ADJ-00007159

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007159

Parties:

 Complaint(s):

Date of Adjudication Hearing: 20/06/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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 complaint.

Background:

The Complainant commenced employment with the Respondent, a fashion retailer on 20 October 2014. His employment ended on 20 August 2016 at which time he was a floor manager. His net fortnightly rate of pay was €1,000. The Complainant made three complaints to the WRC which were received by the WRC on 15 February 2017.

CA 00009734-001 Complaint made under section 27 Organisation of Working Time Act, 1977.

Summary of Complainant’s Case:

The Complainant believes that he is still owed payment for annual leave days which he did not take in 2016. The Complainant stated that his annual leave entitlement was 20 days and that he had carried six days leave into the 2016 leave year. By the time that his employment ended he had accrued another 14 days leave bringing the total days leave he had earned to 20. In his view he had taken less than 20 days annual leave in 2016 by the date of his departure from the Respondent's employment.

In response to a question the Complainant reckoned he had taken somewhere between15 and 20 days leave in 2016.

The Complainant did not have any documentary evidence to support his claim.

Summary of Respondent’s Case:

The Respondent provided a detailed written submission.

The Respondent submitted that the Complainant commenced work in October 2014. From October 2014 to December 2014, no holidays were taken. In 2015, 20 days holiday were taken. In 2016, 13 days were taken. The Respondent submitted that the Complainant was paid in respect of all holidays taken. In his final payslip dated 21 August 2016, he received payment for 5 days untaken holidays. In total he was paid for 135 hours of holidays for 2016.

The Respondent does not believe the Complainant is entitled to any further holiday pay. The Respondent provided copies of the Complainant's payslips for 2016, including the one dated 21 August 2016 to support this position.

Findings and Conclusions:

The Respondent displays much greater clarity in relation to the question of holiday pay entitlements. The Complainant was not sure how many days' holidays he had taken in 2016. The Respondent on the other hand had documentary evidence to support his case.

Decision:

Section 41 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.

On the evidence adduced I do not believe the Complainant is owed any holiday pay, therefore his complaint under the Act fails.

CA 00009734-002 Complaint made under section 11 of the Minimum Notice & Terms of Employment Act, 1973.

This complaint was withdrawn by the Complainant at the outset of the hearing.

CA 00009734-003 Complaint made under section 6 of the Payment of Wages Act, 1991.

Summary of Complainant’s Case:

The Complainant submitted that there was a procedure in place in his workplace known as "commitment time". The Complainant gave an example of how this "commitment time" worked; he would be rostered to start at 08.30hrs but would only receive remuneration recognition for a 09.00hrs start time. This 30 minute (sometimes only 15 minute depending on shifts), gap was known as "commitment time". He never received remuneration for this even though he was required to perform work duties by the Respondent during this time.

The Complainant contends that his statutory and contractual rights were contravened and that he is due pay in respect to these extra hours worked. The Complainant believes the monetary value of the pay not received to be €3,352.87.

In reply to questioning from the Respondent the Complainant stated that he had received his contract of employment and payslips. He also agreed that he had been told about "commitment time" when he interviewed for the job with the Respondent, he was told he would have to work for 15 minutes unpaid. When asked whether all employees do "commitment time" he said yes but was not sure if it was possible other employees did not do it. He also agreed there were times he did come in early and got paid for this but he stressed he never got paid for "commitment time".

The Complainant agreed that doing "commitment time" was a way of showing commitment and a willingness to progress within the company. He was also aware that it was voluntary but that some people were "put on it".

The Complainant stated that he had never raised "commitment time" as an issue "because he wasn't aware it was illegal". He did know there were awards given to employees at the awards ceremony under the category of "commitment time" but no one got such an award in his branch.

In closing the Complainant suggested that employees should be paid for doing "commitment time" or should have been rostered in half an hour earlier.

Summary of Respondent’s Case:

The Respondent submitted that approximately seven years ago he noticed that certain employees were coming in earlier than required to ensure they were ready to commence at their contracted start time. In order to give official recognition to such employees a policy was introduced called "commitment time" whereby employees could voluntarily sign up to be in work between 10 and 30 minutes before their shift commenced and were given recognition for this. It was, according to the Respondent, at all times made clear that this was voluntary. The managers of the various stores determined the appropriate time, between 15 and 30 minutes, for their respective stores depending on the size and footfall of the store. The Respondent holds awards ceremonies for its employees each year and this is one of the criteria taken into consideration.

The Respondent also submitted that during the course of his employment the Complainant engaged in "commitment time" along with other employees. Others chose not to so engage. The Complainant at no point raised any issue with his employer in regard to this policy. The Respondent put forward that at all times he was receptive to receiving feedback, complaints suggestions, queries or applications from employees and received emails in respect of other matters from the Complainant.

In direct evidence the Managing Director of the Respondent employer explained the rationale behind "commitment time". He stated that if a store opens at 09.00hrs then people come in at 08.45hrs to get ready- he tried to measure this and award people who gave extra hours. He stated that "commitment time" is mostly for managers and it is discussed at intake interviews. He stressed that there had never been any complaints about "commitment time".

In response to questions from the Complainant, the Managing Director stated that it was not a company directive and no written warnings had been issued in relation to "commitment time".

The Managing Director re-iterated that "commitment time" was voluntary and was never expected of managers or staff.

A store manager also gave evidence. She stated that her understanding of "commitment time" was that it was not compulsory nor were there ever any repercussions for anyone who did not do it. She stated that staff knew it was voluntary.

In closing remarks the Respondent stated that the Complainant was aware of the "commitment time" policy from the outset of his employment and that there had been no deduction from his contractual wage, he accepted it was a voluntary policy and he used it to show his commitment for promotional reasons.

Findings and Conclusions:

Section 5 of the Act states;

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.

In this instance the question is whether there was an illegal deduction of pay made by the Respondent?

It would seem to me that "commitment time" is a voluntary commitment given by some staff, normally managers, who wish to show their commitment to the cause and in an effort to progress within the organisation. The Complainant was aware of the notion of "commitment time" form the outset of his employment with the Respondent. He never raised any grievance in relation to "commitment time" and in fact was praised by senior management for his commitment to the company.

If the Complainant had wished he could have curtailed his "commitment time" but he chose not to do so. During the hearing the Complainant did not say that he had not received his full pay but rather he should have been paid more in recognition of the hours he put in "commitment time".

Decision:

Section 41 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.

The Respondent has not breached the Act in relation to the Complainant's contractual wage as alleged. In such circumstances the Complaint must fail.

Dated:   9/8/17

Workplace Relations Commission Adjudication Officer: Roger McGrath

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