ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009326
Parties:
| Complainant | Respondent |
Anonymised Parties | A Shop Assistant | A Retail & Service Store |
Complaint(s):
Act | 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 | CA-00012198-001 | 29/06/2017 |
Date of Adjudication Hearing: 22/11/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complaint relates to the correct rate of pay for Sunday work in the Respondent premises. |
1: Summary of Complainant’s Case:
The Complainant was recruited in September 2009. She maintained that she had entered into a Verbal Agreement with the then Manager Mr. A (now unfortunately deceased) that the Sunday premium would be Time plus One Third i.e. T plus 33%. The actual rate paid was T plus 30% leaving a Sunday shift shortfall of approximately € 2.08. Initially Pay slips were not forthcoming but began in late 2010. The rate was stated as “T+1/3 “.
She queried this with the Firm’s Accountant/Book keeper (Mr. X) who confirmed that the Rate was as stated in his calculations T plus 30%. This situation continued until April 2016 when the Payslips were amended and the reference to T+1/3 was deleted. The rate of Sunday Pay has continued to be T plus 30% to the date of the Hearing. The Complainant is seeking arrears of the €2.08 for all Sunday Shifts worked to the commencement of her employment.
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2: Summary of Respondent’s Case:
The Respondent accepted that a certain ambiguity could have arisen as to the explanation of “T + 1/3”. However, this was repeatedly clarified to the Complainant over the last number of years. The T + 1/3 reference was removed from the Pay Slips in mid-2016. New Contracts, (as part of a HR Reorganisation/ Modernisation in July 2011) were issued to all staff. No rate for Sunday was mentioned in these Contracts. The fact that the Pay Slips could be read in one fashion was not a reason for an Arrears claim especially when the Rate of T + 30% had been paid for almost 8 years and had been repeatedly clarified by the Respondent Book keeper (Mr.X) to the Complainant. There was also an issue of Time Limits. The Complaint form indicated a date of first omission of 18/09/2009 which is clearly outside of both a 6 and a 12 months’ reference period for Complaints under the Act. In addition, the pay slips were changed in April 2016 and the T+1/3 reference no longer appears. Even taking the April 2016 date as a reference the Complaint was lodged on the 29th June 2016 -again outside the time limits for Complaints. It was accepted that the actual Rate of Pay - T plus 30% continued to be paid. In summary, the rate had been paid for 8 years to all staff who worked on a Sunday and the Complaint had no realistic grounds to maintain that it was other than the accepted figure.
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3: Findings and Conclusions:
3:1 Time Limits : The Complainant was of the view that the rate of Pay still -to a current date being T+ 30% was sufficient to keep the claim in time i.e. the breach was continuous from 2009. On this basis and the fact that throughout the last number of years that the Complainant was not represented I allowed the claim to proceed. 3:2 Consideration of Evidence It was unfortunate that the Owner /manager who had made the initial alleged verbal agreement with the Complainant was now deceased. However, the basic fact was that the rate of pay had been T plus 30% for over 8 years now and had been clarified to the Complainant as T+30% on many occasions. Leaving aside the technical Time Limits issue I came to the conclusion that while the Pay Slip (Pre-April 2016) references were open to two interpretations the fact of the Respondent giving numerous verbal clarifications satisfied the requirement of the Act. The Complainant accepted that she had been informed on numerous occasions that the rate was T plus 30%. I noted Section 4 of the Payment of Wages Act ,1991 especially Section 4 -subsection 3 Statements of wages and deductions from wages. 4 4.— (1) An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees. (2) A statement under this section shall be given to the employee concerned— ( a) if the relevant payment is made by a mode specified in section 2 (1) (f) , as soon as may be thereafter, ( b) if the payment is made by a mode of payment specified in regulations under section 2 (1) (h) , at such time as may be specified in the regulations, ( c) if the payment is made by any other mode of payment, at the time of the payment. (3) Where a statement under this section contains an error or omission, the statement shall be regarded as complying with the provisions of this section if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.
From the evidence of the Respondent Manger I did not detect any Bad Faith or efforts to inappropriately short change the Compliant. The T+1/3 was meant in “good faith” to mean T plus 30% and as such had been paid for over 8 years to the Complainant and was the practice throughout the Company for all employees.
The Respondent noted the Adjudication Officer’s comments regarding the current contracts not specifically stating the Sunday Premium and undertook to immediately consider this issue with their HR advisors.
Nonetheless and in summary, having reviewed all the evidence both oral and written I could not find the claim, as stated, to be well founded and it is dismissed. |
4: Decision:
Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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Dated: 20 March 2018
Workplace Relations Commission Adjudication Officer: Michael McEntee