ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002714

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

Date of Adjudication Hearing: 10/01/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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).

Background

This complaint was received by the WRC on 8^th April 2016. The first hearing of this case took place 15th July 2016 but was adjourned at the request of the parties. The reconvened hearing took place on 10^th January 2017.

The complainant is employed as a security officer with the respondent. His employment with the respondent commenced on 13^th February 2003. His gross hourly rate of pay is €10.75.

1) Payment of Wages Act, 1991 CA-00003760-001

Complainant’s Submission and Presentation:

The complainant provided a detailed written submission. The submission stated that the complainant, a security officer, commenced employment with the respondent, a security and cleaning services provider, in February 2003. For more than 10 of his 12 years with the respondent were spent working as a security officer/front desk attendant in the headquarters of a large financial institution.

The complainant has suffered with serious illness in recent years and had been out of work for some time. Having returned to work all was going well until February 2015 when he was informed that he would no longer be doing desk duties and his role would be that of a security officer only. He was also informed that he would now be working 31 hours per week instead of the 40 stipulated in his contract. However, the complainant submitted that his manager confirmed to him that he would continue to be paid for 40 hours and would not suffer any loss of earnings.

The complainant accepted this verbal commitment from management and continued to work this arrangement until July 2015, when his July payslip indicated a cut in wages.

When the complainant enquired about this change he was told that a decision to pay him for hours worked only had been made by his new manager (his previous manager had left the respondent company shortly before).

The complainant sought the assistance of his union, SIPTU, and it was only after the union had intervened that the respondent had the courtesy to write to him outlining the reasons for their decision.

The complainant submitted that, his pay be restored to 40 hours per week and that, in line with the Payment of Wages Act he be compensated for his loss, roughly €100 per week, since July 2015.

Respondent’s Submission and Presentation:

The respondent provided a detailed written submission.

The respondent submitted that the complainant was employed as a security officer and had been working at the access gate of a client company's headquarters. In 2015 it came to the client's attention that certain people were being allowed access to the premises without the issuing of ID cards, which resulted in the client company instructing that the complainant be reassigned to another job, which he was, on the same site.

In June 2015 it came to the attention of the respondent that whilst the complainant was working 33 hours a week he had been in receipt of payment for 40 hours per week.

The respondent submitted that they had raised the issue with the complainant who maintained that he had a verbal agreement with the previous manager that he would work 33 hours but would be paid for 40 hours.

On investigation the respondent found no evidence of any such agreement. The respondent wrote to the complainant in October 2015 explaining that as no evidence of an agreement could be found the respondents pay would have to be adjusted to reflect the hours actually worked. However, the respondent did not seek repayment of the hours that the complainant had been overpaid and that remains the position as matters stand.

There was further communications between the parties in the following months in relation to the reduction in pay and the reduction in hours and it was the respondent's submission that a number of alternative roles were offered to the complainant to bring his hours back up to 40 hours per week but none of these alternatives were deemed suitable by the complainant. As no resolution could be found the matter was referred to the WRC.

The respondent's position is that all security officers are paid on the basis of hours worked. The respondent cannot charge back additional hours which are not worked to the client. It is the respondent's view that they had a right under the Payment of Wages Act to seek the repayment of the overpayment. However, as it was their own mistake it was not nor is not the intention of the respondent to penalise the complainant. Notwithstanding this the respondent could not allow the overpayment continue.

The respondent did attempt to put alternatives in place but it is their contention that the complainant was not willing to work 39 hours but wanted to be paid for 39 hours.

Respondent submitted that there was no deduction of wages as the complainant was not entitled to be paid those wages in the first place and that this was an overpayment. Subsequent to the matter being raised the complainant worked reduced numbers of hours at his own choice and he is not, according to the respondent, entitled to be paid for hours he has not worked.

The respondent submitted that if the previous manager had made an agreement with the complainant re hours and pay they would be surprised as he would not have been authorised to make such an arrangement as these hours would have been charged back to the client. On investigation the respondent ascertained that these extra unworked hours were being charged back to the client. However, when the client discovered this overcharging the respondent had to amend the charges and give a credit for those hours to the client. The respondent's view is that there was no unauthorised deduction of wages as the hours were not worked in the first place and therefore no wages were due.

The respondent's position is that a person is only entitled to be paid for hours actually worked. It is clear that the complainant was not working the additional hours and was therefore not entitled to be paid for those hours. For some reason subsequent to the changes in his working hours, there was no longer 40 hours available for him but he continued to be paid on that basis even though he was not working those hours. When this error came to the respondent's attention they adjusted the complainant's payroll and he was paid only for hours actually worked. It is the respondent's view that the complainant was paid all the monies due and there has been no decoction under the Payment of Wages Act.

Findings

Legislation involved and requirements of legislation:

Section 5 of The Payment of Wages Act 1991 states;

 (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.

I do not believe that any unlawful deduction of pay has taken place; the complainant was paid for the hours he worked at the agreed rate. In fact the complainant was, for a period, paid for hours he did not work. The lack of written evidence to support the complainant's assertion that he had an agreement with his manager to be paid 40 hours pay while working only 33 hours, is telling; it would seem highly unlikely that a manager would enter into such an agreement. However, I do not doubt the bona fides of the complainant when he stated that he understood such an agreement existed.

It should be noted that since the first hearing of this case in July 2016 there has been a restoration in the hours of work for the complainant.

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.

The complaint is not upheld.

2) Industrial Relations Act, 1969 CA-00003670-002

Complainant’s Submission and Presentation:

It was the complainant stated case that he was never informed as to the reason he was taken off desk duties, thus reducing his hours from 40 to 31 per week. The complainant was also adamant that there was enough work available to justify him working 40 hours per week.

The complainant also submitted that such a change, taking away an arrangement which had been in place for several months, without any consultation was unacceptable. If the respondent wished to change his hours of work they should have discussed this with him and perhaps some alternative arrangement could have been found to protect his hours of work.

Respondent’s Submission and Presentation:

The respondent believes that as the matter is being dealt with under the Payment of Wages Act it is inappropriate that it is being dealt with under the Industrial Relations Act also. Notwithstanding that the respondent is of the view that there was no evidence of any agreement having been made and there is evidence of overpayments to the complainant after he changed from a 40 hour job top a 33 hour job.

Findings

The complaint under the IR Act relates to the manner in which the complainant was dealt with when the respondent realised the anomaly in pay and hours. It would seem to me that this matter could and should have been handled better. As an employee with more than 13 years' service the complainant should have been given the respect due. The respondent should have taken the time to meet with him in advance of realigning his pay to explain the situation. Perhaps some type of step down arrangement could have been put in place. Credit should be given to the respondent for not attempting to recoup what he believes to have been an overpayment.

Recommendation

I recommend that if the future a similar situation were to arise in the future the respondent should handle the matter in a more consultative manner.

Dated:   20 March 2017