ADJ-00003978

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003978

Complaint and Dispute for Resolution:  

Date of Adjudication Hearing: 08/11/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, Section 6 of the Payment of Wages Act, 1991 and Section 13 of the Industrial Relations Act, 1969, following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.

Attendance at Hearing:

Complainant’s Submission and Presentation:

The complainant is a Dutch national and commenced work with the respondent initially as an Independent Contractor on 20 January, 2014.She accepted a permanent contract as a direct employee on 29 June 2015 and received a new contract to reflect that status she received a salary of €38,000 per annum

On 31 August 2015, the contract was replaced by an increase in working hours (without an increase in salary) and a change in the complainant’s job title.

The complainant informed the company that she was working under protest from July, 2016 as she felt that these matters were not being addressed by the company .The complainant left her employment on 16 September, 2016 as she was not being taken seriously, saw no improvement and felt stressed and unappreciated.

1 Complaint under Payment of Wages Act 1991

The complainant submitted that when she commenced employment in June 2015, she worked a 35 hour week for a Salary of €38,000 per annum. On 17 August 2015, in follow up to an earlier meeting the complainant received an email from the HR Manager confirming a 7.5 hr working day with a half an hour for lunch .This was reflected in a revised contract dated 31 August 2015. This co-incided with a change of work base to another base with an associated employer.

“Your normal hours of work are 37.5hrs (7.5 hrs per day) from Monday to Friday .You make take either half an hour or an hour break time during the working day at your discretion .The Company reserves the right to vary these normal hours of work between Monday to Friday (whether temporarily or permanently .This may be necessary to meet the particular needs of the company. You will be given reasonable notice of any changes to the normal hours of work”

The complainant objected to this planned change and was advised by a manager of the associate company that “ market leads “ would monitor the new break times by relying on trust .The complainant contended that there was no provision in her June 2015 contract to enforce a 2.5 hr increase in working time per week . This constituted a unilateral decision without consultation .The complainant stated that she was not listened to in her objection and told by the HR Manager to “ get over that “

The revised contract of 37.5 hr week was not approved by the complainant .She objected to the 8 hr compulsory clocking in day and was not free to pursue free time within this time .She did not sign the new contract, received on August 31, but felt compelled to increase her working time by .5 hr from 35 hr to 37.5 hr working week .The complainant submitted documentary evidence of working the revised hours.

Respondent’s Submission and Presentation:

The respondent disputed the claim. The respondent did not dispute the background to the case .The respondent submitted that the company was entitled to increase the working week as per the contract of employment signed by the complainant on 6 July, 2015 .They contended that there was no unlawful deduction in wages .

Clause 6.2 “ While the hours of work are as set out above , you shall be expected to devote such time and attention to the business as is necessary for the proper performance of your duties ……You shall normally be entitled to additional pay in respect of any additional hours of work ( weekend or work on public holidays )

The increase in hours was aimed at standardising the working week on the relocation of the complainant to a new work site.

The respondent contended that the claim was lodged on 8 July 2016 and was therefore, outside the statutory time limit for such claims and was statute barred, citing HSE V Mc Dermott [2014] IEHC 331.

Decision Under Payment of Wages Act, 1991 CA-00005743-001

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

Section 6 of the Payment of Wages Act, 1991 requires me to make a decision in the case.

I have listened carefully to the submissions of both parties. It is clear that the complainant was aggrieved by the company requirement to work 2.5 hrs extra per week by reducing the meal break from 1 hr to ½ hr, Monday to Friday. The respondent submitted that the decision was informed by business imperatives.

The complainant inserted the date of alleged deduction in wages was 20 June 2016 on her complaint form to the WRC, yet her oral and written evidence pointed towards the date of August 2015.

I note, in particular the signed revised contract on behalf of the respondent dated 31 August 2015. I appreciate that this document was not signed by the complainant, but together with the thread of emails issued in August 2015, I have established that the date of deduction centred on August /September 2015.

Section 5(6) of the Payment of Wages Act deals with wages properly payable, this has been definitely examined in Dunnes Cornels court V Margaret Lacey [2007]1 IR 478

( a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

( b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

This is a case where , not withstanding the merits of the case , I am bound to consider the parameters of

Section 41 (6) of the Workplace Relations Act, 2015

Subject to subsection (8), 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.

I did not hear an argument on “ reasonable cause” to support an extension of the time line and therefore , I must find that the claim is out of time as the complaint was received by the WRC on July 8, 2016. I have no jurisdiction to hear the claim .

2 Dispute under the Industrial Relations Act 1969

Claimant’s Submission and Presentation:

The claimant requested an investigation into an array of complaints regarding her working conditions with the respondent .These centred on:

1 Increased hour without corresponding increase in salary .I have already addressed this issue via the employment rights pathway.

