instruction, and the WRC has jurisdiction to determine the complaint.  The Complainant sought to rely inter alia on the Defence Force Regulation R.5; Defence Force Regulation S.3 – Pay & Allowances (1969); s 243 of the Defence Act, 1954; and the Pay Administration Guidelines for the Reserve (12 July 2023).   

The Complainant’s Email of 29th July 2025

Following the hearing on 20th May 2025 and the furnishing of the written supplementary submissions, the Complainant emailed the WRC on 29th July 2025.  In this email the Complainant outlined that he wished to raise “an associated matter for consideration”.  The Complainant added that he was not raising a new complaint but rather clarifying the scope of the complaint before the WRC.  He submitted that the Defence Force Regulation R.5 provides that reservists attending full-time training are to be treated in like manner to the PDF regarding weekly payment under Defence Force Regulation S.3.  PDF members on the same course received seven-day weekly pay and payment for the Christmas recess period, whereas he was only paid Monday to Friday and was not paid over the Christmas recess. 

At the hearing on 16th September 2025, the Complainant outlined that while he was not seeking payment for the Christmas recess, he was now seeking payment for two additional days per week for the duration of the training course.  He opened to the hearing para 18(1) of Section III – Rates of Pay and Gratuities – Non-Commissioned Officers and Privates/Rates of pay (enlisted personnel) and outlined that this provision entitled him to payment on like terms to members of the PDF. 

Hearing on 20th May 2025

At the hearing on 20th May 2025, Mr Flood outlined on behalf of the Respondent, that the WRC does not have jurisdiction to hear or determine the complaint as the nature of military service in the RDF is voluntary.  Therefore, the Complainant does not come within the definition of an employee for the purposes of the 1991 Act.  The hearing was directed to A Claimant v. Kilkenny Civil Defence (LCR18371); A Volunteer in the Civil Defence v. A Local Authority (IR-SC-00002727); and A Complainant v. An Organisation (ADJ-00054077).  Mr Flood directed the hearing to the definition of wages under the 1991 Act and specifically that wages do not include any payment to an employee otherwise than in his capacity as an employee.  As the Complainant is engaged on a voluntary basis, any payment given to him during a training course is given to him in a capacity otherwise than as an employee.  With respect to the remaining elements of the Complainant’s complaint, Mr Flood submitted that the WRC has no jurisdiction with respect to these matters.  Further, the claim for RTSDs had been made to the Complainant since the referral of the complaint to the WRC, and therefore the complaint is moot and accordingly there is no need to proceed to hearing.

The Respondent’s Supplementary Submission

The Respondent reiterated its position that the WRC has no jurisdiction to inquire into the Complainant’s RTSD allocation or his reckonable/pensionable service as a member of the RDF, and these aspects of the complaint must be dismissed.  The Respondent conceded that insofar as RDF members are paid by the Respondent to engage in supplementary service on a voluntary basis in support of the PDF, those RDF members could validly lodge a complaint with the WRC in the event of non-payment.  The Respondent emphasised that in general RDF members are not paid wages like PDF members, although they are reimbursed for RTSDs.  They engage in service to the RDF on a voluntary basis, and they must be entitled to some level of pay/compensation before the 1991 Act may be invoked.  Therefore, while the Complainant identifies a limited jurisdictional basis for the WRC to hear a complaint as to unpaid wages under the 1991 Act, this is not a general jurisdiction to hear and determine complaints by RDF members.  The Respondent outlined that s 243 of the 1954 Act does not apply to attendance on a training course, and therefore the Complainant would not be subject to disciplinary action as outlined within s 243 if he failed to attend a training course. 

Having regard to MacHado Dos Santos v. BHP Laboratories Limited (ADJ-00050899); Saruwatari v. Indeff Limited (ADJ-00048774) and Puodziulaityte v. Word Perfect Translations Limited (ADJ-00031254), the Respondent reiterated its position that it was not necessary for the WRC to determine the complaint as the Complainant has been fully paid in relation to the claim before the WRC.  It was further submitted that it was not necessary to conclusively determine the issue of jurisdiction as the Complainant has now received the outstanding payments and further redress is neither available nor appropriate.

A second hearing date took place on 16th September 2025.  Mr Kerr outlined at this hearing that the complaint should be dismissed because the outstanding payments, the subject of the complaint before the WRC, have been discharged in full prior to the hearing and accordingly there is no issue left in the complaint that requires determination.  Mr Kerr directed the hearing to BHP Laboratories and Indeff.  He noted that in both decisions the Respondent had paid wages due prior to the hearing, and accordingly the complaints were dismissed having regard to the applicable sections of the 1991 Act.  Mr Kerr opened Word Perfect Translations and he outlined (without accepting that the decision is correct in law) that the finding of the Adjudication Officer in this case – to award €300 compensation notwithstanding that the wages had been paid prior to the hearing – could be distinguished on its own facts, namely, what the Adjudication Officer described as the “immense struggle” the complainant faced to secure unpaid wages and the duration of the delay in receiving her wages.  Whereas in this case the delay in paying the Complainant was short and the Complainant lodged his complaint to the WRC within days of the payment falling due.  Mr Kerr also opened Redmond v. Sulzer Pump Solutions Ireland Ltd (ADJ-00049570) in which the Adjudication Officer found that the failure to pay wages when they fell due constituted an unlawful deduction within the meaning of the 1991 Act.  However, as the amount due had been paid at the time of the hearing, the Adjudication Officer did not direct the payment of compensation to the complainant in that case. 

