Complainant

Respondent

Anonymised Parties

An Accommodation Assistant

A Hotel

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00008326-001

23/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008330-001

23/11/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008333-001

23/11/2016

The Complainant commended employment with the Respondent as an Accommodation Assistant on 26^th October, 2012 and she is still in this employment. The Complainant was being paid an hourly rate of pay of €9.34 upon the referral of the present complaints. The Complainant claims that the Respondent has failed to provide her with a written statement of her terms and conditions of employment contrary to the Terms of Employment (Information) Act 1994.   The Complainant claims that the Respondent has contravened the provisions of Section 14 of the Organisation of Working Time Act 1997 in relation to the payment of the Sunday Premium. The Complainant also claims that the Respondent had made unlawful deductions from her wages contrary to Section 5 of the Payment of Wages Act 1991.

CA-00008326-001– Complaint under the Terms of Employment (Information) Act 1994

The Complainant commenced employment with the Respondent as an Accommodation Assistant on 26^th October, 2012 on a 12 month fixed term contract. She continued in employment with the Respondent following the expiry of the initial fixed term contract and is currently employed on a contract of indefinite duration. The Complainant submitted that she has not been given a new written contract by the Respondent following the expiry of her initial contract and has brought this matter to its attention in a letter dated 29^th October, 2016. The Complainant submitted that the Respondent has subsequently provided her with a draft version of an updated written contract. However, she is not prepared to sign the new contract as she has concerns in relation to a number of the terms included in the document including the rate of the Sunday premium and proposed deductions from her pay in relation to meals and uniforms.

The Complainant submitted that the Respondent has failed to provide her with a statement in writing in relation to her terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act 1994.

CA-00008330-001– Complaint under the Organisation of Working Time Act 1997

The Complainant submitted that she is obliged to work on Sundays in accordance with the terms of her contract of employment. The Complainant’s rate of pay at the material time of this complaint was €9.34 per hour. The Complainant accepts that she is paid a premium of 10% for working on a Sunday. However, she claims that this allowance is not reasonable and that she should be paid a premium of 33% similar to other work colleagues who are engaged by the Respondent. The Complainant claims that the Respondent has contravened Section 14 of the Acts on the basis that the allowance which is being paid to her for working on a Sunday is not reasonable.

CA-00008333-001 – Complaint under the Payment of Wages Act 1991

The Complainant submitted that the Respondent is making unlawful deductions from her wages in relation to meals and uniforms. The Complainant claims that deductions in the amount of 0.59 cents per hour in respect of meals and €2.00 per week are taken by the Respondent from her wages. The Complainant accepts that reference was included in the initial fixed term contract which she signed in 2012 in relation to these deductions. However, she claims that she currently doesn’t have a written contract and that she had informed the Respondent about her disagreement in relation to the deductions on a number of occasions in the last 4 years. The Complainant claims that the deductions in relation to meals and uniforms from her wages are unlawful contrary to Section 5 of the Payment of Wages Act 1991.

CA-00008326-001– Complaint under the Terms of Employment (Information) Act 1994

The Respondent submitted that the Complainant signed an original contract of employment for a fixed term of 12 months in 2012 when she commenced working at the Hotel.   The contract is now of indefinite duration and in the absence of further contractual documentation represents the basic terms of the Complainant’s employment. The Respondent submitted that in 2016 the parties engaged in correspondence and discussions regarding the updating of the Complainant’s contract of employment. A revised and updated contract was proffered to the Complainant in or about October, 2016 and discussions ensued. The Respondent confirmed that the Complainant’s employment was and remains of indefinite duration. It was further clarified that the Complainant’s employment was not subject to probation as the probation period has long since passed.

