ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000887

Complaints for Resolution:

Parties:                                Mr John O’Sullivan and Office of Public Works

At:                          Workplace Relations Commisison, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 30/03/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991 and Section 27 of the Organisation of Working Time Act, 1997 and following 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. 

The Complainant has been employed by the Respondent since 2005. He is paid €680.00 gross per week and works a 36 hour week.

The Complainant referred a complaint to the Workplace Relations Commission on 25^th November 2015 under the Payment of Wages Act, 1991 alleging the Respondent had made an unlawful deduction from his wages from 29^th May 2015. He also referred a complaint on 25^th November 2015 under the Organisation of Working Time Act, 1997 in relation to pay for both Annual Leave and Public Holidays.

The Complainant was provided with a Written Statement of his Terms and Conditions of Employment on 22^nd November 2005.

The Complaints under the Organisation of Working Time Act, 1997 were withdrawn by letter dated 30^th March and received by the Adjudication Officer after the Hearing.

Summary of Complainant’s Position.

The Complainant works 12 hour shifts over 3 days. This work is primarily “security” work on a specified site and he is paid €18.08 an hour for 36 hours. If he was assigned to a different site or if he was assigned to General Operative work at any site he continued to be paid €18.08 an hour.

However in May 2015 the situation changed. When he works as “security” he continues to be paid €18.08 an hour but if he is assigned to work as a General Operative and he works for 8 hours a day he is only paid for 6 hours at €18.08 an hour.

The Complainant lodged a complaint and a meeting took place in August 2015 but the issue was not resolved. He invoked the Stage 2 Grievance Procedure. There is an ongoing dispute between the Complainant and the Respondent as to whether the Meeting with Management in August 2015 was in fact a Stage 2 meeting.

The Complainant provided a spreadsheet of hours worked, hours paid and hours owed to him since 15^th May 2015. He also provided payslips to cover the same period as well as his timesheets.

The Complainant claims that he worked the following hours each month from May 2015 and the actual hours paid to him as follows:

                                                Hours worked                   Hours paid                          Hours owed

May 2015                             32                                           30 include 1 Sun Prem                   4

June 2015                            117                                         109.75 (3 Sun Prem)                        39

July 2015                              100                                         75                                                           25

August 2015                       112                                         96 (2 Sun Prem)                                                36

September 2015               68                                           63 (2 Sun Prem)                                                22

October 2015                     48                                           54 (3 Sun Prem)                                                18          

November 2015.              40                                           36 (1 Sun Prem)                                                12

Up to 25^th November 2015

The Complainant is claiming payment of 176 hours at €18.08 an hour = €3182.00 gross.

The Complaint under the Payment of Wages Act, 1991 was submitted to the Workplace Relations on 25^th November 2015. Therefore the period covered by this complaint is from 26^th May 2015 to 25^th November 2015 in accordance with Section 6 of the Act.

The evidence shows that the Complainant was paid an hourly rate of €18.08 an hour up to May 2015. I have examined in detail the spreadsheet, timesheets and payslips provided to me by the Complainant. These clearly show that although the Complainant works 8 hours on a particular day he is only paid for 6 hours at the hourly rate of €18.08 an hour.

Section 5 (1) of the Payment of Wages Act, 1991 provides as follows: An employer shall not make a deduction from the wages of an employee……unless – (a) the deduction…is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction …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 (c ) in the case of a deduction the employee has given his prior consent in writing to it.

There was no evidence presented to me by the Complainant that the alleged deduction effective from May 2015 was authorised to be made by either Section 5 (1) (a) (b) or (c) of the Act.

In accordance with Section 41 (4) of the Workplace Relations Act 2015 and Section 6 (2) of the Payment of Wages Act, 1991 - 2015, I declare the complaint is well founded. The Respondent has made an unlawful deduction from the wages of the Complainant from 26^th May 2015 to 25^th November 2015 – the period covered by this complaint.

I order the Respondent to pay the Complainant €2820.48 (156 hours x €18.08 an hour), subject to any lawful deductions, within 42 days of the date of this Decision.

Date: 14^th June 2016