Complainant

Respondent

Parties

Joseph  Power

Limerick City and County Council

Representatives

  self

 Amanda Kane LGMA

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00063884-001

29/05/2024

The Complainant is a park ranger with Limerick City Council.  He claims that his contract of employment provides for a 39-hour week.

The dispute is about a payment over and above 39 hours amounting to 1.33 hours per week that the Complainant classes as an allowance not linked to scheduled rosters. In contrast the Council stated that the payment relates to the Complainant being rostered for a 40-hour week.

The Complainant explains the payment as part of a past practice where the payment was made for cleaning up time.

The Complainant is a park ranger with Limerick City Council.  He claims that his contract of employment provides for a 39-hour week.

The dispute is about a payment over and above 39 hours amounting to 1.33 hours per week that the Complainant classes as an allowance not linked to scheduled rosters.

The Complainant explains the payment as part of a past practice where the payment was made for cleaning up time.

The Respondent has carefully investigated the grievance and both an internal appeal and the HR Manager can find no cause to concede the claim and are satisfied that the correct payment has been always made.

The Contract of Employment does refer to a 39-hour week on a 7-day roster basis.

The Complainant states that the 1.33 hours does not relate to working 1 hour’s overtime that is rostered overtime. He stated that the payment has been made to employees recruited under the old contracts.

In correspondence dated the 13th of July 2023 the Head of Human Resources Mr Clune, wrote to the Complainant and explained that the payment was introduced in August 1992 to compensate for the additional hour worked by employees rostered to work 40 hours.

I note that section 5(6) of the Act states:

(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.

The Council’s position is more credible based on the  oral arguments made at the hearing.

I find that no amount of wages that were paid on any occasion by the employer was less than the total amount of wages properly payable to the Complainant.

The Complainant carries the burden to provide evidence to ground their complaint. The test to be applied is on the balance of probabilities. On the balance of probabilities, the payment now in dispute is more likely to arise from working 1 hour above the contractual 39-hour week. There is nothing before me to dislodge that assumption. I must find that the Complainant has not presented evidence to support his complaint that the 1-hour rostered overtime has not been paid. The Complainant stated that while an equivalent payment has been made; this payment does not relate to rostered overtime, rather to a past practice where under an old contract it was paid without working 1 hour of rostered overtime.

The Act provides redress as follows:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

or

(b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.

I find that the  complaint is not well founded.

Past Practice