ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000086

Dispute for Resolution:

Date of Adjudication Hearing: 14/01/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and S.13 of the IR Act, 1946 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Complainant’s Submission and Presentation:

The Complainant commenced work as Mechanical fitter at the Respondent Company on 28 June 2001. By 2006, he was earning €16.50 per hour in that role.

In June, 2006. The complainant was promoted to the role of Senior Maintenance Fitter and he received a contract dated June 28, 2006 with a commencement date of July 3, 2006. The rate of pay was identified as €17.95 per hour and was conjointly signed by the complainant and the respondent on June 28, 2006 (A copy was submitted at the hearing which recorded “Your hourly rate will be euro 17.95)

The Complainant was not paid the agreed rate and instead received the rate of €17.65 per hour. This was undetected by the complainant until he consulted his contract when another issue arose. He sought to address his loss estimated at €7,647.90 both with his Managers at the time and subsequently via his Union but was unable to progress the matter to resolution. One of the contributing factors for the delay was reference to bi-located working on two sites.

The Complainants representative submitted two pay slips from the pre promotion and post promotion era in 2006 and in follow up to my request at the hearing, submitted the entire copy of the letter of offer and acceptance for the position. The pay slips from 2006 clearly demonstrate the variance in the hourly rate post promotion and the shortfall in € 17.95 per hour.

Respondent’s Submission and Presentation:

The Company disputed the claim. The respondent presented the context and background of a challenging trading back drop for the company with very narrow margins .The Company had been through a restructuring exercise which had resulted in significant job losses but was emerging slowly from these challenges.

Initially, the company understood that the contended overpayment dated from 2001 but it was common case at the hearing that the dispute centred on the payment that flowed to the complainant following a promotion in June/July 2006 i.e. the variance between € 17.65 and € 17.95 per hour.

The respondent submitted a copy of a signed letter of offer for the position of “Senior Maintenance Fitter “dated 28 June 2006. The signatures of acceptance were those of Mr P.C and Mr B, Manager and Complainant respectively. “Your hourly rate will be Euro 17.65” was outlined in Section 2, (Salary)

The respondent explained that the pay differential on promotion was agreed at 7% on the base salary of 16.50 i.e. bringing the revised salary to€ 17.65. They had no knowledge of the higher rate of €17.95 until the question of a repayment plan on an over payment was raised by the Operations Manager, Mr O .in mid 2014. At that time, the complainant desisted from agreeing a repayment plan, stating that he had raised the historical underpayment with “various managers over the years “.

The respondent submitted that the company’s policies provided for a clear protocol in the event of errors and omissions in salary.

1 Any error or omission must be communicated through an employee’s supervisor and will be corrected the following week.

2 All administrative errors will be corrected immediately.

The respondent was clear that the issue of underpayment had not been raised by the complainant prior to the question of the overpayment in 2014. They submitted a Memo to the Wages Dept. Dated 11 July 2006 which was signed by the Managing Director, Mr H.

“Mr B’s rate is changing from €16.5 to €17.65 “

They also submitted a two stage email dated 6 July 2006 from the Payroll Clerk , Ms D to Mr C ( co signature on the letter of Offer/Acceptance ) seeking a confirmation of Mr Bs’ new rate . On 7 July, Mr C replied stating “I think the figure is 17.65 euro….. 7% on top of his existing rate “

The respondent submitted that the complainant signed a revised contract of employment in 2009.

The respondent was keen to agree a repayment plan with the complainant on the 2014 overpayment as part of the resolution of this case.

Decision:

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

I have read and considered all oral and written submissions in this case. What has struck me in the first instance is the 15 year positive work history at the company. I am conscious that both parties have a strong desire to resolve this issue and move forward.

Letter of 28 June 2006

Both parties submitted the letter of offer and acceptance in their possession. The complainant submitted a photo copy which contains the exact replication of the respondents copy with two notable exceptions.

1 Salary: (Complainant)                                   1. Salary (Respondent)

Your hourly rate will be euro 17.95                 your hourly rate will be Euro 17.65

2 The location of the page numbers:

In the complainants copy, the numbers are located just above the foot note of the Company registration reference. While the respondent copy has the page numbers just below the foot note...

Neither party had the original copy to submit .The respondent did mention at the hearing that the copy in their possession was found in a records box in 2009. I appreciate that 9 years is a long time in business, however, the employment contract from 2001 was submitted.

I find that there must have been two copies of the same document which allowed both parties to maintain the positions which brought them to adjudication i.e. both parties determined they had the presiding contract. I heard from the Operations Manager that he was certain that 7 % increase was the final position from the company to support Mr B’s transition to promotion. I accept that this occurred, but it seems to have got lost in translation to paper. The complainant was never informed of the figure of 7%. This was followed by a long period of acquiescence on the €17.65 rate by the complainant until the date of knowledge of the higher figure was first established by him in mid 2014.

I find that the email of July 7, 2006 from the then Manager, Mr C to the Wages Dept. to be uncertain and taken in conjunction with the variance in the letters of offer, to constitute a mutual mistake.

In conclusion, I am mindful of the trading position of the company and the expectation of the complainant in recommending a just and equitable course of action to remedy the mistake. I find that the company intended to cap Mr Bs salary by 7% in 2006 . However, this was not communicated to him . The Company also had an opportunity to address the question of salary in the 2009 contract but the contract is silent on salary. The complainant accepted the 17.65 euro for 8 years. I note that his current salary listed on the complaint form is€ 19.50 per hour.

I recommend that the Company pay the complainant the sum of€ 3,500 to redress and remedy the expectation contained in the letter of offer and acceptance of June 28 2006. This would be in full and final settlement of the claim. I would also recommend that both parties agree a system where the complainant’s hourly rate is recorded by the company to avoid a repetition of this mistake.

Dated:   30^th March 2016