ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001150

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

Date of Adjudication Hearing: 26/02/2016

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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 the Respondent has not paid her or has paid her less than the amount due to her under her implied terms and conditions of employment since the 2 November 2015.

The Complainant commenced employment on 1 November 2007 with the Respondent as a Golf Shop Manager. The Complainant has a signed contract which states 39 hours per week averaged over 2 weeks. The Complainant stated that the terms within the contract of employment were never put into practice. The Complainant confirmed she always worked 3 days in one week and 4 days in the next week for €30,000 approximately but the Company stated it was €14.80 per hour as per the contract of employment. The Complainant stated this is her normal schedule for the past 8 years is 7 days over a 2 week period, 3 days in one week and 4 days in another week. Approximate hours are stated as below due to seasonality:

April to September

• Monday - Thursday 8/8.30am to 6pm
• Friday, 8/8.30am to 7pm
• Saturday/Sunday, 7am to 4pm

October to March

• Monday - Thursday 8/8.30am to 4.30/5pm
• Saturday/Sunday, 7.30/8am to 2.30/3pm

The Complainant stated that in January 2015 the GM informed staff that all staff members were getting a raise. The Complainants wages had remained unaltered since November 2007. In March 2015 the GM spoke to the Complainant regarding altering the current arrangement in the shop. The Complainant stated that there have been several meetings with the other shop employee and the Complainant both together and separately and in conjunction with the Chairman of the Board of Management [CBOM]. The Complainant stated that these meetings took place over a number of weeks and months. The Complainant stated that redundancy was mentioned on numerous occasions although she states they were told they were not being threatened. The Complainant stated that the purpose of the meetings was to push through changes to the current working arrangements in the shop. In the meeting of July 1^st, 2015 the Complainant states that she was told the Respondent wished to eliminate the part timers hours completely and that the employees would be expected to cover each other’s annual leave. The Complainant stated that when this wasn’t agreed to by her she was told that the Board would revert to ‘Plan B’ or the ‘Nuclear Option’ which was closing the shop, issuing redundancy and putting the shop out to tender. On the 12 August 2015 the Complainant stated she was told she would be expected to work every second Sunday for no additional payment. The Complainant stated that she was informed she would get 5% commission on shop sales in excess of €150,000. The Complainant states she does not currently work on Sunday and it is a day the part time employee currently works. The Complainant stated working on Sunday was not an option for her and that she was not available to work on Sundays. The Complainant stated the next communication in regards to this was a letter of 2 November 2015 The Complainant stated the Respondent implemented unilateral changes to her terms of employment resulting in the Complainant working one extra day over two weeks. The Complainant has been working the above since November 2015 under protest pending the hearing of this Adjudication case. The Complainant stated that she was then only paid for the hours she worked rather than her full salary.

The Complainant states that she does not get rest breaks as per the Organisation of Working Time Act, 1997 throughout her employment. The Complainant stated that she has not received breaks for the past eight years. The Complainant further stated that she takes breaks if and when she can but that she never gets a proper lunch breaks, usually this from October to March when it is quieter she does. The Complainant states that only one employee at any given time is on duty therefore she asks to get cover from other members of staff to cover toilet breaks. Breaks are not outlined in the Complainants contract of employment. A colleague of the Complainant, who is a Sales Assistant [SA] was a witness and SA confirmed he works in the same role as the Complainant. SA confirmed he did not get breaks at times. He stated he never received full breaks from the commencement of his employment with the Respondent which was approximately nine years ago, of which seven years were in the shop. He confirmed that he covers one day and annual leave for others on occasion. It was confirmed that he received a full dinner/€5 allowance when he commenced and takes breaks but not the full hour. It was also highlighted that the Complainant did not get a one hour lunch break as per the SI 57/1998 Organisation of Working Time (Breaks At Work For Shop Employees) Regulation, 1998.

Respondent’s Submission and Presentation:

The General Manager (GM) stated that the Complainant signed and accepted her terms and conditions of employment as per her contract. It was stated by GM that the Complainant works 24/32 hours in the winter and 36/27 hours in the summer. These hours do not account for breaks and payment is made including breaks. GM stated that the Complainants hours can be flexible and reflected her role as Golf Shop Manager. There was a practise to pay for hours worked as stated in the contract and they understood she was working the contracted hours and being paid the hourly rate as stated in her contract. The Respondent stated that the shop was loss making of approximately €18,000. The Respondent met with staff in April 2015 to discuss cost savings. In July 2015 the Complainant was met again by the Respondent and there was no agreement on the issue of paying her for hours the Complainant actually worked as per her contract of employment. The Respondent wrote to the Complainant on the 2 November regarding paying the Complainant for hours worked only from the 9 November 2015. This meant that the Complainant was working an extra one day over two weeks.