2 The complainant did not receive a Staff Handbook, which caused her some confusion on extraneous tasks asked of her in the workplace.

3 The revised job title of Maps Data Analyst, viewed as a demotion.

4 Cessation of working from home.

5 Dilution of fringe benefits through site re-location

6 Identification of a system for performance management to replace an ad hoc system.

7 Lack of democratic structure in the company.

8 Work tests based on US requirements.

The complainant submitted that she found the working arrangement at the company confusing. The physical base was in a separate part of the city at an associate employer site, and while she reported to an associate employer team leader, a separate Vendor Project Manager (employee of the respondent) provided a day to liaison. The complainant had previously worked as an Independent contractor and was very distressed by the unilateral changes imposed on her working life. She told the hearing that she feared dismissal and was disillusioned by her treatment at work .She left the respondent employment on 16 September, 2016. The claimant had initially been represented by a Union and presented at the hearing in the company of a colleague nominated as her representative.

Respondent’s Submission and Presentation:

The respondent objected to the duplication in the Payment of Wages claim and the instant claim. The respondent further disputed the presence of a trade dispute.

Recommendation CA-00005743-002

Section 13 of the Industrial Relations Act, 1969 requires me to make a recommendation in the claim. I have listened carefully to both parties submissions in the case and I have considered the written submissions. I am satisfied that the employment relationship between the claimant and the respondent had a poor foundation. I am slow to attribute blame on the parties, preferring to analyse the circumstances of employment.

The claimant was initially an Independent contractor, which by its very nature, is an autonomous, self determining and self governing role. The claimant in this case is linked to a number of analogous claimants who contested this “Independent contractor label” in favour of employee status. The respondent has now invested in employee status for these previously cast “contractors “However, I found that there was insufficient investment by the respondent in distinguishing between the two roles once the decision was made to convert the positions.

The respondent operates a Tech company which places workers on a high profile site in a separate part of the city through an out sourcing arrangement .The respondent anticipated an acquisition of the company via Transfer of Undertakings Regulations in December 2016 and major preparations were undertaken for this, inclusive of offers of direct employment .

I am satisfied that the claimant had a Trade Dispute with the respondent at the time of referral of her claim.

The Industrial Relations Act 1990 redefined “trade disputes” as:

Any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of, or affecting the employment of any person.

Therefore, I cannot accept the respondent contention that the claim is not a Trade Dispute.

However, I have reviewed all documentation which the claimant submitted and I noted a period of illness following an accident on her way to work in January 2016 which lasted until May 2016. This meant that the claimant worked as a direct employee six months before the accident and 4.5 months after the accident. I noted a claim for compensation had been vetoed by the company, but this is not before me.

Neither party raised any issues resulting from the probationary period in the contract of service, as I understand that it was waived in the claimants case .There was provision in this for a performance review which have been of mutual assistance. The staff handbook was mentioned in the first line of the contract of employment signed by the claimant and I am at a loss as to why she was not given a copy of this from the outset.

I found that running through the entire claim was an understanding from the claimant that employees at the associate employer site were better placed and regarded than the respondent employees in terms of conditions of employment, social activities an ergonomic work environment .She described two systems of communication involving both the respondent and the associate company which caused her distress .

I did not meet any of the managers from the associate company .I found that the respondent managers were keen to make things work with their off site workforce but they had expressed a difficulty around securing engagement and were deeply engaged in the planned take-over around the time of the claimants claim before the WRC .

I cannot accept that the claimant was not familiar with pathways to address the issues of concern to her within the respondent .She had a Union to advise her who would have been familiar with S.I, 146/2000 on Grievance procedures. I would have liked to have seen this procedure activated to assist the claimant within the life time of her contract, but I could not establish that the procedure had been activated.

Given that the claimant resigned her position in August 2016 and left in September 2016, I am limited in what I can recommend to the parties. I do not consider compensation a fair or reasonable remedy in this case as I find that the respondent was not on sufficient notice of the range of the claimants individual grievances so as to be in a position to address these in a timely manner .

I am left to make the following recommendation. In the event that the claimant resumes work with the respondent within the next 6 months. She should be permitted to have a 10 day orientation and training programme to achieve a mutual understanding of the company’s expectation of her as an employee and a clearly defined disputes resolution framework for the claimant in the event that any aspect of this expectation proves contentious inclusive of

1 Support Contact Person

2 Consideration of a Collective Discussion forum , (many of the issues raised by the claimant were of collective interest)

3 Grievance Procedures

4 Coaching and Mentoring as required.

This concludes my recommendation.

Dated:   22 March 2017