ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002647

Complaint for Resolution:

Venue: Ardboyne Hotel, Navan, Co. Meath.

Date of Adjudication Hearing: 24/05/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under 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.

Background

The Complainant commenced employment as a general assistant with the Respondent in August 2008. He was promoted to the position of Team Leader in August 2010. He was paid an additional €1.25 per hour for this role. He alleges that an unlawful deduction was made to his wages on the 20^th January 2016 contrary to Section 6 of the Payment of Wages Act, 1991. This deduction was made as a result of a sanction issued to him for refusing to carry out an instruction from his manager to download waste backup. He filed a complaint with the Workplace Relations Commission on the 25^th January 2016.

Complainant’s Submission and Presentation:

The following is a summary of the submission made by the Complainant’s representative;

The Complainant accepts that he refused to carry out a legitimate instruction from his manager to download waste backup from the shelves on a number of occasions. However he feels that the sanction issued to him by the Respondent was unfair and disproportionate. He was issued with a final written warning on the 4^th of December 2015. He was prepared to accept this sanction because of his failure to comply with a legitimate instruction. However, the Respondent issued another sanction by removing him as Team Leader with the subsequent loss in wages. He feels that this sanction was unfair and disproportionate as it resulted in a significant loss of wages, namely €41.69 per week. He feels that this part of the sanction should be removed.

Respondent’s Submission and Presentation:

The following is a summary of the submission presented by the Respondent’s representative;

When the Complainant was appointed to the role of Team Leader he received a letter of appointment stating that additional training would be provided and that he would be paid an additional €1.25 per hour for operating in this role. In addition, the letter which was counter signed by the Complainant in acceptance clearly states;

“If at some stage…your performance is unsatisfactory you will move to a general assistant role and the additional payment will cease”. In 2015 the Complainant refused to carry out a legitimate instruction from his manager to download waste backup from the shelves. A full investigation and disciplinary meeting was held in relation to these matters. Minutes were taken at the disciplinary meeting which the Complainant co-signed. It is clear from reading these minutes that the Complainant was advised that as a result of his behaviour he was going to be demoted an issued with a final written warning.

By letter of the 4^th December 2015, the Complainant’s sanction of a final written warning was confirmed. However, due to an administrative error, the demotion to a general assistant role was not included in the letter. This was rectified by letter of the 20^th January 2016 which was sent to the Complainant. This complaint was filed under Section 6 of the Payment of Wages Act, 1991 alleging an unlawful deduction in wages.

Section 5(1)(b) of the 1991 Act provides;

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless-

(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, deduction or payment.

The Complainant’s letter of appointment which formed part of his new terms and conditions of employment clearly state; “if at some stage your performance is unsatisfactory, you will move to a general assistant role and the additional payment will cease.”

The Respondent’s disciplinary procedure, which forms part of the Complainant’s terms and conditions of employments, clearly notes that a sanction for serious misconduct includes demotion.

“In certain disciplinary situations…where the sanction relates to incompetence in carrying out duties, the company reserves the right to demote/relocate an employee.” It is the position of the Respondent that the deduction is clearly in compliance with section 5(1)(b) of the 1991 Act.

Nothing in this section applies to …

(b) “a deduction made by an employer from the wages of an employee..in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision”

The Complainant was brought through he company’s disciplinary procedure in accordance with their terms and conditions of employment and was issued with a sanction of a final written warning and demotion.

Findings

The Complainant was appointed a team leader and he failed to comply with a legitimate instruction from the Respondent. He was fully aware of the consequences of his actions and that he was in clear breach of his contract of employment which clearly stated; “if at some stage … your performance is unsatisfactory, you will move to an assistant role and the additional income will cease”.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and under Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Based on the evidence presented at the hearing, I find that the Complaint is not well-founded and therefore fails. The Respondent had a legitimate right to demote the Complainant and to withdraw the additional payment that he received as a Team Leader. He failed to follow legitimate instruction from the Respondent.

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Dated:   16 August 2016