ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000404

Complaint(s)/Dispute(s) for Resolution:

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-00000614-001	03/11/2015

Date of Adjudication Hearing: 15/04/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and section 6 of the Payment of Wages Act, 1991,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant states that his Employer has reduced his weekly pay by €29.49 per week without his consent and without any basis or fact. Reductions commenced from 10th August 2015. It is argued that the respondent, as a result of disciplinary sanction, reduced the complainant’s pay without his consent, and that the reduction was both a breach of contract and an illegal deduction from his pay. The background to the issue was given. The complainant, it is argued,was never recruited as an Electrician. He began employment in general maintenance, with his role defined as “electrical and maintenance work” and his permanent contract of indefinite duration on 9th March 2009 was described as “Electrical and General Maintenance”, with an hourly rate as €16.56. In May 2015, the complainant received a notification of an investigation meeting to investigate the status of his qualifications. He had earlier in the year sought to have his apprenticeship re-registered. It is submitted that the role as outlined by the complainant is not the role of an Electrician. The pay and conditions for an Electrician are set out in the terms of the National Electrical Agreement and an Electrician would be paid far higher than the complainant, e.g. from €20.74 to €21.49 per hour. It is argued that the complainant was not hired as an Electrician, that his hourly rate has been changed unilaterally by the employer as a disciplinary sanction, and that the sanction is an illegal deduction from the complainant’s pay.

Respondent’s Submission and Presentation:

In 2013, the maintenance department in the college was re-structured. The complainant was one of a number of employees who was not selected for redundancy. The selection criteria was decided by the maintenance manager as he thought the complainant had more experience than the second person employed in a similar role. It was later established that the person made redundant was more qualified. In February 2013, the maintenance sub-committee sought to have the qualifications of all staff on record. In March 2015 it was established that the complainant was not qualified and the respondent wrote to the maintenance manager instructing him that the complainant was not to carry out any electrical work unless supervised by a qualified and competent electrician. Subsequently the respondent established that the complainant had completed phases 1,2,3,4,5 and 7 of training but had a referral on phase 6. In June 2015, the respondent conducted an investigation meeting with the complainant and his union official. The findings were issued and subsequently the respondent informed the complainant that there would be changes in his remuneration rate reflecting the rate of €16.56 per hour for 19.5 hours of unqualified electrical work and €12.50 for 19.5 hours of general maintenance work, amounting to a composite rate of €14.53 per hour. The complainant was given the right to appeal the decision. In conclusion, it is submitted that the complainant does not have the required qualifications for the role he was hired to do and the respondent issued new terms and conditions to him in 2015 to reflect his current qualifications.

Decision:

I note the background to this dispute between the complainant and the respondent employer. It would appear that a misleading situation developed where the respondent was under the impression that the complainant was a qualified electrician. The issue was referred as a complaint under the Payment of Wages Act 1991 and I am confined to making my decision under that Act.

Section 5 governs the regulations of deductions made and payments received by employers as follows:

Section 5 (1) provides:

“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.”

I have considered whether the deductions made are in accordance with Section 5 of the Act. The contract of 9^th March 2009 has the title “Electrical & General Maintenance Staff”. The rate of pay is stated as €16.56 per hour. The respondent has stated that it was under the impression that the complainant was a qualified electrician, yet the hourly rate paid to the complainant was reflective of a final year apprentice. I find that the respondent cannot retrospectively change the rate and conditions of the complainant by effecting deductions from the complainant’s wages in circumstances where there is no provision in his contract of employment to so do.

I declare the complainant’s complaint to be well founded and I require the respondent to pay to the complainant the sum of €1,032.15.

ADJ-00000404