FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 Section 7(1), Payment of Wages Act, 1991 PARTIES : SECTION 7(1) PAYMENT OF WAGES ACT, 1991 BRITVIC IRELAND LIMITED TRADING AS BRITVIC IRELAND (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - ANDREW ALLEN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision No: r-156113-pw-15/RG
BACKGROUND:
2. These are cross-appeals of Rights Commissioner's (now known as an Adjudication Officer) Decision No: r-156113-pw-15/RG made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeals were heard by the Labour Court on 24th November 2015 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
This is a joint appeal by Mr Andrew Allen and by Britvic Ireland Limited t/a Britvic Ireland against Rights Commissioner Decision No: r-156113-pw-15/RG dated 17thSeptember 2015 in Mr Allen’s claim against his employer under the Payment of Wages Act 1991 (the Act).
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Andrew Allen will be referred to as “the Complainant” and Britvic Ireland Limited t/a Britvic Ireland will be referred to as “the Respondent”.
The Complainant alleged that the Respondent had made an unlawful deduction of €131.00 from his wages in respect of 23rdDecember 2014. The Complainant referred his complaint to the Workplace Relations Commission under the Act on 11thMay 2014.
The Rights Commissioner (now known as an Adjudication Officer) found that the complaint was well-founded in part and awarded the Complainant the sum of €74.48, subject to lawful deductions, within six weeks of the date of her Decision. Both the Complainant and the Respondent appealed this Decision to the Court.
Background
The Complainant has been employed with the Respondent since 10thMay 2001. He is paid €18.62 per hour plus 17.5% shift premium and works 39 hours per week. On 23rdDecember 2014 the Complainant clocked in that morning and commenced work at 8.00am. He said that he worked until sometime between 10.15am - 10.30am when he went home. He did not clock out. The Respondent paid him for two hours’ work and deducted six hours’ pay from his wages.
Summary of the Complainant’s Case
The Complainant stated that although he was scheduled to work eight hours on that day, as it was the break-up day for Christmas, no manufacturing was carried out on that day and all he was required to do was to carry out cleaning on his machine. As soon as he had completed this task, and without being allocated any further work, he went home.
The Complainant submitted that this was in accordance with the established custom and practice in the Company. He said that he expected to be paid for the full day as had happened in the past. He said that in the 14 years of his employment with the Respondent he had never worked beyond 11.00am on 23rdDecember.
Summary of the Respondent’s Position
The Respondent disputed the Complainant’s claim that it made an unlawful deduction from his wages by not paying him a full day’s pay on 23rdDecember 2014. It stated that it was a condition of the Complainant’s employment that he should clock in and out of work each day.
The Respondent acknowledged that the “break-up day” is a non-standard working day and it is the established practice that all employees are paid their full eight hours’ rostered time as long as certain criteria are metviz.that the work allocated to each shift is fully completed before employees are released by the Manager to go home early. Generally all employees leave at the same time, usually halfway through the shift, once the Shift Leader/Manager on site gives permission. In certain circumstances it is possible for an employee to seek permission to leave earlier than that.
However, the Respondent stated that the Complainant had not sought permission to leave, he did not clock out and left the work premises without permission and therefore he was paid for the hours that he worked only.
The Law Applicable
Section 1 defines “wages”:-
“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment including-
- (a)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, and
- (b)[Not applicable]
Findings of the Court
In this case the Complainant was paid only for the hours he worked on 23rdDecember 2014. The question the Court must consider is whether or not the payment he is claiming is an emolument referable to his employment within the meaning of the Act which he was entitled to be paid.
It is not disputed that there is no written documentation on the “established practice” that all employees are paid their full eight hours' rostered time on that day. Equally there is no dispute that it is an established practice within the Company which is customary to that time of year only. On that basis the Court can be satisfied that the established practice constituted an implied contractual arrangement with employees, which the Complainant had an anticipation of benefiting from, and therefore can come within the definition of “an emolument referable to his employment”.
The Complainant told the Court that normally on “the break-up day” he would inform his Manager prior to him leaving the factory premises, they would shake hands and exchange seasonal greetings. He told the Court that on this occasion, on 23rdDecember 2014, he did not speak to his Manager before leaving the factory premises and did not inform anyone that he was leaving and he did not seek permission to leave. He said that once his cleaning work was completed he left the factory premises.
The Respondent told the Court that it was a condition precedent for employees to seek permission to leave the factory premises from a Shift Leader/ Manager and to clock out before leaving on that day. While the Respondent accepted that there may have been occasions when employees did not clock out, that only occurred when they had already received permission to leave. The Respondent told the Court that on the day in question, there was additional work to be carried out (rework) which the Complainant did not do as he left without permission and the work had to be shared among remaining employees.
The Court is satisfied that the established practice referred to was conditional on certain criteria being met and that on this occasion the Complainant did not abide by those conditions, therefore he was entitled to be paid only for those hours actually worked. In those circumstances the Court is satisfied that no unlawful deductions were made from the Complainant’s wages.
Determination
The Court upholds the Respondent’s appeal, the Adjudication Officer’s Decision is overturned and the Complainant’s appeal is rejected.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th December 2015______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.