The Respondent submitted that the Complainant understood the foregoing clarifications but nonetheless declined to sign the 2016 contract. She took issue with the probationary clause, the Sunday premium and deductions in relation to meal allowances and uniforms set out in the contract. The Respondent submitted that with the exception of the probationary clause (which was expressly waived) the provisions in relation to the Sunday premium, meal allowances and uniform hire deductions remained the same as those which have always applied to the Complainant’s employment. The Respondent submitted that the parties were unable to reach agreement on the foregoing issues as a result of which the Complainant has made the present referral.  

The Respondent submitted that in the circumstances there has been no breach of Section 3 of the Terms of Employment (Information) Act 1994 insofar as the Complainant’s terms of employment have been reduced to writing and are regulated by a contract signed in 2012.

CA-00008330-001– Complaint under the Organisation of Working Time Act 1997

The Respondent submitted that the Complainant’s rate of pay has been carefully calculated to reflect her Sunday premium entitlement. The Respondent’s General Manager has set out the applicable calculation of her rate of pay in a letter to her dated 19^th October, 2016 details of this calculation are set out hereunder):

“The Company calculates and allows for Sunday premium in the following way:

€9.15 per hour (minimum wage) x 10% (Sunday premium) = €0.915

€0.915 x 8 hrs (full Sunday shift) = €7.32

€7.32 divided 39 hour week (full working week) = €0.1877 per hour

€9.15 plus €0.1877 = €9.34 per hour”

The Respondent submitted that the calculation and mode of payment of the Sunday premium as set out in the 2012 contract (and repeated in the 2016 revised contract) are based on the law applicable to such payments as applied in 2012. The Respondent submitted that the applicable rates were in strict compliance with those laid down under the JLC system which was then in force. The Respondent submitted that at present there are no further collective agreements or other regulatory agreements in force, referable to the Complainant’s employment, as contemplated by Section 14 of the Acts.

The Respondent submitted that the Sunday premium applied to the Complainant’s rate of pay has been mathematically calculated, is readily ascertainable and has been specifically agreed in writing in 2012. The Respondent further submitted that the Sunday premium which has been paid without complaint since 2012, is in full compliance with Section 14 of the Acts and therefore, the complaint should be dismissed.

CA-00008333-001 – Complaint under the Payment of Wages Act 1991

The Respondent submitted that the deductions in relation to meal allowances and uniform hire are clearly set out in the 2012 contract signed by the Complainant and have been made since that time without complaint or protest by her. The Respondent submitted that the deductions are clear and readily ascertainable and are both fair and reasonable in their terms. The Respondent submitted that the Complainant, for the first time since commencing her employment, took issue with these deductions by direct engagement with management in late 2016. It is contended that the Complainant has shifted her position in relation to the meal allowances as initially she had asserted that the allowance was to be discontinued during and as a result of her pregnancy in 2016. However, it appears that she now takes issue with the allowance altogether and no longer wishes to be bound by the relevant provisions in the 2012 contract or the revised contract proffered in 2016.

The Respondent contends that the meal allowance was calculated exactly in accordance with the state of Irish law in 2012 when the Complainant commenced her employment and that the same is fair and reasonable in its terms. The Respondent has no difficulty in adjusting or suspending the deduction arrangements for specific medical and/or pregnancy related reasons. Indeed, in the event of an employee wishing to decline food or beverages of any sort whilst at work, the Respondent does not seek to deny this right. However, the Respondent questions the wisdom and workability of such an arrangement in practice. The Respondent submitted that were the allowance to be abandoned completely in the case of the Complainant, it follows that the Complainant would not avail of or would not pay individually and separately, for any food or beverage of whatever nature, provided or made available by the Respondent. In such circumstances, the Respondent contends that removal of the allowance altogether would be problematic and may not deliver a satisfactory outcome for the Complainant.  

As regards the deduction for hire of uniforms, The Respondent submitted that this matter is provided for in the 2012 contract and the revised contract proffered in 2016 and that the deduction is fair and reasonable in all of the circumstances.

