Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00008280-001

21/11/2016

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

CA-00008280-002

21/11/2016

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

CA-00008280-003

21/11/2016

The Complainant commenced employment with the Respondent on 9   January 2006 and resigned her employment with effect from 30 June 2016.

The Complainant has alleged that the Respondent's breached certain   provisions of the Payment of Wages Acts 1991 and the Organisation of Working   Time Act 1997.

The Complainant submits that she worked as a secretary at the   Respondent's national school and that an analysis of her wages shows a large   number of anomalies.

It was submitted that the Complainant is due a total of €10,558.03   comprising of unpaid wages as well as payment for public holidays and   discretionary days. The Complainant is claiming this amount.

(CA-00008280-001)

In response to the Complainant's claim in relation to alleged   underpayment of wages, the Respondent acknowledges that it has underpaid the   Complainant.

In this regard It was further submitted in evidence that the   Respondent had completed a detailed analysis of the Complainant's wages   covering the 10 years of her employment. This analysis uncovered a series of   both underpayments and overpayments. According to the Respondent's evidence,   the net effect of these under/overpayment was that the Respondent owned the   Complainant €1,709.11.

It was submitted in evidence on behalf of the Respondent that a   cheque in the amount of €1,709.11 was sent to the Complainant on 27 September   2016. However, this was returned to the Respondent by the Complainant on 4   October 2016.

The Respondent submits that the amount of €1,709.11 is the total due   to the Complainant and is willing to make this payment.

(CA-00008280-002)

In response to the Complainant's claim in relation to unpaid Public   Holidays, the Respondent submits that the cognisable period covered by the   claim is the six-month period prior to the submission of her claim to the   Workplace Relations Commission on 21 November 2016.

The Respondent   submits that the relevant leave year is defined by Section 2 (1) of the   Organisation of Working Time Act, 1997. The Respondent submits that this   provides that a leave year is the year commencing on 1 April.

The Respondent   further submits that any contravention of the Act arising from the   Respondent's failure to pay the Complainant in respect of public holidays on   the cessation of her employment, relates to entitlements accrued within the   period 21 May 2016 to 21 November 2016.

On the basis   that the Complainant's employment ended on 30 June 2016, the Respondent   accepts that the complainant is entitled to payment for the public holiday   which fell on 6 June 2016.

(CA-00008280-003)

In response to the Claimant's claim in relation to non-payment of   discretionary days, the Respondent submits that there is no statutory or   contractual entitlement to the discretionary days claimed by the Complainant   and, therefore, her complaint in this regard must fail.

(CA-00008280-001)

Having carefully considered the evidence provided in relation to the   Complainant's claim for unpaid wages, I've taken particular note of a   detailed spreadsheet, compiled by the Respondent's accountants, covering the   entire period of the Complainant's employment.

From this analysis, it is clear that over the period of the   Complainant's employment with the Respondent there were discrepancies in each   of the eleven years involved. The discrepancies involved overpayments to the   Complainant in relation to four of the years and underpayments in relation to   the remaining seven years.

The overall reconciliation of the over/underpayments demonstrates   that the Complainant has been underpaid in the amount of €1,709.11 over the   period in question. I note that the Complainant has already refused to accept   this amount from the Respondent. However, having carefully considered the   evidence presented I am satisfied that €1,709.11 represents the amount owed   to the Complainant by the Respondent in relation to unpaid wages.

In conclusion on this matter, I find it unacceptable that, in a time   when professional payroll systems are readily and reasonably, from a cost   perspective, available to employers, the payment of any employee's wages   should be subject to the level of inaccuracy and discrepancy the evidence   suggests was the case for the Complainant.

Section 4 (1) of the Payment of Wages Act 1991 states as follows:

"An employer shall give   or cause to be given to an employee a statement in writing specifying clearly   the gross amount of the wages payable to the employee and the nature and   amount of any deductions therefrom ......".

The evidence presented in this case clearly shows that no payslips   were provided to the Complainant between the commencement of her employment,   in January 2006, and December 2014. The provision of payslips only commenced   in January 2015. I am satisfied that had the Respondent been complying with   the legislation in this regard and providing the Complainant with a detailed   account of wages on a weekly basis, the series of annual   discrepancies/inaccuracies would have been avoided.