The Respondent stated that staff were paid for breaks. GM noted that there have been complaints from members regarding the shop being closed during lunch time indicating the Complainant did receive her breaks. GM further noted that he has had lunch with them as staff members during his own lunch breaks. The Complainant was the Golf Shop Manager and could schedule breaks as required. GM noted this was generally an hour of a lunch break and that it was rarely interrupted and confirmed staff do get their breaks. The Respondent stated that the pay includes breaks and generally they work less hours in the winter.

Decision:

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

Issues for Decision:

The Complainant states that the Respondent has not paid her or has paid her less than the amount due to her under the Payment of Wages Act, 1991, since the 2 November 2015.

The Complainant states that she does not get rest breaks as per the Organisation of Working Time Act, 1997 throughout her employment.

Legislation involved and requirements of legislation:

Section 5(1) and 5(2) of the Payment of Wages Act, 1991 relates to deductions from pay.

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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) Before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

The Organisation of Working Time Act Section 12 refers to breaks at work.

2. .—(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

As per Section 27(3) and 27(4) of the Organisation of Working Time Act

3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment, and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

SI 57/1998 Organisation of Working Time (Breaks At Work For Shop Employees) Regulation, 1998.

In relation to the following class of employee, namely, an employee—

(a) who is a shop employee,

and

(b) whose hours of work as such an employee include the hours from 11.30 a.m. to 2.30 p.m.,

the minimum duration of the break to be allowed by the employer under section 12(2) of the Act to him or her shall be one hour and that break shall, unless its commencement between those hours would result in section 12(4) of the Act not being complied with, commence between the hours aforesaid.

Decision:

The Complainant states that the Respondent has not paid her or has paid her less than the amount due to her as per her terms and conditions experienced since the 1 November 2007. The Complainant states her wages were unlawfully deducted since the 9^th November 2015 by the Respondent. The Respondent claims that they are not enforcing a deduction or reduction and state they are paying the Complainant as per what is outlined in her contract of employment.

The Complainants contract of employment stated her job title as that of Golf Shop Manager who works 39 hours based over a two week roster, signed and dated 1^st November 2007. The Complainant has worked since the 1^st November 2007 on the same hours as outlined above in her submission and has not worked 39 hours every week. It is noted that the Complainant from 1^st November 2007 to the 9^th November 2015 worked set days which did not accumulate to 39 hours per week, but she was paid for 39 hours regardless of hours worked. The contract clearly states that the rate of pay will be €14.80 per hour. There is no reference to a salary within the contract.

The Respondent has sought agreement from the Complainant and when this wasn’t forthcoming the Respondent enforced the contractual position which required the Complainant to work additional hours to total 39 hours at a rate of €14.80 per hour. The contract stated as follows: “the club reserves the right to change these hours. You will receive as much notice as reasonably possible prior to any change.” The contract does not include a clause regarding deductions from wages or reduction of wages.

The Respondent did fully engage with the Complainant as to the reported serious financial situation it was facing at the time.

As per the legislation if any of the Section 5(1) provisions are met, there is no requirements for the written consent of the Complainant to any reduction in pay. As per sub-section (b) of the Act it states that deductions are allowable where they are authorised by virtue of an employee’s contract of employment.

(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,

Therefore, by virtue of the fact that both parties entered into a contract of employment stating a 39 hour week was payable by an hourly rate of €14.80 I find that the recent action to restore the Complainants hours and corresponding paid hourly rate to that contracted is reasonable given the circumstances presented.

The Respondent going forward will pay the Complaint as per the contract of employment for the hours she works which will total 39 hours over a two week rostered period as is currently the case and these hours are to be recorded by the Respondent. Should the Respondent wish to change the working hours of the Complainant to include a Sunday it is relevant to note the hours worked on a Sunday are to be paid at double time as per the contractual terms within the signed contract of employment.

As per Section 27(4) of the Organisation of Working Time Act, 1997 ‘A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’ The Complainant did not submit her complaint regarding her lack of rest breaks before the expiry of the period of six months beginning on the date of the contravention and I do not have jurisdiction to find for the Complainant in this case as the complaint is out of time.

In line with the legislation the Respondent is required to comply with the relevant provision in keeping records for three years and in putting in place a proper procedure to ensure that employees receive their entitled breaks.

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

• The complaint that the Respondent has not paid the Complainant or has paid her less than the amount due to her under the Payment of Wages Act, 1991, is not upheld. Both parties will comply with the contract regarding hours and payment going forward.
• The complaint regarding the Complainant not received her rest breaks as per the Organisation of Working Time Act, 1997 throughout her employment is out of time. The Respondent is required to comply with the relevant provisions going forward.

Dated:   16^th May 2016