I asked Mr Kerr to comment on the wording of s 6(1) of the 1991 Act and specifically if s 6(1) mandates an Adjudication Officer to issue a direction to the employer to pay compensation (if any) in the event of a finding that the complaint is well-founded.  I also directed the hearing to Metcalfe v. Lidl Ireland Gmbh (ADJ-000046533).  Mr Kerr accepted that the use of the word “shall” in s 6(1) could be read as requiring an Adjudication Officer to issue a direction to the employer to pay compensation.  In relation to compensation Mr Kerr highlighted the words “if any” within s 6(1) and that in Sulzer and Lidl, the Adjudication Officer, though finding the complaint under the 1991 Act was well-founded, awarded nil compensation.

With respect to the Complainant’s email to the WRC on 29th July 2025, Mr Kerr submitted that this element of the complaint was not detailed in the original complaint to the WRC, and that the Complainant was trying to incorrectly align himself with members of the PDF.

Relevant Law

Section 5(1) of the 1991 Act provides:

“An employer shall not make a deduction from the wages of an employee . . . ”

Section 5(6) of the 1991 Act provides:

“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”.

Section 6(1) of the 1991 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding— the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that— (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.” (emphasis added).

The High Court in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55, outlined that when considering a complaint under the 1991 Act, it must first be established the wages which were properly payable before considering whether a deduction had been made. 

Findings

At the time of the referral of his complaint to the WRC, the Complainant submitted that an amount of €4,799.25 was owing to him.  Following the hearing on 20th May 2025 and the written supplementary submissions of both parties with respect to jurisdictional issues, it was common case: (i) an RDF member who is in full-time training is entitled to be reimbursed for same; (ii) if the RDF member is not so reimbursed, they are entitled to invoke the 1991 Act; (iii) the Complainant did not receive several weekly payments which fell due to be paid on dates in November and December 2024; and (iv) the Complainant received the overdue payments in January 2025.  It is the Respondent’s position that as the Complainant has now received the outstanding payments further redress is neither available nor appropriate. 

Following the hearing into the complaint on 20th May 2025, the Complainant emailed the WRC on 29th July 2025 seeking to enlarge the amount of pay owed to include 2 additional days for each week he attended the full-time training course.  The Complainant did not quantify the amount he contends is owing in this regard or produce evidence of the actual rates of pay of PDF members.  At the hearing on 16th September 2025 the Complainant outlined that a PDF member receives seven-day weekly pay while on a full-time training course, whereas he was only paid Monday to Friday and was not paid over the Christmas recess.  In response, Mr Kerr submitted that this element of the complaint was not in the original complaint form, and that the Complainant was incorrectly trying to align himself with members of the PDF.  While I accept that the Complainant’s claim referred to the WRC and as ventilated at the hearing on 20th May 2025 concerned five-day payments rather than seven-day payments, the complaint before me is under the 1991 Act and concerns a claim of unlawful deductions related to these weekly payments.  Further, the hearing into the complaint had not yet concluded as the matter had been relisted for a second day. 

In his email to the WRC on 29th July 2025, the Complainant sought to rely on Defence Force Regulation R.5 to ground his claim that seven-day weekly pay was properly payable to him while he was on the full-time training course.  I note that Defence Force Regulations R.5., Reserve Defence Force, Part 10, Financial Provisions, Pay (reservists), para 67(1) provides for the rate of pay applicable to members of the RDF attending a course of training and its link to the PDF rate of pay, however, para 67(3) provides that payment for reservists attending a course of training “ . . . shall be granted only in respect of each day’s attendance at such course . . .”  (my emphasis).  The Complainant did not give evidence that he attended the training course seven days a week for the duration of the course. 

At the hearing on 16th September 2025, the Complainant sought to rely on an additional provision which is contained within the Defence Force Regulations S.3.  - Pay and Allowances (Permanent Defence Forces) to ground his claim that pay for a seven-day week was properly payable to him while he was attending the full-time training course.  Para 18(1) reads: “The weekly rates and scales of pay of members of the Line Class holding non-commissioned army rank shall be as determined by the Minister under section 97(1) of the Act.”  Section 97(1) of the 1954 Act provides that theMinister must determine the rates and scales of pay, allowances and gratuities of members of the Defence Forces. 

