ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00020180
A security industry worker
A security company.
Barry Kenny Kenny Sullivan Solicitors
Conor O'Gorman Ibec.
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
Date of Adjudication Hearing: 07/06/2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
In accordance with Section 41 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.
The hearing of the complaint took place on 7th June 2019.
The complainant asserts that unlawful deductions have been taken from his pay. He was promoted to a new role on a higher rate of pay however, after some time he requested a transfer to a different section. This transfer was facilitated, to a role with a lower rate of pay.
There was a preliminary issue raised that the complaint was out of time due to the commencement of the new role on the 27th August 2018, leaving it outside the six month window in which a complaint can be made. However, as this is an ongoing deduction from the complainants pay the preliminary issue is disregarded.
Summary of Complainant’s Case:
The complainant outlined that he is employed by the company from November 2014. He commenced employment as a Cash Processor and in early 2017 he applied for an internal competition for a role in the Control Centre. The complainant was successful and commenced his new role on the 15th May 2017. A new contract of employment was issued for the new role.
The complainant claimed that after an incident in the Control Centre he was under considerable pressure and was working in a toxic environment. This was raised to his line manager, but he was advised not to invoke the formal grievance procedures and told to “let the issues go”. Subsequent to this, the complainant requested a transfer from his current role in the Control Centre in early 2018.
In April 2018, it was agreed that the complainant would move back to a role as a Cash Processor at his request. This was to be effective from the 27th August 2018. It is the complainant’s position that his rate of pay was not discussed until two days before the effective start date where the complainant was informed that he would be on a lower rate of pay than the role in the Control Centre.
The complainant outlined that he was not aware of his actual rate of pay until two weeks after commencing the role in his first pay cheque. This rate of pay was significantly lower than what he had been, in as his role in the Control Centre however, the complainant never raised it as an issue due to personal circumstances. The rate of pay in the new role as the Cash Processor is not in line with his original role as a Cash Processor as the complainant was transferred, at his own request, to a role with no night shifts and as a result, no night shift allowance.
The complainant also states that he never received a job description or a copy of the contract that the respondent claims they issued to him on the 27th August in respect of the transfer role.
Summary of Respondent’s Case:
The respondent outlined that the complainant commenced employment with the Respondent in November 2014 as a Cash Processor. In early 2017 the complainant applied for an internal promotion to the Control Centre and was successful. He was issued with a contract of employment for this new role, which specified a probation period of six months.
The respondent is of the position that the complainant did not fare well in his new post. He was spoken to informally on a number of occasions regarding his performance levels. This was supported through formal and informal counselling. There are signed documents to confirm this took place. On foot of this, his probation was extended to allow further time to improve.
By April 2018, the complainant’s performance had not improved, and it was agreed that the complainant would return to his role as a Cash Processor having failed his probation in the Control Centre. However, following a requested meeting by the complainant, the probation period was extended in the Control Centre.
By August 2018, the complainant still failed to meet the required standard and he returned to his role as a Cash Processor effective 27th August 2018.
The respondent is of the position that the complainant was returned to his substantive role as a Cash Processor on 27 August 2018. He was reissued a contract as a Cash Processor which commenced on that date. From that date to this he worked under that contract of employment on the rate of pay in line with the role profile.
The respondent outlined that there is a collective agreement in place with SIPTU in regard to rates of pay and their corresponding roles.
Findings and Conclusions:
For completeness, I have considered the claim of unlawful deduction from the complainant’s wages. The complainant is of the belief that the role of Cash Processor he transferred into, as per his request, was a demotion and he is in receipt of a lesser pay. The difference between the rate of pay in the Cash Processor role and the rate of pay of the role in the Control Centre is the unlawful deduction the complainant refers to.
The complainant states he was not made aware of the fact that he had his probation extended and subsequently failed this probation. There is no documented proof that there was a failure of the probationary period on file.
The respondent outlines that the transfer to the role as a Cash Processor is not a demotion, rather a move back to his pre-existing role due to failed and or unsatisfactory probation in the promoted role in the Control Centre.
The complainant is seeking to receive a higher rate of pay in line with what he received in the Control Centre role. To concede to this would result in the company being in breach of its collective agreement with SIPTU in relation to role profiles and rates of pay.
Section 41 of the Workplace Relations Act 2015 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.
For the reasons set out above, I find that the complaint pursuant to the Payment of Wages Act is not well founded
Workplace Relations Commission Adjudication Officer: Jim Dolan
Payment of Wages Act / Unlawful Deductions/ Demotion