Section 4 (3) of the Act goes on to state that:

"Where a statement under   this section contains an error or omission, the statement shall be regarded   as complying with the provisions of this section if it is shown that the   error or omission was made by way of a clerical mistake or was otherwise made   accidentally and in good faith".

While it is most likely that the discrepancies/inaccuracies in the   Complainant's pay over the years of her employment were as a result of   clerical mistakes/errors, the extent to which these occurred raise questions   as to the appropriateness of the application of the waiver contained in this   Section of the Act to the Respondent on this occasion. However,   notwithstanding these concerns, I am satisfied that the Respondent did act in   good faith in relation to the Complainant's wages.

Consequently, while find that the extent of the   discrepancies/inaccuracies and the fact that they occurred in every year for   eleven consecutive years must be seen to constitute a contravention of the   Act, my decision in relation to an award in this regard is influenced by my   belief that there was no evidence of mala fides in the Respondent's actions.

(CA-00008280-002)

This element of the Complainant's complaint is brought under the   Organisation of Working Time Act 1997 and relates to her claim relating to   outstanding Public Holidays.

By the application of the time limit provided for at Section 27 (4)   of the Act, I find that the cognisable period covered by the claim is the six   months prior to the Complainant's referral of her complaint in this regard to   the Workplace Relations Commission on 21 November 2016. Consequently, the   cognisable period runs from 21 May 2016 to 21 November 2016.

During this period, the Complainant worked in the Respondent's   employment from 21 May to 30 June, on which date her employment terminated.   During the period in question the Complainant accrued an entitlement to   payment for one public holiday which fell on 6 June 2016.

(CA-00008280-003)

From a review of the available information on the Department of   Education and Skills website, it would appear that the term "discretionary days" has two   applications in the context of post-primary schools.

Firstly, there are discretionary days which apply to the school as   opposed to any individual teaching or non-teaching employee. Every primary   school is required to open for tuition for a minimum of 183 days in the   school year. While certain holiday periods throughout the school year are now   standardised, the dates for the start of the end of the school year are not   fixed. Consequently, a school may, at its discretion, use additional   "discretionary" days (usually three in number) to vary closure of the school at periods   throughout the year. However, these discretionary days are applied within the   overall requirement that a school be open on 183 days in a school year.

In the case of the Complainant, I am satisfied that in the   calculation of wages she was paid for the full complement of 183 days in each   year of employment and, therefore, no entitlement exists in this regard.

Secondly, a system exists whereby teachers who undertake personal   development when schools are closed qualify for what are called "Extra   Personal Location Days" (EPV days). These EPV days only apply to   individual teachers and not to non-teaching staff. Consequently, the   Complainant has no entitlement in this regard.

Having carefully considered all of the evidence adduced and based on   the considerations/findings as detailed above, I set out below my decision in   relation to the individual aspects of the Complainant's complaint:

(CA-00008280-001)

With regard to the Complainant's claim for unpaid wages, I find that   she is entitled to a payment of €1,709.11 in respect of underpayment of wages   during her employment with the Respondent.

Evidence presented in the course of the Hearing suggests that given   the level of the Complainant's weekly wage she is below the threshold for   PRSI/USC deductions. I direct that this matter be fully clarified with the   appropriate authorities prior to the payment being made, to ensure that the   Complainant receives appropriate entitlements in this regard.

In addition to the above, I direct that the Complainant should be   paid a sum of €750, in compensation for the Respondent's actions relating to   their failure to comply with the provisions of the Payment of Wages Act 1991,   in relation to the payment of the Complainant's wages. This payment does not   attract any deductions as it is paid to the Complainant in compensation for   the actions of her employer in this regard.

(CA-00008280-002)

With regard to the Complainant's claim for outstanding Public   Holidays, I find that the Complainant is entitled to payment in respect of   one day, in the sum of €49.20. The clarifications are set over the previous   point in relation to deductions also apply in relation to this payment.

(CA-00008280-003)

With regard to the Complainant's claim for outstanding Discretionary Days, I find that she has no entitlement in this regard and, therefore, her   complaint in this regard is not upheld.

Payment of Wages Act

Organisation of Working Time Act

Public Holidays

Discretionary Days in Primary Schools