SECTION 7(1), PAYMENT OF WAGES ACT, 1991
HEALTH SERVICE EXECUTIVE NATIONAL AMBULANCE SERVICE
(REPRESENTED BY HEALTH SERVICE EXECUTIVE NATIONAL AMBULANCE SERVICE)
- AND -
MR DAVID O'CONNOR
1.Appeal of Adjudication Officer Decision No(s) ADJ-00018104 CA-00023389
The Adjudication Officer decided that the complaint was not well founded.
The Appellant submitted that whereas his appeal to the Court was made outside the period of 42 days permitted in the Workplace Relations Act, 2015 (the Act of 2015) for the making of such appeals, that exceptional circumstances existed which prohibited him from making the appeal in time. The Respondent submitted that no exceptional circumstances existed. The Act of 2015 at Section 44(4) permits the Court to extend time for the making of an appeal where it is satisfied that the delay was caused by the existence of exceptional circumstances. The decision of the Adjudication Officer was given on 29thApril 2020 and the within appeal was received by the Court on 10thDecember 2020.
It is settled law that in order to consider an appeal of this nature the Court must first be satisfied that exceptional circumstances were in existence during the period for the giving of an appeal notice to the Court and the Court must also be satisfied that the exceptional circumstances applying prevented the giving of a notice of an appeal to the Court.
The Court considered the statutory provision in its decision, albeit in a case under a different statute, inGaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034)as follows:
In the circumstances outlined the Court finds that the Appellant has established that exceptional circumstances existed in this case such as to be regarded as being of a nature so as to prevent the lodging of the within appeal within 42 days of the date of the decision of the Adjudication Officer. The Court consequently decides, in accordance with the Act at Section 44(4), to extend the time for the making of the within appeal.
The Appellant has been employed by the Respondent since 2000. The Appellant contends that a failure by the Respondent to pay him premium payments in respect of weekend working from 20thJuly 2020 to 3rdSeptember 2020 constitutes an unlawful deduction from the wages properly payable to him in the period. The Respondent contends that because the Appellant did not attend for work at weekends during the material time he was not entitled to receive payment of premiums as claimed.
It is common case that where an employee of the Respondent does not actually work unsocial hours which would attract a premium payment that such premiums are not paid except where:
The Appellant was not absent for any of these reasons or participating in any of these schemes at the material time
Summary position of the Appellant
The Appellant submitted that he had been wrongly placed on Health and Safety leave from 20thJuly 2020 until 3rd September 2020 and, but for having been sent home under that policy, he would have been at work and the impugned deductions in the amount of €1,097.97 would not have taken place.
Summary position of the Respondent
The Appellant had been appropriately placed on leave following his suggestion that he was in some way at risk of physical injury by reason of the introduction of a new system in the employment and his self-referral to Occupational Health. The terms of his engagement with the Respondent provide on a contractual basis that premium payments, except in four clearly stated instances, are not liable to be paid to the employee when he does not actually work those hours.
The Act at Section 5(1) provides as follows:
Section 5(6) of the Act provides:
The High Court inMarek Balans v Tesco Ireland Limited  IEHC 55made clear that this Court, when considering a complaint under the Act must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Court would then consider whether that deduction was lawful.
The Appellant in this appeal has asked the Court to consider the background to his having been placed on leave at the material time. The Court’s jurisdiction under the Act is however not to determine the reasonableness or otherwise of either party in addressing issues which had arisen between them prior to 20thJuly 2020 and consequently to consider whether it was reasonable to place the Appellant on leave in the circumstances then applying. The matter before the Court concerns the wages of the Appellant in the period from 20thJuly to 3rdSeptember 2020.
It is common case that the Appellant was absent on leave at the material time. It is also common case that he was not absent due to serious assault at work, absent on force majeure leave granted under the Parental leave Act, 1998 as amended, absent and availing of the Injury at Work scheme or absent on protective leave in the context of disciplinary matters.
In these circumstances it is clear to the Court that, the Appellant being on leave at the material time and consequently not attending for work at weekends, no contractual or other entitlement to payment of weekend premium existed and that the wages paid to the Appellant were the wages properly payable to him in the period. The Court having reached this conclusion is not able to find that a deduction within the meaning of the Act was made from the wages of the Appellant during the period from 20thJuly 2020 to 3rdSeptember 2020.
The Court determines that the Respondent paid to the Appellant the wages which were properly payable to him at the material time for the within complaint.
The Appeal therefore fails and the decision of the Adjudication Officer is affirmed.
The Court so decides.
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.