ADJUDICATION OFFICER DECISION and RECOMMENDATION

Adjudication Reference: ADJ-00005523

Complaint and Disputes for Resolution:

Date of Adjudication Hearing: 02/03/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991 and Section 13 of the Industrial Relations Acts 1946 – 2015 following the referral of the complaint and disputes to me by the Director General, I inquired into the complaint and disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and disputes.

Background:

The complainant lodged three claims with the WRC on 5 October, 2016 .The respondent made a preliminary submission in advance of the hearing.

The respondent argued that the Adjudicator could not hear the three claims presented together.

Claim 1 referred to an alleged underpayment of wages in June 2016.

Claim 2 referred to the Trade Dispute surrounding a claim for loss of earnings from 2015.

Claim 3 referred to a Trade Dispute seeking restoration of an hourly rate of pay from €13 to €15.

The respondent submitted that the Adjudicator lacked jurisdiction to hear the Payment of Wages Act complaint given that “wages payable under a contract of employment are only payable on performance of such work or service. As such it is implausible to argue that a reduction in hours “ pre factum” or before the fact, where no such hours are available and no such performance of work or service is required could rightly be considered a deduction from the wages of an employee”

The respondent took issue with the complainant’s use of the IR Act for the avoidance of time limits which they submitted are imposed with good reason on other employment related legislation .They submitted that it was not a fair or reasonable approach to lodge a claim relating to events of June 2015 in late 2016

The complainant sought to be heard on the claims and contended that the IR claims were not prohibited by time limits .The representative for the complainant contended that the wages were properly payable and unilaterally changed by the respondent.

I agreed to hear the entire case and consider the respective position of the parties in my decision and recommendations.

Summary of Complainant’s Case:

The complainant was employed as a Sacristan working 20 hrs per week in 2008 , which increased to 22.5 hrs per week. This replaced her time working as a Chef for the respondent .

The complainant submitted that in addition to her weekly duties, she was contracted to provide a presence at major feasts and ceremonies at the church incorporating Christmas, Easter and a particular novena time. This involved a 45 hr extra period of work per year until 2015 when these duties were taken over by a Volunteer.

In August 2012, the complainant agreed to a reduction in salary of €2.00 per hour from €15 to €13 on a temporary basis.

On June 1, 2016, the Union sought monies owed to the complainant in respect of the novenas in 2015 a 2016. They also sought the re-instatement of €15 per hour for the complainant.

The parties met on August 17, 2016 to address the claims .The hours owed were tabled as 64.5 hrs. No progresses was recorded and the matter was submitted to the WRC for adjudication.

CA -00007453-01 Payment of Wages Act complaint

The complainant sought unpaid wages governing the period 4-13 June 2016 of €260.

CA-00007453-002 Industrial Relations Act dispute

The complainant sought recovery of €559 in payment of the 2015 supplementary hours over the three feast periods.

CA-00007453-003 Industrial Relations Act dispute.

The complainant sought restoration of pay to €15 an hour as the reduction in pay had not been universally applied and the complainant told the hearing that she was given an expectation by an outgoing Superior that the matter of pay would be reviewed and addressed by the church.

Summary of Respondent’s Case:

The respondent refuted all three claims.

The respondent is a service church, totally dependent on donations and good will of the people for support.

The complainant is employed on a Monday to Friday basis Monday to Friday 8.30 am -1pm, 22.5 hrs. It was common case that the complainant agreed to a reduction in pay to €13 an hour on August 3, 2012.

On July 11, 2013, the complainants’ terms of agreement were altered to state that her attendance at major feasts and ceremonies would be negotiated .Volunteers had taken over the extra hours previously worked by the complainant. The Church understood this was accepted by the complainant from 2013-2016 until they received the letter from the Union.

Efforts were made to seek to resolve the situation in August 2016, but these were unsuccessful.

CA -00007453-01 Payment of Wages Act complaint

The respondent rejected the claim. They submitted that the complainant had been informed in advance of the 2016 Novena that she was not required to work and she did not work. There were no wages properly payable to her in accordance with Section 5(6) of the Act, thus no deduction occurred.

The respondent submitted that the Adjudication Officer should consider the severe financial strain on the respondent.

CA-00007453-002 Industrial Relations Act dispute

The respondent rejected the claim and drew attention to the amended terms of employment agreed with the complainant dated July 11, 2013.

The respondent submitted that this document outlined that the Feast Days at the centre of the claim were recorded as negotiable with the complainant. The complainant was aware that Volunteers were taking over the feast days.

The respondent was aggrieved that the matter had by passed the church grievance procedure in favour of Union representation

The respondent submitted that extreme financial strain experienced by the respondent, as a charity must be borne in mind.

CA-00007453-003 Industrial Relations Act dispute.

The church had no means at its disposal to re-instate the complainants’ pay to €15 .The complainant agreed to the reduction at a time when the church made a reasonable decision to reduce the rate of pay for their housekeepers, cleaners and sacristans as a cost saving measure.

The Church was participating in a large scale review at the present time. It was not foreseeable that the church would be in a position to remedy the reduction at any time in the future.

