ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004725
Complaint for Resolution:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00006435-001 | 02/08/2016 |
Date of Adjudication Hearing: 26/09/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Store Cleaner | A Contract Cleaning Company |
Complainant’s Submission and Presentation:
The complainant, a Polish National, commenced work as a cleaning operative on 2 October, 2010.She worked flexible hours over a seven day period. She was paid €9.75 per hour the complainant, along with three co workers introduced her claim to the WRC on an Equal Status complaint form. The complaint was interpreted and processed by the WRC and the complainant as a claim under the Payment of Wages Act, 1991 and the case proceeded on the approval of the respondent to this adjustment. The complainant was placed by the respondent in a large store premises, where she undertook office cleaning work.
The complainant described a 6 year duration of inconsistencies in her pay arising from repeated deductions in her wages .She submitted that this occurred due to of a lack of cohesion between the employer and the store with regard to the administration of returns from the store via the hand scanner time measurement mechanism. She had sought to address this by raising the matter with her supervisor at the cleaning contractor company the remedial action taken consisted of the issuing of a stamped form by the store which confirmed that the work was done by the complainant, this cleared the complainant for payment by the respondent. The complainant contended that she was deducted 4.5 hrs of pay dates 10 January 2016 6 March, 2016 amounting to €43.87
The complainant was aggrieved and wished to be treated with respect by her employer. As an employee of the respondent, she used the same “log in and scan in “system as the store workers and they were not deducted.
The complainant contended that she was due a refund of 4.5 hrs pay, but she asked the Adjudicator to be mindful that this was now a chronic problem among the cleaning staff and it needed to be addressed pro actively as all discussions with the respondent at local level had not generated a resolution. The hand scanner continued to yield reports in error which consequently resulted in deductions in salary.
Respondent’s Submission and Presentation:
The Company disputes the claim .In 2013, the respondent company was successful in securing a cleaning contract with a large store group. The store operates their own hand scanning time recording system and all of the respondent staff are required to record their entrance and exit to and from the site on hand scanners. This information is then forwarded to confirm what hours will be paid by the store to the respondent.
The respondent operates a fortnightly payroll based on budgeted/scheduled hours for each employee. There is a specific management system assigned to the actual payroll. One week one the scheduled hours are returned for employees and in week two, the respondent would receive the hand scanner report for that particular week/location.
The respondent submitted that this report will show the actual time an employee is on site and it can happen that this report will show that an employee may not have actually worked the scheduled hours in that particular period . In those circumstances, of time lag, the respondent submitted that they were compelled to make an adjustment to reflect the fact that a persons timesheets (scheduled hours) were overstated, placing the employee into an over payment scenario.
The respondent submitted that they had no control over this arrangement and the practice was a legacy from the previous contractor and thus well established .The store group will only act on the authentication of the hand scanner reports for payment purposes for the respondent staff.
The company disputed that an illegal deduction was made from the wages of the complainant, at the outset and contended that the respondent is entitled to act to recoup an over payment .They sought that the instant claim should fail.
Legislation involved and requirements of legislation:
Regulation of certain deductions made and payments received by employers.
Section 5 of the Payment of Wages Act, 1991.
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.
(2) An employer shall not make a deduction from the wages of an employee in respect of—
(a) Any act or omission of the employee, or
(b) Any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,
Unless—
(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and
(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and
Section 6 of the Payment of Wages Act,1991
.[(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—
(a) the net amount of the wages (after the making of any lawful deduction therefrom) that—
Section 41(8) of The Workplace Relations Act, 2015,
An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages Act, 1991 requires me to issue a decision in relation to the complaint.
I have listened to the claim on behalf of the complainant and I have considered the response from the respondent . I have reviewed the contract of employment and the pay slips for the periods at the centre of the alleged deduction in pay . I am obliged to record the results of my inquiry into this complaint in the form of this decision.
On the day of the hearing, the respondent delegation was keen to rectify the systems errors generated by the hand scanner. They were concerned that the employees (There are three associate complainants) had gone to extensive lengths to rectify the deductions without a resolution. They asked me for some time to explore a local resolution. I agreed to this reasonable request. Shortly after the hearing, the representative for the respondent submitted that the case was settled and due to be withdrawn by the complainant. This was denied by the complainants. I have, therefore moved to decision in this case at the request of the complainant .
From my examination of the circumstances surrounding the time lag and occasional system errors associated with the hand scanner, I find that this is a reasonably foreseeable series of occurrence for which the employer has not developed a contingency plan. I understand the respondents assertions that if the store does not pay them , then they are not in a position to pay the complainant . However, the central point in this case is that the hours as stated by the complainant were part of her scheduled hours agreed with the respondent. The complainants contract states;
“Your salary, taking into account the appropriate deductions and / additions; will be paid fortnightly on a Friday “
This contract was subject to TUPE regulations when the respondent became the employer in 2013.
In deciding this case, I have taken guidance from the prophetic commentary of Hogan J. in HSE V Mc Dermott {2013} IEHC 331. As he deliberated on potential parameters to statutory time limits in taking a claim before employment bodies.
Example 1
“Suppose, for example an employer made deduction X from his employee’s monthly salary from January 2010, but no compliant was made by the employees. Possibly emboldened by their passivity, the employer then commences to make deduction Y in March 2014. An employee thereafter presents a complaint to the Rights Commissioner in June, 2014 to the effect that unlawful deductions X and Y have been made from his salary from March 2014 onwards .Is it to be said that the Rights Commissioner cannot entertain any claim in relation to deduction X from March 2014, because the evidence is that these deductions commenced in January 2010?
Example 2
Suppose for example, an employer hires a young employee with little English and who perhaps has little familiarity with Irish labour rights legislation. The employer makes a series of unlawful deductions from the employee’s wages and this state of affairs continues for many years due to the employee’s vulnerability and lack of awareness of his statutory entitlements. Is it to be said that in those circumstances the employer should be permitted to continue to make these unlawful deductions every month, more or less in perpetuity ……?”
I accept that the 4.5 hrs were deducted from the complainant’s wages in contravention of section 5 of the Payment of Wages Act, 1991 rather than adjusted as contended by the Respondent ..The claim was lodged at the WRC on August 2, 2016. I have decided to extend the statutory time limits on reasonable cause grounds, in accordance with Section 41(8) of the Workplace Relations Act, 2015 with respect to the period of deduction in order to permit the complainant protection under the Act
In so doing, I have had regard for the complainants stated lack of familiarity with Irish Industrial Relations procedures, her limited knowledge of the English language and the fact that the claim was narrowly outside the jurisdiction of Section 41(6) of the Act i.e. six months from the date of contravention. I have also considered Mc Dermott
I find that the complaint is well founded and I award the complainant 4.5 hrs nett pay in compensation based on €9.75 per hour for the breach of Section 5 of the Act. While I appreciate , the Act does not permit a further discussion on the root cause analysis of the claim .I submit that it would make for good common sense and Respectful Industrial Relations that a Flow chart / Protocol is inaugurated between the respondent and the store to promote payment of salary in accordance with real time attendance at work . I make this suggestion in a rider form to canvas against the repetition of the circumstances which prompted the claim before me
Patsy Doyle, Adjudicator.
Dated: 15th December 2016