CA-00008326-001– Complaint under the Terms of Employment (Information) Act 1994

The Complainant has claimed that she did not receive a written statement of her terms and conditions of employment from the Respondent contrary to Section 3 of the Act. In considering this matter, I note that the Complainant commenced employment with the Respondent on 26^th October, 2012 on a fixed-term contract for a period of 12 months which was due to expire on 25^th October, 2013. It was not in dispute between the parties that the Complainant was furnished with a written contract of employment by the Respondent shortly after she commenced employment which set out details of the terms and conditions of her employment. I note that this written contract was signed by the Respondent on 26^th October, 2012 and by the Complainant on 19^th November, 2012. I have examined the terms of this written contract and I am satisfied that it contains relevant information in relation to the material particulars provided for in paragraphs (a) to (m) of subsection (1) of Section 3 of the Act. I therefore find that the Respondent has not contravened the provisions of Section 3 of the Act in the circumstances of the present case.

CA-00008330-001– Complaint under the Organisation of Working Time Act 1997

The first issue that I must consider in relation to this complaint relates to the Respondent’s contention that the complaint has not been referred to the WRC with the proscribed time limits in the legislation. The time limits for the presentation of a complaint under the Organisation of Working Time Act 1997 are governed by the provisions of Section 41(6) of the Workplace Relations Acts 2015. Section 41(6) provides that “… an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. This section provides, in effect, that a complaint may not be entertained by an Adjudication Officer unless it is presented within a period of 6 months beginning on the date of the contravention to which the complaint relates. By application of this provision only such contraventions that may have occurred in the six-months preceding 23^rd November, 2016 are cognisable for the purpose of obtaining redress. Consequently, the reference period, for present purposes, is that between 24^th May, 2016 and 23^rd November, 2016. The Complainant was in the employment of the Respondent when the present complaint was referred to the WRC and she has claimed that the alleged contravention in relation to Section 14 of the Act were ongoing during the cognisable period. I am therefore satisfied that the complaint has been referred within the proscribed time limits within Section 41(6) and accordingly, I find that I have jurisdiction to inquire into the matter.

It was not in dispute that the Complainant was required to work on a Sunday in accordance with the terms of her contract of employment. It is clear from the written contract of employment provided to the Complainant upon the commencement of her employment in October, 2012 that she was required to work on a Sunday and that her hourly rate of pay had been calculated to include an element of compensation for working on a Sunday. I note that the Complainant’s written contract of employment (which she signed on 19^th November, 2012) indicated that she would be paid at a rate of €9.09 per hour which included a Sunday premium as calculated in accordance with the applicable JLC rate for the industry at that particular juncture. It would appear that the Complainant did not raise any issue in relation to the payment of a Sunday premium until she wrote to the Respondent in relation to the matter on 12^th October, 2016. The Respondent’s General Manager subsequently replied to the Complainant in a letter dated 19^th October, 2016 and provided clarification in relation to the applicable rate of the Sunday premium (i.e. a rate of 10%) and the manner in which her hourly rate of pay was being calculated.

The Complainant contends that the Respondent is in breach of Section 14 of the Act in that the applicable premium of 10% per hour for every hour worked as paid to her could not be considered as reasonable compensation for being required to work on a Sunday as required by the Act.

Section 14 of the Act in the relevant part provides:

“14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances …. “.

The Respondent has argued that the rate of the Sunday premium (i.e. the rate of 10%) was calculated in accordance with the applicable rates laid down in the JLC for the Hotels industry upon the Complainant’s commencement of employment in October, 2012. I have taken note of the relevant ERO which was applicable to the industry at that juncture (namely, the Employment Regulation Order (Hotels Joint Labour Committee), 2009)[1] and prior to its striking down which provided that work performed on a Sunday shall be paid for at time and a third. In the circumstances, I find that the premium for Sunday work which was applied by the Respondent at a rate of 10% during the cognisable period (i.e. the six month period prior to the referral of the present complaint on 23^rd November, 2016) was not reasonable within the meaning of Section 14 of the Act. I find that a premium calculated at a rate of time plus one third to be reasonable in all the circumstances.

