INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 7(1), PAYMENT OF WAGES ACT, 1991
TESCO IRELAND LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY ANNE HICKEY SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms O'Donnell
1. Appeal of an Adjudication Officer's Decision No(s). r-159410-pw-15.
2. The employee appealed the Decision of the Adjudication Officer to the Labour Court on the 29th March, 2016. A Labour Court hearing took place on the 5th July, 2016. The following is the Court's Determination:
This is an appeal by Mr Thomas Smyth in a complaint under the Payment of Wages Act 1991 (the Act) claiming that his employer Tesco Ireland was in breach of Section 5(1) of the Act when deductions were made from his salary from 5thJanuary 2015. The Adjudication Officer found that the Complainant was in receipt of salary properly payable for his role at that date and accordingly did not uphold the complaint under the Act.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Thomas Smyth will be referred to as “the Complainant” and Tesco Ireland will be referred to as “the Respondent”.
The Complainant commenced employment with the Respondent from 1994 and following a break in service in 2006 he returned in October 2008 as a Trading Manager based in Sligo. As a result of a management restructuring which took place in June 2010 he was appointed to the role of Line Manager on the Night Shift on 16thSeptember 2010 and he was issued with a new contract of employment for this role dated 16thAugust 2010.
As a result of further restructuring which took place in late 2014 the Respondent took the decision to close or partially close the night operation in selected stores. As a result it was decided to make redundant the Night Manager’s role in the identified stores. The Complainant was given the options of redundancy or the opportunity to avail of a role as a Line Manager on days/evenings. The Complainant opted for the latter.
Summary of the Complainant’s Case
Ms Elaine Coghill, Anne Hickey Solicitors, on behalf of the Complainant, submitted that the deduction in the Complainant’s salary which resulted from the change of role was a breach of the Act. She said that when this situation came about there was no discussion about pay or a change to his terms and conditions of employment. Ms Coghill said that when the Deputy Manager asked him how he felt about losing 1/3rdof his salary he said that he should not lose any pay as he had a Line Manager’s contract. When the Store Manager confirmed that he would lose the night shift premium of 1/3rdhe objected to the reduction in pay on the basis that the contract he had been issued as a Line Manager in August 2010 was not a night-time contract.
Ms Coghill contended that the Complainant had not received a 1/3rdpremium when he moved from being a Trading Manager to a Line Manager’s role working on nights and accordingly that his contract was a generic Line Manager’s contract without a night shift premium and that he should continue to be paid that salary when he transferred to a Line Manager’s role working on days/evenings. Accordingly, she contended that the Respondent was in breach of the Act due to the deduction in salary he suffered since 5thJanuary 2015.
Summary of the Respondent’s Position
Mr Terry McNamara, Ibec, on behalf of the Respondent, stated that when the Complainant was employed as Trading Manager from October 2008 he was on a salary of €44,982. Mr McNamara stated that when that role ceased to exist and he was placed in the Line Manager role working on nights in September 2010 and he was paid €44,100 which was the appropriate Line Manager’s salary inclusive of a 1/3rdpremium for the liability to work nights. Mr McNamara stated that the letter which accompanied his contract of employment dated 16thAugust 2010, which he signed acceptance of on 5thOctober 2010, stated as follows:-
- “Please confirm your acceptance of this new role by signing the attached copy of this letter and returning it to me. I have attached a copy of My Job, for the Night Manager role along with a copy of the existing Terms and Conditions for the role.”
Section 5 of the Act states
- 5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
Conclusions of the Court
Evidence was given by both the Complainant and by Mr Séamus McGowan, Store Manager, Sligo.
In his evidence, Mr McGowan stated that the salary which applied to the Trading Manager role was significantly higher than the salary for a Line Manager as it was a more senior role. This was not disputed. Mr McGowan stated that, when the Complainant moved from being a Trading Manager to a Line Manager on nights, he was paid a 1/3rdshift premium in excess of the basic Line Manager’s salary. The evidence given shows that the Complainant’s salary changed and in fact reduced at this time. The Respondent informed the Court that the basic salary i.e. without night premium applicable to a Line Manager’s role in 2015 was €36,000 and, due to his level of experience, the applicable rate for the Complainant was €38,000. He was paid €38,000 from 5thJanuary 2015.
Having considered the submissions of both parties and the evidence given the Court is satisfied that a 1/3rdshift premium applied to the Complainant in his role as Line Manager with a requirement to work on nights when he was employed in that role in September 2010 and that when he opted to transfer to a day/evening role in January 2015 he no longer attracted the night shift premium. Accordingly, the Court does not find that there was an unlawful deduction made.
The Court concurs with the Adjudication Officer’s findings, upholds her Decision and rejects the Complainant’s appeal.
The Court so Determines.
Signed on behalf of the Labour Court
2 August, 2016______________________
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.