ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011546
A Catering Hostess
A Catering Company
Advokat Compliance Limited
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 08/06/2018
Workplace Relations Commission Adjudication Officer: James Kelly
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The Worker initially worked for Company X and transferred to the Employer in November 2010 pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (“TUPE”). She claims that her Sunday allowance was reduced below her previous allowance prior to the transfer of undertaking to the new employer and was also much lower than that paid by the Employer to its own staff, which was much more favourable.
The Employer said that the Worker did transfer under TUPE on 1 November 2010 and all her exact terms and conditions transferred, as was in place, at that time. She was paid 7%-8% at the time of the transfer and the previous employer has confirmed that on two occasions.
Summary of Worker’s Case:
The Worker commenced employment with Company X on February 2007 working full time on a rate of €10.51 which was subsequently reduced to 1 day a week. She claims that was paid an allowance of 16.6% for Sunday work.
She said that on her transfer to the Employer on 1 November 2010. She said she presented her line manager Mr. A with payslips showing her pay at 16.6% for her Sunday work. She said she received much less than that, and queried the rate. She said that she received a letter in June 2011 from Mr. A to say that he had sought information from Company X, who confirmed that her Sunday premium was 8%. Mr. A went on to say that she was only been paid 7% since her transfer and that she would be moved on to that 8% rate and all money owed would be paid back. She said that she complained that this information was wrong and Mr. A said he would look into it further.
She claims that she was invited to a meeting where she was informed that she would get the Employer’s premium rate of 33.3%. She said that there was a period over the next few years when she received the 33.3% and then it reverted back to the 8%. She said that she raised this with Management throughout. The Worker went out of work on a period of Maternity and other leave.
She said that she initiated a formal grievance regarding her Sunday allowance in April 2017 where she presented three payslips as samples of her pay. She was advised following the hearing that she “received incorrect Sunday premium @1.3 for the weeks dated 26/12/2016, 21/05/2014 and 14/01/2015 in error. The manual error occurred during the period when the payroll personnel was in Maternity leave/sick leave on the three occasions.” (sic)
The Worker appealed the finding and the appeal was heard on 8 September 2017. The appeal found against the Worker on the same basis.
The Worker’s case in summary is that,
1. She is entitled to retain her 16.6% Sunday Premium following TUPE, and based on that is entitled to €3,000 for the underpayment,
2. the Employer has not provided her with evidence to support their claim that she was on 7%/8% Sunday Premium prior to TUPE,
3. the Employer committed to paying her 33.3% Sunday Premium in line with its own staff and did so for period during her employment,
4. the Employer deliberately concealed evidence that she was paid 33.3% for a time, and based on that calculation she is entitled to €8,000 for the underpayment.
5. the Employer failed to deal with the Worker in a fair and proper way.
Summary of Employer’s Case:
The Employer is a private unlimited liability company that provides tailored restaurant and hospitality services.
The Employer said the Worker commenced employment with Company X on 5 February 2007 and transferred to it pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 on 1 November 2010. She resigned from her position on 21 December 2017.
The Employer claims that on the Worker’s transfer it was confirmed all her Terms and Conditions of her previous employment would remain in place and Company X confirmed to it that the Worker was a Room Assistant on an annual salary of €12,570 based on a 23-hour working week and that a rate of 7%/8% premium was paid to Room Assistants for Sunday work. Following the transfer, she was paid 7% as her Sunday Premium. The Worker queried that rate and the Employer sought clarification from Company X, who in reply confirmed that the applicable rate was 8%. The Worker’s line manager confirmed that to the Worker on 3 June 2011 and action was taken to rectify the difference immediately.
The Employer said that in 2017 the Worker raised a grievance again relating to Sunday Premium where she claims that she should be paid 16.6% from her time working with Company X and that she was promised a 33.3% Sunday Premium on her induction at the time of her transfer from Company X to the Employer. The Worker produced payslips of where she received 33.3% for Sunday work on a number of occasions. The case was investigated and it was determined she was being paid correctly as per her terms and conditions on transfer from Company X. The overpayments on occasion were due to a manual error. The Employer has a number of employees working in the same area on different terms and conditions due to TUPE. The errors of overpayment were down to when payroll personnel were out on maternity or sick leave and other unfamiliar payroll personnel stepped in to run the payroll. The Employer said that it could seek to recover those overpayments but has decided against that. The Employer said that on 30 June 2017, during the investigation, the Worker confirmed that she was aware that her Sunday premium was 8% on her transfer during the TUPE process.
In Summary the Employer said,
1. the Workers is paid at Sunday premium rates that were in place on her transfer to it from Company X at 7%/8%,
2. after this was queried by the Worker back in 2011 and Company X confirmed the rate at 8%,
3. the Worker was overpaid incorrectly on three occasions at a higher premium of 33.3% which was a manual error, which was subsequently corrected and she was returned to 8%,
4. the Worker and her case was dealt with properly and fairly at all times.
Findings and Conclusions:
Section 13 (2) and (3) of Industrial Relations Act, 1969 states,
(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.
(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—
(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and
(ii) notify the Court of the recommendation.
(b) A rights commissioner shall not investigate a trade dispute—
(i) if the Court has made a recommendation in relation to the dispute, or
(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.
Having heard all of the evidence I am satisfied that this dispute is distilled down to two main considerations.
The first relates to the Sunday Premium paid at the time of the TUPE. I have listened carefully to both parties and I note that the Employers evidence that it received a grievance from the Worker in 2010 with regard to the Sunday Premium, which was paid at 7% at the time, it then followed up with Company X and found out that the Worker should have been at 8%, which was remedied. I note that this was communicated to the worker on 3 June 2011 and it appears that the Worker failed to raise any formal complaint again until April 2017, some six years later. I am satisfied from the evidence presented that the Worker was entitled to a Sunday Premium of 8% at the time of the TUPE and after some confusion in relation to this, which was subsequently corrected after further consultation by the Employer with Company X, and accordingly the Worker is not at a loss.
The second issue relates to the payment of a Sunday Premium of 33.3%, which the Worker claims that she was promised at induction following her transfer to the Employer from Company X. She said that she was paid that sporadically during her time with the Employer and was the subject of a formal grievance in 2017. I understand that the Employer claims that the grievance was fully investigated and it was found that the Worker is not entitled to a 33.3% Sunday Premium. Also, the various periods that the 33.3% rate was paid, had been paid due to human error. I am satisfied from the evidence presented that the Worker only raised the issue of a Sunday Premium of 33.3% entitlement in 2017, some seven years after the TUPE, and some six/seven years after she claims that she was told she would receive 33.3% at her induction. I note she was paid that higher rate on occasion throughout her employment here and there. I am satisfied that those inflated payments were overpayments caused by individual human error. I am not satisfied that the 33.3% rate was promised to the Worker in 2010/2011 at her induction and if it had I would have expected that it would have been formally addressed prior to April 2017. I note that the Employer as a matter of goodwill had not sought reimbursement of those overpayments.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend the Worker accepts that she was paid the proper rates for her Sunday work while employed by the Employer. Accordingly, the Worker’s claim is not well founded and must fail.
Dated: September 26th 2018
Workplace Relations Commission Adjudication Officer: James Kelly
Industrial Relations Act 1969 – Section 13 – Trade dispute – Sunday premium rates – not well founded.