Case Number: ADJ-00030744. Workplace Relations Commission

• Judgment Date: 13 October 2022
• Year: 2022
• Hearing Date: 03 December 2021
• Docket Number: ADJ-00030744
• Date: 13 October 2022
• Court: Workplace Relations Commission
• Respondent: Limerick City And County Council

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant commenced employment with the Respondent on 1st April 2007. At all times his role was described as that of “Executive Engineer”. The Complainant is a full-time, permanent employee of the Respondent. On a series of dates between 12th November 2020 & 26th May 2021, the Complainant referred a number of complaints under the Payment of Wages Act and the Organisation of Working Time Act. These complaints related, primarily, to the same set of facts and each covered a separate cognisable period. In essence, the Complainant fell into dispute with the Respondent regarding his place of work in early 2020. Thereafter, the Complainant refused to attend work in the assigned area. It is his case that he was willing to work and no work was made available for him. By submission, the Respondent stated that the Complainant did not attend work, and as a consequence of the same he was removed from payroll, with the consequent effect on his annual leave entitlements. A hearing in relation to this matter was convened for, and finalised on, 2nd December 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

Summary of Complainant’s Case:

The Complainant is engaged as an “Executive Engineer” with the Respondent. In May 2020 the Complainant was informed that his base of employment would be move to a different section within the metropolitan area. The Complainant raised a grievance in relation to the same and submitted that the Respondent did not have authority to transfer him whilst an ongoing grievance was active. On foot of this dispute, the Complainant did not attend work at the new site but stated that he was willing to work elsewhere. On 8th June 2020, the Respondent issued correspondence to the Complainant stating that they would remove him from payroll in the event that he did not attend work at the new site. On 9th June 2020, the Respondent subsequently ceased paying the Complainant’s salary. The parties ultimately elected to engage with mediation regarding this dispute, with part of the outcome of the same being that the Complainant’s would be restored to the Respondent’s payroll on 17th August 2020. This agreement also set out that the Complainant would return to work shortly thereafter. Unfortunately, the parties again fell into dispute regarding the manner of the Complainant’s return to employment. On 30th November 2020, the Complainant was certified as unable to work due to ill health. Whilst the Complainant was paid for the first week of this sick leave, he was subsequently removed from the Respondent’s payroll on 5th December 2020. The Complainant, through his representative, raised a grievance in relation to the same as he was entitled to be paid under the terms of the Respondent’s sick pay scheme. This grievance was denied on the basis that the sick pay is paid at the discretion of the county manager. By the date of the final referral, the Complainant had not returned to work with the Respondent and remained on certified sick leave. Regarding the complaints under the Organisation of Working Time, the Complainant submitted that he did not receive his correct annual leave or public holiday entitlement within the cognisant periods for the purposes of the complaints.

Summary of Respondent’s Case:

By response, the Respondent submitted that the Complainant’s contract of employment contained a clause that allowed them to transfer him within the relevant metropolitan area. Following a review of the requirements of the organisation, the Complainant was transferred on 5th May 2020. The Complainant refused to transfer, and did not attend for work at the new location. Correspondence was issued to the Worker stating that he was required to attend on 18th May 2020 & 2nd June 2020. On 3rd June, the Employer issued correspondence stating that if the Worker did not attend for work on 8th June 2020 he would be removed from payroll. The Worker did not attend and was subsequently removed from payroll on 9th June 2020. Following a mediation conference, the Employer agreed to return the Complainant to payroll from 17th August 2020. Unfortunately, the parties fell into dispute again and the Complainant again did not attend for work on 26th November 2020. As a result of the same, the Complainant was again removed from payroll on 5th December 2020. By submission, the Respondent stated that in the event that the Complainant does not complete the work that he is assigned, the Respondent is not required to discharge his salary. On foot of the same, they submit that the wages the Complainant seeks to recover are not “properly payable” under the Act as a consequence his complaint must fail. The Respondent further submitted that the Complainant’s annual leave entitlement was affected by his not attendance and that all annual leave and public holiday entitlements that had accrued were discharged.

Findings and Conclusions:

The present dispute involves a number of complaints under the Payment of Wages Act and the Organisation of Working Time Act. Central to these disputes is the removal of the Complainant from the Respondent’s payroll on two occasions, on 9th June to 17th August 2020 & 5th December 2020 to the lodgement of the complaint. It is the position of the Complainant that his wages were due and owing during these periods. In the alternative, the Respondent has submitted that they were entitled to remove the Complainant from their pay-roll on both these occasions. The complaints under the Organisation of Working Time Act will, in the main, be determined by whether the Complainant accrued an entitlement during these periods. Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…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”. In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act, “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”. In the present complaint, the Complainant did not attend work at the site designated by the Respondent from 5th May 2020. In this regard I note that the Complainant’s contract of employment permits the Employer to transfer the Complainant within the metropolitan area based on its own requirements. While the Complainant is entitled to dispute the same, and a grievance was raised in this respect, the Respondent was acting within their contractual entitlements by insisting on such a transfer. It is apparent that from 18th May 2020 to 17th August 2020, the Complainant did not attend work as he fundamentally disagreed with the Respondent’s decision to transfer him. This being the case, it is clear that the Complainant did not attend for work whilst being fit to do so during this period. In the matter of Fuller -v- Minister for Agriculture [2008] IEHC 95, Gillian J. referred to the following passage, “There was no contract to pay it unless it was earned. If she had...