ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005153

Complaints:

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-00007258-004	29/09/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00007258-003	29/09/2016

Date of Adjudication Hearing: 19/04/2017

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Location of Hearing: The Anner Hotel, Thurles, Co. Tipperary

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 6 of the Payment of Wages Act 1991 and Section 7 of the Terms of Employment (Information) Act 1994, 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 complaints.

Background:

The complainant contends that the non-payment by the respondent of the employer’s contribution to her pension scheme amounted to an unauthorised deduction from her wages in the amount of €1,621.04. She further contends that she commenced employment with the respondent on 18^th May 2015, on a transfer of undertakings and that the respondent failed to provide her written terms of conditions of employment until 1^st October 2015. The contract issued contained very different terms and another revised contract issued on 15^th February 2016 which is still not agreed.

Summary of Complainant’s Case:

The complainant’s employment transferred to the respondent under the Transfer of Undertakings Regulations on 18^th May 2015. Prior to then she was employed for 36 years with the transferor. She was assured that all conditions and entitlements would remain the same under the new employer. As part of her terms and conditions, she was entitled to be part of a pension scheme and Life Assurance which was contributed to by the employer and employee. Her former employer and the HR Manager of the new employer informed her that contributions for May 2015 were paid and that from 1^st June 2015, the employer would be deducting pension from her salary. On 23^rd December 2015, the HR Manager advised the complainant that 2015 Pension Premiums deducted were being refunded and to revert to her previous employer regarding same. He advised that he had continued to pay direct debit payments and the respondent was to reimburse him. The respondent did not pay over any of the premiums deducted from the complainant’s wages from June 2015 to December 2015 and did not contribute employers portion of the pension. Because the respondent did not reimburse the previous employer for payments paid by him from June 2015 to February 2016, he deducted in July 2016 without authorisation the amount of €1,205.73 and €1,952.73, being the employers and employees portion respectively, from fees owed to the complainant.

The respondent offered to the complainant the option of joining their defined contribution scheme, but following advice received from the respondent’s pension advisor, it was advised to her that staying in the scheme she had been in was the better option. The respondent than advised that they would continue with the pension policy, but would not pay the 5% employers annual indexation increases. On 25^th March 2016, pension deductions were re-commenced but on 8^th April 2016, the HR Manager advised that they had changed their mind and that they were not contributing to the complainant’s pension fund. They offered an additional €133.97 monthly in lieu of the employers contribution but with no indexation. The respondent also stated that this would only commence on 1^st June 2016. The complainant contends that the non-payment of the respondent’s contribution totalling €1,621.04 amounted to an unauthorised deduction from her wages.

Due to the non payment of premiums from 1^st March 2016, Life Cover of €69,835.59 has been cancelled and the Pension fund has now closed resulting in a lower level of annual retirement annuity payable from 6^th June 2020.

The complaint under the Terms of Employment (Information) Act 1994 is that despite being told by the respondent that she would get her written contract in a month from commencement, that she did not receive written terms until five months later and then the contract was unacceptable, as it did not reflect her terms and conditions which pertained in her previous job.

Summary of Respondent’s Case:

The respondent stated that stated that they had taken on the complainant under a transfer of undertakings and that very limited information had been forthcoming from the transferor. It appeared that there was no actual written contract governing the complainant’s employment. When the respondent drafted written terms and conditions, they were not acceptable to the complainant so another written contract was drafted. In relation to the pension issue, it was stated that deductions were made for pension purposes until December 2015 and the contributions from June to December 2015 were then refunded. The respondent invited the complainant to join their defined contribution scheme by email dated 27^th January 2016, in which it was also put to the complainant that she could stay with the pension fund she was in and the employer would pay their portion of contributions. However, the pension fund company “pulled the rug” and would not facilitate the complainant being in the scheme on a personal basis. The respondent then offered the complainant additional pay in lieu of the employers portion of pension contribution.

Decision:

CA-00007258-004 – Payment of Wages Act 1991

The situation in which the complainant found herself on the transfer of her employment has had very serious ramifications for her future pension situation and life cover. The complainant has referred a complaint under the Payment of Wages Act 1991 and I can only address the complaint she makes under that Act and the Workplace Relations Act 2015. The relevant section under which employers may make deductions from wages is Section 5 (1) which provides:

—(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 instant case, the deductions made for pension purposes were refunded to the complainant. I note from the evidence that there were problems with continuing the contributions with the actual pension fund company and this is a matter which may be taken up in another forum. I also note that the previous employer deducted monies from the complainant. However, this employer is not a party to these proceedings. The Payment of Wages Act governs the lawful deductions from wages which an employer can make, and in particular by reason of statute, contract or consent. In this case I do not find that the deductions, which were later refunded, were made contrary to Section 5 and I do not find the complainant’s complaint to be well founded.

CA-00007258-003-TE – Terms of Employment (Information) Act 1994

It is common case that the complainant did not receive written terms of conditions of employment within two months of the transfer of undertakings. I note the difficulties encountered in attempting to come to some amicable agreement between the parties as to the content of same. I find that the respondent has failed to provide the complainant with written terms in the time period provided and I find the complainant’s complaint to be well founded. I require the respondent to furnish the complainant with written terms of employment under the headings contained in Section 3 of the Act.

Dated: 15/05/2017

Workplace Relations Commission Adjudication Officer: Gaye Cunningham