Having regard to the foregoing, I find that the complaint made pursuant to Section 14 of the Act is well founded, and in accordance with the provisions of Section 27 of the Act, I require the Respondent to pay to the Complainant arrears of Sunday premium, being the difference between the rate calculated at time plus one third and the rate of 10% actually paid, for each Sunday that she worked during the six month period prior to the date upon which the present complaint was referred to the Director General of the WRC. I also order that the Respondent should pay the Complainant a further €500.00 in compensation for the effects of the breach of Section 14 of the Act.

CA-00008333-001 – Complaint under the Payment of Wages Act 1991

The first issue that I must consider in relation to this complaint relates to the Respondent’s contention that the complaint has not been referred to the WRC with the proscribed time limits in the legislation. The time limits for the presentation of a complaint under the Payment of Wages Act 1991 are governed by the provisions of Section 41(6) of the Workplace Relations Acts 2015. Section 41(6) provides that “… an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. This section provides, in effect, that a complaint may not be entertained by an Adjudication Officer unless it is presented within a period of 6 months beginning on the date of the contravention to which the complaint relates.

By application of this provision only such contraventions that may have occurred in the six-months preceding 23^rd November, 2016 are cognisable for the purpose of obtaining redress. Consequently, the reference period, for present purposes, is that between 24^th May, 2016 and 23^rd November, 2016.   The Complainant was in the employment of the Respondent when the present complaint was referred to the WRC and she has claimed that the alleged contravention in relation to Section 5 of the Act (i.e. the illegal deductions) were ongoing during the cognisable period. I am therefore satisfied that the Complainant has been referred the complaint within the proscribed time limits within Section 41(6) and accordingly, I find that I have jurisdiction to inquire into the matter.

The Complainant contends that the deductions from her wages in respect of meal allowances and uniform hire constitute unlawful deductions contrary to Section 5 of the Act.

Section 5(1) of the Act provides as follows:

“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.”

It was not in dispute that deductions in the amount of €0.59 cents per hour in relation to meal allowances and €2 per week in relation to uniform hire were being deducted from the Complainant’s wages by the Respondent. However, I note that these deductions were included in the terms of the written contract of employment which was agreed and signed between the parties at the outset of the Complainant’s employment in October, 2012. Having regard to the evidence adduced, it would appear that the Complainant did not raise any issue in relation to these deductions until November, 2016 when consultation and discussions took place between the parties in relation to the provision of an updated contract of employment. In the circumstances, I am satisfied that the abovementioned deductions were provided for in the Complainant’s contract of employment and have operated in practice throughout her employment. Accordingly, I find that these deductions were not illegal deductions contrary to Section 5 of the Act.

CA-00008326-001– Complaint under the Terms of Employment (Information) Act 1994

I find that the complaint under the Terms of Employment (Information) Act 1994 is not well founded and accordingly, the complaint fails.

CA-00008330-001– Complaint under the Organisation of Working Time Act 1997

I find that the complaint made pursuant to Section 14 of the Act is well founded, and in accordance with the provisions of Section 27 of the Act, I require the Respondent to pay to the Complainant arrears of Sunday premium, being the difference between the rate calculated at time plus one third and the rate of 10% actually paid, for each Sunday that she worked during the six month period prior to the date upon which the present complaint was referred to the Director General of the WRC. I also order that the Respondent should pay the Complainant a further €500.00 in compensation for the effects of the breach of Section 14 of the Act.

CA-00008333-001 – Complaint under the Payment of Wages Act 1991

I find that the Respondent did not make unlawful deductions from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991. Accordingly, I find that the Complainant’s claim is not well founded and must fail.

Terms of Employment (Information) Act 1994 – failure to provide a written statement of terms and conditions – Organisation of Working Time 1997 – Section 14 – Sunday Premium – Payment of Wages Act 1991 – Section 5 – unlawful deductions – Meal allowances and uniforms.