Stefanazzi v Labour Court
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 09 October 2019 |
| Neutral Citation | [2019] IEHC 660 |
| Docket Number | [2017 No. 34 MCA] |
| Court | High Court |
| Date | 09 October 2019 |
[2019] IEHC 660
THE HIGH COURT
MacGrath
[2017 No. 34 MCA]
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 46 OF THE WORKPLACE RELATIONS ACT 2015 AND PURSUANT TO THE PAYMENT OF WAGES ACT 1991
Wages – Point of law – Onus of proof – Appellant seeking to appeal from the determination of the respondent – Whether the appellant discharged the onus of proof
Facts: The appellant, Mr Stefanazzi, appealed to the High Court on a point of law pursuant to s. 7(4)(b) of the Payment of Wages Act 1991 from the determination of the respondent, the Labour Court, made on the 20th December, 2016, whereby it refused Mr Stefanazzi’s appeal from a decision of the adjudication officer on the issue of the wages properly payable to him in accordance with s. 5(6) of the 1991 Act. The appeal was grounded on an affidavit of the appellant sworn on the 25th January, 2017, at paras 3 to 5 of which Mr Stefanazzi summarised the errors of law into which he asserted the Labour Court fell. These were as follows: a. it failed to recognise the breach of the 1991 Act; b. it overextended the limits of its role by exonerating the notice party, the Department of Arts, Heritage and the Gaeltacht, on the preliminary point while at the same time acknowledging that the notice party did not follow its own procedure as an employer of the plaintiff; and c. the procedures not followed by the Department should have been held determinative in the Labour Court’ finding under the 1991 Act.
Held by MacGrath J that Mr Stefanazzi had failed to discharge the onus of proof which was upon him.
MacGrath J held that the appeal must be dismissed.
Appeal dismissed.
This is an appeal on a point of law pursuant to s. 7(4)(b) of the Payment of Wages Act, 1991 ( “the Act of 1991”) from the determination of the Labour Court made on the 20th December, 2016, whereby it refused Mr. Stefanazzi's appeal from a decision of the adjudication officer on the issue of the wages properly payable to him in accordance with s. 5(6) of the Act of 1991.
Mr. Stefanazzi is employed by the notice party in the Site Designation and Plans Unit of the National Parks and Wildlife Service. This unit was historically under the control of the Department of the Environment, Heritage and Local Government but was transferred to the Department of Arts, Heritage and the Gaeltacht ( “the Department”) from 2011. He is employed at clerical officer grade but maintains that for some considerable time he has been fulfilling the duties of a geographic information system technician ( “GIS technician”) at executive officer level, which attracts a higher rate of pay.
In its determination, the Labour Court described the central contention of the applicant as being the failure of the Department to pay wages properly due to him and that this failure constituted a deduction in accordance with s. 5 of the Act of 1991, ss. (6) of which 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).
(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.”
The appeal was heard by the Labour Court in accordance with the provisions of s. 44 of the Workplace Relations Act, 2015 on 14th December, 2016. Ms. Caitriona Ryan, the head of human resources at the notice party's Department, who has sworn affidavits on behalf of the notice party, avers that in the course of the hearing an objection was made that the appellant's claim had not been filed within the appropriate time limits as set out in s. 6(4) of the Act of 1991 but the Labour Court focused on a different point, namely how wages become properly payable to a civil servant in the Department (emphasis added) and subsequently made its ruling on this. It seems that in coming to this decision, the Labour Court was of the view that a finding on this issue had the potential to be determinative of the case.
The preliminary issue deemed to require determination was whether, at the material time, a rate of pay was properly payable to the appellant, higher than that which was actually paid to him. If no such rate of pay was properly payable to him at the material time, then s. 5(6) of the Act of 1991 could have no application because the pay received by him would have been in accordance with that which was properly payable to him.
The Labour Court expressly records in its determination that the parties accepted its decision as regards this approach and consequently made submissions concerning the mechanisms employed to assign a rate of pay, or a grade, to a civil servant in the Department. The Labour Court also expressly noted that while there was disagreement with regard to the range of mechanisms available to award acting up allowances or higher duty allowances, it was common case that a procedure had to be followed by the Department in order to apply a rate of pay, award a grade, or assign an acting up/higher duty allowance to a person in the position of the applicant (emphasis added). It is also expressly stated that it was common case that the application of any greater allowance following the execution of such procedure required the sanction of the Department of Public Expenditure and Reform, and that no available procedure had been followed in relation to the applicant in order to secure for him a higher grade or an acting up/higher duty allowance. The court also noted the Department's assertion that no sanction had been received from the Department of Public Expenditure and Reform for the application of a higher rate of pay, the award of the higher grade, or the assignment of an allowance to the appellant.
The Labour court found that no procedure had been followed by the Department which would create a rate of pay properly payable to Mr. Stefanazzi, other than that which he did receive at the material time. It found that he was not at any time assigned an acting up/higher duty allowance, awarded a grade other than that of clerical officer in the Department, or otherwise had a higher rate of pay applied to him. It determined that the total amount of wages paid to the appellant at the material time was not less than the amount properly payable to him throughout that period. His appeal could not therefore succeed.
For the sake of completeness, it ought to be recorded that the adjudicating officer in his ruling described the complaint as being misconceived and hopelessly out of time, stating that the appellant was relying on a breach which allegedly occurred in 2009 to advance a complaint made in 2015. He also stated that the Act was not the appropriate vehicle for advancing what he regarded as a re-grading claim. The appellant disagrees with this assessment and contends that there were ongoing and continuous breaches of the Act, and that in any event, the hearing before the Labour Court was a de novo hearing.
The appeal to this Court is grounded on an affidavit of the appellant sworn on the 25th January, 2017, at paras 3 to 5 of which Mr. Stefanazzi summarises the errors of law into which he asserts the Labour Court fell. These are as follows:-
a. it failed to recognise the breach of the Act of 1991;
b. it overextended the limits of its role by exonerating the Department on the preliminary point while at the same time acknowledging that the notice party did not follow its own procedure as an employer of the plaintiff; and
c. the procedures not followed by the Department should have been held determinative in the Labour Court’ finding under the Act of 1991.
The appellant obtained an honours degree in geography from Trinity College Dublin in 2004, a major component of which was GIS. He commenced employment with the Department (or rather its predecessor) as a temporary clerical officer in June, 2007. Initially he provided cover for an executive officer who was on leave from the Site Designation and Plans Unit of the National Parks and Wildlife Service ( “NPWS”). It is his case that at interview with the Public Appointment Service he informed the interviewer that he was only interested in taking up a position that was closely associated with his qualification, a major component of which was GIS. He maintains that he was informed that the Department had a GIS unit but did not have an administrative division and he was therefore assigned to the Sites Designations and Plans Unit which had a close working relationship with the GIS unit. On 1st August, 2007 it was decided by the personnel unit to establish a position on a probationary basis, being that of clerical officer within the same unit. He maintains that the basis of this offer was that he was successful in entering a competition for the established position of clerical officer, that he had made it known that his qualifications would be an asset to the department and that a posting in the NPWS would be beneficial to his career development. He signed a probationary contract on 15th August, 2007 for a period of one year. He was made permanent in 2008.
The appellant contends that on 23rd July, 2009 it was agreed between Mr. Jim...
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