ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014310
Complaint:
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-00018576-001 | 18/04/2018 |
Date of Adjudication Hearing: 21/08/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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.
Background:
The Complainant was employed as a Part Time Guidance Counsellor from 20th November 2017 to 12th April 2018. He was paid 1,498.25 per month. He has claimed that the Respondent has breached his contract of employment and he is seeking payment in full of his contract from 12th April 2018 to 31st August 2018. |
Summary of Complainant’s Case:
The Complainant was employed as a Guidance Counsellor since November 2017. His contract was until 31st August 2018. He is also employed full time in another school since September 2017. The Respondent was fully aware of his other job and the hours that he worked. He contacted the Respondent’s payroll section due to a shortfall in his pay for paternity leave in March 2018. The response was that his contract was terminated with immediate effect, as he had worked excess hours. He was given one week’s notice. He had not exceeded the allowable hours. He was willing to reduce his hours in the other school but the Respondent did not accept this. The Respondent’s HR department wrote stating that they were unaware that he was working 22 hours per week in the other school. He was working 11 hours for the Respondent and 22 hours for the other school. His contract of employment states that the maximum hours per week is 48. He started late into the academic year and so would not exceed the maximum hours allowable. He has claimed a breach of contract of employment. He is seeking to be paid until 31st August 2018. He received one week’s notice and is seeking an additional three as per his contract. |
Summary of Respondent’s Case:
The Respondent stated that the Complainant was employed as a part-time Guidance Counsellor on 20th November 2017 on the understanding that it was 0.5 whole time equivalent (WTE) post, 11 hours per week. It is Government and the Respondent’s policy that a teacher cannot exceed 1.0 WTE. He was employed in another school and gave a commitment that he would reduce his hours in order to ensure that he would not exceed the WTE. He applied for paternity leave in March 2018 and it was then that the Respondent realised that he had not reduced his full-time hours in the other school. This meant that he was exceeding the 1.0 WTE post. They had no option but to terminate his employment with one week’s notice as per his contract of employment. The claim was presented to the Commission on 18th April 2018 therefore the period that may be investigated is six months prior to that date 19th October 2017 to 18th April 2018. Under the Payment of Wages Act the Complainant must prove that there was an illegal deduction from his wages in the relevant period. No illegal deduction was made to his wages. His contract was terminated with one week’s notice paid. So, all wages properly payable were paid to him in line with this Act. This claim is rejected. |
Findings and Conclusions:
I find that in order to succeed with a claim under the Payment of Wages Act the Complainant must establish a contractual entitlement to the wages claimed.
I note that it is Government policy that a teacher should not exceed 22 hours which is 1.0 WTE. I note that the Complainant was working 11 hours for the Respondent and 22 hours for another school. I note the conflict of evidence regarding whether the Complainant knew about the maximum hours for a teacher. I note that his contract refers to a maximum of 48 hours per week, which was explained by the Respondent as a generic statement in contracts, in reference to the Organisation of Working Time Act. I did not find that the 48 hours applies to the Complainant’s contract. I note in the e-mail dated 21st November 2017 the Complainant refers to reducing his hours to 15 in the other school. Therefore, I find that the Complainant had knowledge of the need to reduce hours which in effect shows that he had at least some knowledge of the maximum hours that could be worked. However, if he did know about the maximum 22 hours why then would he reduce his hours to 15 not 11? I find it difficult to believe that he was unaware of the maximum 22 hours per week. I find that the reduction of hours discussed in November 2017 was not implemented by March 2018. This would lead me to believe that he failed to reduce his hours and knowingly continued to work the 11 hours + 22 hours. I note that this did not come to light until he queried a shortfall in his pay following paternity leave. I find on the balance of probability that the Complainant knowingly worked in excess of the allowable hours and therefore breached his contract of employment. In the circumstances I note that the Respondent terminated the contract. I find that he did not work beyond 12th April 2018. I find that the wages claimed for the period 12th April to 31st August 2018 were not properly payable. Therefore, I find that there was no illegal deduction from his wages. Minimum Notice Regarding the minimum notice I note that the Respondent terminated the contract of employment due to their understanding that the Complainant had breached the contract. However, they paid one week’s notice. I note that the contract of employment states, “However, in the event of serious misconduct or breach of contract on your part, the Respondent reserves the right to terminate the contract without prior notice or payment in lieu of notice”. I find that the Respondent decided to pay minimum notice. However, they only paid one week’s notice. I note that the contract provides for four weeks’ notice unless it was deemed that there was serious misconduct or breach of contract. I find that once the Respondent decided to pay minimum notice then the Complainant was entitled to his contractual entitlement of four weeks, not one week. Therefore, I find that there was an illegal deduction of three week’s wages amounting to €1,037.25. |
Payment of Wages Act 1991 Sec 6(2) states, “the commissioner shall order the employer to pay to the employee compensation of such an amount … not exceeding (a) the net amount of wages”
Decision:
Section 41 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.
I have decided that the Respondent has made an illegal deduction of €1,037.25 gross.
I require the Respondent the pay the Complainant €1,037.25 less statutory deductions within six weeks of the date below.
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Dated: 12/10/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Illegal deduction from wages |