ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023998
Parties:
| Complainant | Respondent |
Anonymised Parties | General Operative | Medical Company |
Representatives | Self | Ciaran Aherne, A&L Goodbody Solicitors |
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-00030663-001 | 05/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00030663-003 | 05/09/2019 |
Date of Adjudication Hearing: 05/12/2019, 10/12/2019 & 02/03/2021
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant is employed by the respondent as a General Operative on a permanent full-time basis. Employment commenced in January 2005. The respondent employs 750 employees. The complainant’s employment operates on a shift basis. The complaints are in relation to the rate of pay applicable to overtime working. |
Summary of Complainant’s Case:
The rate for overtime as set out in the complainant’s contract is time and one half for the first four hours and double time thereafter. The respondent did not pay any overtime to the complainant between 2010 and 2016. From the beginning of 2017 the respondent paid 6 hours per fortnight at time and a half. Currently there is a shortfall of 4 hours payment in respect of Saturday nights worked. The complainant works 12/13 nights per annum resulting in approx. 48 hours underpayment per annum. The contract of employment is deficient in a number of respects. |
Summary of Respondent’s Case:
The respondent disputes both what the complainant considers to be his core working hours and the point at which the varying rates of overtime apply. Employment contracts were amended in 2010 by letter provided to the complainant. Core hours were subsequently revised over the intervening years depending on demand for the respondent’s product. The respondent pays generous overtime to employees in accordance with its own provisions for doing so. Contracts have been supplemented and updated by side letters to this effect. The contract of employment issued to the complainant contained all required core terms. |
Findings and Conclusions:
The complaints contained in this complaint form were part of a series of complaint forms submitted by 12 complainants, all employees of the same respondent. These complaints were originally listed for hearing over a number of days in December 2019. At the first hearing, held on 5 December 2019, there was no appearance by any of the complainants. I was told by the representative of the respondent that information had been received from the solicitors named on the complaint form as the complainants’ representative to the effect that they were no longer acting in this case and had now come off record. I noted that notices of hearing in respect of the complainants had been sent to that solicitor. Bearing in mind that other similar cases were due for hearing in a matter of days I adjourned the hearing. The next hearing, held five days later, was attended by four of the complainants without representation. Because of my concern that proper notice had not been served and because of other issues that arose I decided that the best course of action was to adjourn all matters for re-listing in the New Year. Events associated with the Covid 19 pandemic resulted in further postponements and therefore the matter was finally listed for remote hearing on 2 March 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020. The respondent employs about 950 employees in total and operates on a shift basis. The complainant commenced employment with the respondent in January 2005 as a Production Operative. The complainant is paid on a fortnightly basis. The complainant was issued with a document setting out his terms and conditions of employment dated 19 January 2005 which was signed by him. Section 3 states that it is a condition of employment that the complainant is available for and does shift work as required. The complainant’s pay is expressed as a weekly rate inclusive of shift allowance. Section 8 of the document deals with overtime as follows: Overtime rates are as follows: Monday – Saturday First 4 hours - Time and one half Thereafter Double time Sundays Double time Section 17 of the document is entitled “Changes” and reads as follows: Changes: You will be notified of any change in the above terms. This may be done individually or by circular or notice on the Company Notice Boards. There is also an Employee Information Booklet. Section 5 contains the overtime provisions which are as set out above. The wording is slightly different as instead of stating Monday – Saturday the booklet states Weekdays including Saturday. In either case, however, it is clear that Saturday is treated as an ordinary weekday. There have been changes to shift patterns and hours over the period of time that the complainant has been employed. Saturday night working was introduced in the Department in which the complainant works in 2010. The basic working week changed from 39 hours to 42 hours. Further changes occurred in the following years. In July 2016 employees, including the complainant, were informed in writing of temporary changes to their contracts whereby their hours of work would consist of a 4-cycle shift pattern excluding Saturday nights (average 39 hours per week). The weekly wage was reduced accordingly. In October 2016 these employees were informed that because of increased business demands their terms and conditions were being changed as it had been decided to revert to a shift pattern that included Saturday nights with an average of 42 hours per week. The employees were also advised that their weekly wage was accordingly increased. It is common to both submissions that since January 2017 the respondent has paid 3 hours overtime at time and a half per