I am not satisfied on the evidence presented to the hearing that either Defence Force Regulation R.5 or para 18(1) of Defence Force Regulations S.3 as relied on by the Complainant entitled him to receive seven-day weekly pay while he was engaged on the sanctioned full-time training course.  Therefore, I do not find on the evidence presented to the hearing, that payment equivalent to seven-day weekly pay was properly payable to the Complainant as a member of the RDF for each week of the training course he attended from October 2024 to February 2025.  

In relation to the complaint as referred to the WRC on 19th December 2024, I am satisfied that the question of whether there is a contravention of the 1991 Act is assessed as of the date the complaint is referred to the WRC.  I find the payments due in November and December 2024 (totalling €4,799.25) were properly payable to the Complainant, and the failure to make these payments when they fell due constitutes an unlawful deduction within the meaning of s 5(6) of the 1991 Act.  Accordingly, I find this element of the complaint to be well-founded. 

I am satisfied that s 6(1) of the 1991 Act obligates an Adjudication Officer to include a direction to the employer to pay to the employee compensation of such amount, if any, as they consider reasonable in the circumstances, subject to limits prescribed in the same section.  I am satisfied that a central purpose of the 1991 Act is the protection of wages, and the right to receive wages when they fall due.  I note the findings of the Adjudication Officer in Word Perfect Translations Limited, (opened to the hearing by Mr Kerr without accepting that the decision is correct in law), in particular:  

“It is significant that the Oireachtas chose ‘compensation’ in section 6 to describe the redress to be awarded under the Payment of Wages Act. The job of the adjudication officer is to give legal effect to the words chosen by the Oireachtas. ‘Compensation’ should therefore be given its ordinary meaning, i.e. redress to include consequential loss. Here, the complainant incurred loss in not being paid and in not being paid on time. As she has since been paid the wages due, redress is to be awarded for the loss incurred in the delay in getting paid.  To approach this question otherwise would significantly undermine the ‘further protection’ offered by the Payment of Wages Act. ‘Further protection’ are the words used in the Long Title of the Act and there would be no further protection if all the employer was required to do was pay what was due anyway. If there is a contravention of the Act, the employee must be able to recover for the consequential loss incurred because of the contravention. Of course, this is purely compensatory and not punitive.”

I concur with the above findings in Word Perfect Translations Limited, and I find that where it is held that there has been an unlawful deduction within the meaning of s 5 of the 1991 Act, then redress (i.e., compensation) is assessed as of the date of hearing, considering whether the outstanding amounts due were paid in the interim. 

In this case, the Complainant was forewarned on 8th November 2024 that he would not be paid the remaining 2024 payments when they fell due.  This gave rise to considerable concern for the Complainant for obvious reasons.  He expended effort, without success, in trying to resolve the matter before the first deduction occurred, and when he did not receive the payments due at the end of November and in December 2024, he referred a complaint to the WRC.  Despite making efforts, he was unsuccessful in securing social welfare and so was without a source of income for several weeks.  In his written submission and at the hearing on 20th May 2025, the Complainant explained that his reason for bringing the complaint to the WRC was to ensure fairness and prevent a recurrence of delays in RTSDs payments both for himself and other members of the RDF where such RTSD payments fell due to be paid.  I note the Complainant acknowledged the efforts of the ORA in trying to address the issue and that the Respondent made the overdue payments to the Complainant by January 2025. 

As the Complainant has since been paid the RSTD payments due, I am satisfied that redress is to be awarded for the loss incurred in the delay in getting paid.  In this regard I direct the Respondent to pay the Complainant €400 in compensation which I consider reasonable in the circumstances.  I distinguish this case from Sulzer (ADJ-00049570) and Lidl (ADJ-000046533).  In Sulzer the Complainant was not left without a source of income and the deduction concerned a modest bonus payment.  In Lidl the delayed payment was confined to one weekly wage only; the delayed payment was made within 4 days; and the Respondent went to considerable efforts to mitigate the error including giving the employee concerned a voucher by way of compensation for the delay in paying his wages.

With respect to the remainder of the Complainant’s complaint presented to the WRC on 19th December 2024 (namely, the request for a formal written apology from the Department of Defence;  a direction that no RTSD days be deducted from the 2025 RTSD allocation; a formal review be conducted by the WRC to ascertain whether the Complainant’s tenure in the ORA from September 2019 to August 2021 and his attendance on the full-time training course is reckonable/pensionable service under the Defence Forces Regulations R.5, para 67(2); and the request to have his PRSI class changed from M to H), I find I have no jurisdiction to inquire into these elements of the Complainant’s complaint.  

I decide this complaint under the Payment of Wages Act, 1991 is well-founded in part, and I direct the Respondent to pay the Complainant compensation of €400.

Payment of wages. Unlawful deduction. Volunteer.