SECTION 7(1), PAYMENT OF WAGES ACT, 1991
NOONAN SERVICES GROUP LTD
(REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRL) LTD)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
1.Appeal Of Adjudication Officer Decision No(S) ADJ-00009342 CA-00012265-002
The Adjudication Officer held that Mr Coleman’s claim was not well founded. Mr Coleman lodged an appeal to the Labour Court on 18 May 2018.
Mr Coleman also lodged an appeal of a recommendation made by the Adjudication Officer in a related complaint made under section 13(9) of the Industrial Relations Act, 1969. In that case, the Adjudication Officer saw no grounds to make a recommendation in favour of the complainant. That appeal was withdrawn in advance of the Court hearing.
The Complainant is employed by the Respondent as a Security Officer. He is seeking payment of a “Personal Attack Benefit” which he submits was properly payable to him when he was out of work following an incident in the Hospital’s emergency department in March 2017. The Complainant’s position is that he is entitled to receive a “Personal Attack Benefit” which is provided for under section 7 of the Employment Regulation Order (Security Industry Joint Labour Committee 2017).
The Respondent’s position is that no entitlement to claim a benefit under the Personal Attack Benefit Scheme arose as the Complainant was not attacked during the course of his duties. It submits that no unlawful deduction of wages occurred.
On 4 March 2017 the Complainant responded to an incident in the Accident & Emergency Department after a man was observed taking a case from a patient trolley. As the Complainant approached the man with his supervisor, the man became extremely aggressive and tried to strike the supervisor. While attempting to restrain the man the Complainant was dragged towards the Nurses station and was pushed against it with force. The Complainant received a further impact when the man ran towards him. The man was eventually restrained with the assistance of additional security personnel.
The Complainant is an experienced Security Officer who was working as part of a security team on a hospital site. On 4 March 2017 the Complainant was involved in an incident in the Accident & Emergency Department when on duty. In the course of the pursuing a man who was acting suspiciously, the Complainant hit himself against the nurse’s station and was injured.
The Applicable Law
Amount Proper Payable
What is disputed is the application of S. 7 of that ERO, which provides as follows:
Section (7) Personal Attack Benefit
It is accepted that the Complainant was absent from work following a workplace incident on 4 March 2017 and that during this time he was paid sick pay as provided for under the terms of the ERO during this period. The Complainant submits that he is also entitled to receive the “Personal Attack Benefit” provided for under Section 7 of the Employment Regulation Order (Security Industry Joint Labour Committee 2017).
The Respondent submits that the Complainant was not subject to an attack but was injured in the course of his normal duties while trying to apprehend a male who was acting suspiciously in the A and E Department. SIPTU submits that the Respondent is splitting hairs in relation to the definition of what constitutes an attack or an assault in the workplace.
Both parties confirmed to the Court that they did not intend to provide any witness testimony to the Court and that they wished to rely on their oral and written submissions.
The Court was provided with a four-page document titled “Injury/Accident Investigation Report Form”completed by the Complainant.
On the first page under the section headed “Incident Details” the following handwritten details were recorded:- “Injured while trying to apprehend a male acting suspiciously inside A/E Department”.
Under the heading “Description of incident” a tick is placed beside a box titled “Assault/Abuse”.
Page three of the four-page document contains a heading “Personal Statement Form” under which proforma text states:“When preparing a statement only state the facts as you are aware of them and avoid the inclusion of assumption, opinions or suppositions”.
The handwritten summary recorded states:“On Sat 4thMarch 2017 between 02am and 03am while conducting my duties as a security officer in the A/E Dept of U.H.L. I received an injury to the left side of my body while trying to apprehend a male who was acting suspiciously inside the A/E Department. As a result of this injury I was admitted to A/E Department for treatment”.
The statement is signed and dated by the Complainant. Proceeding the Complainants signature is proforma text which states “I have reviewed the above and am satisfied that the information documented accurately reflects my statement”.
The Court notes that it is being asked to interpret section 7 of the Employment Regulation Order, (Security Industry Joint Labour Committee) 2017, S.I. No. 231 of 2017, which provides for the payment of a Personal Attack Benefit
In the case of Mythen Bros. Ltd. v. Building and Allied Trades Union (2006) E.L.R. 237, the Court addressed the approach that should be taken when it is asked for an interpretation of the terms of a registered agreement. The Court said that interpretation should not be approached as if it was a statute or a product of legal draughtsmanship. Its terms should be construed ‘by applying to them a meaning that they would normally bear in the context of industrial relations so as to achieve the result envisaged by the parties to the agreement’.
In the within appeal, the Court is being asked to construe a term of an ERO in the absence of direct evidence from the parties who engaged in the formulation of the ERO as to what was intended by the clause that is in dispute. The appeal before the Court was not referred to the Court under s. 45 of the Industrial Relations Act 1946, as amended by s. 13 of the Industrial Relations (Amendment) Act 2012, which allows an individual to seek an interpretation of an ERO by the Court. The case was brought under the Payment of Wages Act, under which Act the burden of proof in establishing what is ‘properly payable’ rests with the Complainant.
The Court finds that it is not possible for it to reach a determination that the sum claimed is ‘properly payable’ in the absence of evidence from the parties who engaged in the formulation of the ERO as to the result that was envisaged by them. Therefore, the Complainant cannot discharge the burden of proof to establish that the wages claimed are ‘properly payable’ and the claim before the Court must fail.
Accordingly, the Court finds that the Complainant has not established that the “Personal Attack Benefit” was properly payable to him during the relevant period encompassed by his claim.
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.