week in respect of the employees working the 42-hour week. Section 5 of the Payment of Wages Act, 1991, provides as follows: 5(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless – (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it. Section 5(6) provides: (6) Where (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, Then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. Wages are defined in Section 1 of the Act as: Any sums payable to the employee by the employer in connection with his employment, including (a) any fee, bonus or commission, or any holiday, sick or maternity pay or any other emolument, referable to his employment…… In order to ground a claim under the Act it is first necessary for me to determine what wages are properly payable under the contract in accordance with the High Court decision in Dunnes Stores (Cornelscourt) Ltd. v Lacey (20070, 1 IR 478. The complainant submitted his complaint form to the WRC on 5 September 2019. This form contained two complaints, CA-00030663-001 under the Payment of Wages Act, 1991 and CA-00030663-003 under the Terms of Employment (Information) Act, 1994. During the course of the hearing on 2 March 2021 the complainant withdrew complaint CA-00030663-003. The complainant’s case contained in CA-00030663-001 is that the only contract that he signed was that issued to him in 2005 when he commenced employment and that from 2010 he has not been paid overtime payments in accordance with the provisions of that contract, particularly with regard to the weeks of his shift wherein he works on Saturday nights. It is further stated that Saturday night shifts were introduced in 2010. The complainant’s claim for compensation dates back to that event. From further documentation from 2016 it is clear that the requirement to work Saturday nights fluctuated with demand for the respondent’s products and that consequently the core working weekly hours also fluctuated between an average of 39 hours and 42 hours. The shift pattern is based on an 8-week cycle and in the case of an average 42-hour week incorporates 4 x 48-hour weeks and 4 x 36-hour weeks. The Saturday night working occurs during the 48-hour week. The employees concerned are in receipt of a shift premium of 34% above day workers and a shift differential to reflect the fact that they work that particular shift cycle. I accept that the complainant may not have been happy with how this process was managed by the respondent and that indeed in 2016 the respondent acknowledged that there was confusion amongst employees regarding working hours and overtime arrangements. That however is not the matter before me. The complainant’s contract which was issued to him in 2005 did not contain a reference to weekly working hours but the Employee Information Booklet states that “all employees must work a total of 39 hours prior to receiving an overtime payment.” The contract also states that the complainant will be notified of any changes in the above terms. In 2010 the respondent introduced a basic average 42-hour working week in the complainant’s department. This included 2 new Saturday night shifts. The employees’ wages were increased to reflect the additional average hours worked. Neither party produced any documentation in respect of that change. In early 2016 the respondent re-introduced, on a temporary basis, a shift cycle which excluded Saturday night working and which averaged 39 hours per week. The respondent wrote to the employees concerned advising them of the changes consequent to this decision, informing them that their terms and conditions were being changed temporarily and requesting that the letter be signed by each individual employee to signify acceptance of this change in their terms and conditions of employment. The changes outlined in the letter included changes to the basic weekly pay. On 27 October 2016 a further letter was issued giving notice of the necessity to revert to the shift pattern of an average 42-hour working week including Saturday nights and the consequent wage changes. This was to commence on 29 October 2016 until further notice. Again, employees had to sign to acknowledge and accept this amendment to their terms and conditions. The complainant signed his acceptance dated 29 October 2016. In January 2017 the respondent introduced a payment of 3 hours overtime at time and a half for all employees working the average 42-hour shift. These working arrangements were still in place at the time the complaint was submitted on 5 September 2019. Section 41(6) of the Workplace Relations Act, 2015, states: Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates. Having considered these factors I therefore must conclude that the terms and conditions of employment under which the complainant was working at the time of the complaint had been communicated to and accepted by him. There is no evidence before me that the complainant received less than the amount of remuneration properly payable to him within the cognisable period for this complaint.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint No. CA-00030663-001: This is a complaint under the Payment of Wages Act, 1991. For the reasons outlined above I am unable to conclude that any deduction within the meaning of the Act was made from the wages of the complainant during the cognisable period for the within complaint. I therefore find that this complaint is not well founded. Complaint No. CA-00030663-003: This is a complaint under the Terms of Employment (Information) Act, 1994. As stated above this complaint was withdrawn at hearing. |
Dated: 01/06/2021
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Key Words:
Payment of Wages Act, 1991 Shortfall in overtime payment |