ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00013327
A Language Teacher (6)
A Language School
Murchan & Company, Solicitors
McInnes Dunne, Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 09/10/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
This is one of nine similar cases taken by this complainant and eight co-workers who are employed as language teachers.
The background lies partly in a purported change in the complainant’s contract of employment and ensuing events and also in cost reduction measures which were applied some years ago and which the complainant says were due to be reversed when the financial position improved.
Summary of Complainant’s Case:
There are several complaints under the Payment of Wages Act and another under the Industrial Relations Act.
The first relates to the failure of the respondent to restore a reduction in pay made in 2010.
At the time, the complainant and her colleagues agreed to the reduction on the basis of a commitment that in due course, when the respondent ‘s financial position improved, the cut would be restored.
The second relates to a 2% pay increase to which the complainant says she was entitled every two years as a matter of contractual entitlement.
In 2016 the respondent sought to change the complainant’s contract of employment. There were direct discussions and a mediation but the complainant and her colleagues did not agree to any change in the contract.
Nonetheless the respondent proceeded as if a proposal to remove the entitlement to a 2% salary review every two years had been agreed or in any event did not apply. The increase due in 2017 was not paid in September 2017.
A complaint has been made under the Industrial Relations Act alleging unacceptable conduct by a senior manager of the respondent (who is no longer employed).
The complainant says that she and her colleagues were subjected to regular pressure, bullying and harassment to persuade them to accept the new contract, even though this would have meant a worsening in their working conditions.
Summary of Respondent’s Case:
The respondent says that it had made extensive efforts to resolve matters with the complainant (and her co-workers). These included an internal consultation process and a mediation conducted by an external mediator.
Regarding the complaints under the Payment of Wages Act the respondent says;
The pay reduction in 2010 does not fall within the jurisdiction of the Act which is concerned with deductions from wages (Section 5(1)). This does not concern an unlawful or any deduction from wages and the complainant agreed to accept the reduction which took place in 2010. The actual complaint is that the respondent has not reviewed this reduction which is not a matter that arises under the Act.
The respondent denies that there was any commitment to review this.
Next, regarding the 2% increase the respondent says that while previous contracts did contain a commitment to pay a 2% increase every two years, their current contracts of employment do not. The complainant was notified of the coming into force of the revised contract of employment on February 6th 2017 and at no stage did she raise any objection to it. The new contract incorporated provisions that had been discussed and agreed in the mediation process and also some additional benefits of which the complainant had availed.
There was no objection to the contract until June 30th 2017 and the respondent feels it is entitled to interpret the complainant’s silence as acquiescence.
In relation to the compliant under the Industrial Relations Act this is a general allegation that the complainant and her colleagues have been ‘the subject of bullying and harassment’ by management and in particular by a previous Director who has since left the respondent’s employment.
His replacement met the complainant (and others) soon after his appointment to establish good working relationships with them and at no stage did she or anyone raise the matter of the alleged bullying.
The only correspondence received by the respondent was in relation to a third party who, it had mistakenly been believed was given a disciplinary warning.
There is an obligation on any employee to process any such complaint internally so that it can be properly investigated. The respondent was never given the opportunity to do so.
Findings and Conclusions:
The complainant and her co-workers have found themselves in a WRC process not entirely suited to resolving their various grievances. They are fully entitled to pursue their complaints, of course, but the range of issues raised is primarily a testimony to a failure of industrial relations in their workplace.
In particular, the issue raised about the restoration of the 5% reduction in wages in 2010 falls into this category and not under the Payment of Wages Act.
Most of this turns on the proposed new contracts. Discussions on the new contracts began in April 2016, there was a mediation process, and yet between them the parties could not reach a clean understanding of where things stood; with on the one hand the respondent assuming that the complainant and her colleagues had agreed or acquiesced and the employees locked in a sullen silence unable to communicate simply as to whether they had or not.
Contracts of employment are, legally speaking the same as any other contract. Once agreed, they can only be varied by consent of the parties. Imputation of acquiescence or other sleight of hand will not suffice especially where the clear purpose of this is to secure the removal of a contractual entitlement to a pay increase.
The alleged improvements imputed to be in the ‘new’ contracts in relation to additional time off were hotly disputed and I do not believe there were any such improvements.
I find therefore that the necessary consent to vary the contracts was not secured and the operative contracts are those which pre-dated the process commenced in April 2016.
However, this issue had been raised under the Payment of Wages Act and the question is whether the failure to apply an increase to which an employee is contractually entitled is a deduction from their wages.
In its ordinary meaning that it is not and I find that on these facts it is not a breach of Section 5. I return to this in relation to the complaint under the Industrial Relations Act in an attempt to assist the parties.
The specific matter raised under the Industrial Relations Act relates to the fall out from the contract discussions. The failure to process the complaint at the level of the workplace means that it cannot be dealt with at first instance in a WRC Adjudication. This is a critical requirement before an industrial relations issue becomes justiciable.
That said, and arising from discussions at the hearings and the parties’ wish to move forward I make some recommendations to assist them.
In the first place, while organisations struggling with business challenges may seek to reduce overheads in any way they can, the attempt to do so by removing a contractual entitlement to a very small pay increase requires clear, and specifically stated informed consent.
The failure by the respondent to substitute some new procedure for pay determination to replace the one it wished to remove displays a certain lack of imagination as to how to ‘win friends and influence people.’ This is especially regrettable as relations between the complainant, her colleagues and the respondent were amicable enough and their level of commitment was acknowledged by the respondent.
They all need to start again and my recommendation will be as follows.
Taking as a starting point that the ‘new’ (February 2017) contract has not been agreed and is not validly in force, both parties should enter into an externally facilitated and time limited process to look at all outstanding issues between them; an appropriate pay determination system, and any other changes either party wishes to see. The facilitator should have a background and expertise in industrial relations matters or the services of the WRC Conciliation machinery might be considered.
There is no great science about this; if the respondent wishes to replace the commitment to specific increases it can surely not expect to do so without agreeing an alternative.
I recommend that, as a good will gesture and in advance of the facilitated processes it pay the 2% increase.
The complaints under the Payment of Wages Act are not upheld.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
For the reasons set out above I do not uphold complaint CA-00017499-001.
My recommendation in respect of dispute CA-00017499-002 is as follows;
Both parties should enter into an externally facilitated and time limited process to look at the outstanding issues between them which formed the basis of this reference; an appropriate pay determination system, and any other relevant changes either party wishes to see.
The facilitator should have a background and expertise in industrial relations matters or the services of the WRC Conciliation machinery might be considered.
I recommend that, as a good will gesture and in advance of the facilitated processes the respondent pay the complainant the 2% increase with effect from the date it was due.
Dated: December 17th 2018
Workplace Relations Commission Adjudication Officer: Pat Brady
Payment of Wages Act, pay determination