While the complainant is a valued member of the church team, the Church cannot simply afford to concede the claim at this time.

Findings and Conclusions:

I have listened carefully to the party’s oral submissions. I have also considered the written submissions. I note that the respondent is aggrieved that the complainant sought representation on her issues prior to exhausting the local grievance procedure .It was important that both parties were available to attend the hearing, recognised that the issues were serious and warranted external attention.

In relation to the preliminary issue, I found the three claims to be mutually exclusive of each other in form and content and I believe that this allows me to proceed to consider them individually

I would, however like to comment on the presentation of the parties. Both were aggrieved at how they viewed the employment relationship. On the complainant side, she believed that she had an unfair wage reduction on foot of an already shrunken income. I found that the complainant held a genuine belief that the pay cut in 2012 would be remedied in the future, such was the commitment understood by her from the previous Superior, who left in August 2014. In addition, she submitted that she had suffered a loss of income.

For the respondent part, they held a very strong view that the employees had made an agreement that wages would be reduced full stop in 2012. They were not in possession of an agreed plan to cover re-instatement at an agreed date. They believed that they were struggling financially without an end in sight.

I was particularly struck by the acknowledged lack of handover of information in relation to the complainant on the succession of the current Superior .

I have reflected on the respondent submission that I should consider the financial position of the respondent in my investigation of all claims . I have given equal weighting to the financial position as presented by the church with the deep unease expressed by the complainant on her worsening conditions of employment . I found that the most important factor was that both parties were in attendance and participative in seeking to resolve their difficulties . I appreciated that .

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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 this case.

Recommendation:

Section 13 of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.

1 CA -00007453-001 Payment of Wages Act 1991

The complainant sought a payment of 260.00 euro in respect of 20 hours during the Novena period of June 2016. Both parties accepted that the complainant did not cover that period .The complainant contended that her wages were properly payable for the period claimed .

I have considered the Terms of Agreement dated 11 July 2013 and while I note that it was not signed, both parties confirmed that it was agreed between the parties . The Agreement required the complainant to be on duty for the Feast Days .

The complainant confirmed that while she attempted to present to work during the June period of Novena in 2016 , she did not actually attend work during that time .

I find that the claim is therefore not well founded as the complainant was not on duty during the time claimed .

2 CA-00007453-002 Industrial Relations Act dispute

Both parties accepted that the Easter 2015 was the last feast day actually worked by the complainant.

There was no mention of Feast Days in the foundation contract of employment. The first mention I could establish was the “Terms of Agreement with Employees” dated 11 July 2013. The clause working days was detailed as:

“Monday to Friday (To be negotiated) + Major Feast Days and Ceremonies “

Within the list of duties, the complainant was required to be on duty for named extra curricular days in the Church Year.

I find that this drew a clear distinction between Monday To Friday 9 am to 1 pm and major Feast days .I cannot accept that the respondent understood these days were negotiable . It may have been the case that the current Superior was not briefed on these specific points by his predecessor. However, I am satisfied from the account given by the complainant that she worked the Feast Days until Easter 2015, when she was replaced by a volunteer is accurate .

The Labour Court has stated repeatedly that “no agreement is immutable” However, they have also given guidance that one agreement should stand pending replacement by another.

I do not dispute that the respondent is faced by financial challenge at present. However, it is important to uphold agreements made or seek to negotiate new ones.

I find that the complainant was replaced in her role of Sacristan by a Volunteer at Easter 2015 and I recommend that the complainant should receive a compensation payment for loss of earnings from this time , in full and final settlement based on the following calculations.

45 days x €13.00 per hour = €585.00x 2 years =  1,170 euro .

CA-00007453-003 Industrial Relations Act dispute.

The claim before the WRC relates to the complainant submission that the respondent would not discuss the matter of the claim of re-instatement of the hourly rate to €15.00. At the hearing, both parties discussed their understanding of the current impasse.

It became clear to me that the complainant understood that her pay cut was temporary and capable of “fixing “by way of upward adjustment. The respondent submitted records of other employees revision of terms between 2011 and 2012. The respondent was equally clear that the cuts were of a permanent nature without a plan to revisit .

I found that the church based the impetus for the cuts on three criteria

1 Current Economic Situation

2 Recession

3 Church Falling Income

I found no written record of a temporary reduction .The record of reduction on 4 July 2012 in the complainants case referred to “ Re:Adjustment to Contract” . It referred to a change in overtime and Sunday premium .

I did ask the parties to reflect that most companies faced with the 3 criteria outlined had begun to engage with staff again in 2017 .In many cases this had manifested in tentative pay agreements , incorporating minor increases over an extended period. The respondent was unable to commit to this approach .

I find that it is unreasonable for the respondent to stand back from a discussion on pay in the claimants case . I appreciate the Church may not be able to meet the expectation given by Fr A in the short term , however, it is vital to keep the lines of communication open .

I recommend that that respondent and the complainant engage on exploratory talks to revisit the possibility of an upward adjustment on the €13.00 per hour in line within the 3 variable criteria outlined above . These talks should take place at monthly intervals for a three month period and should be without prejudice on either side in a bid to find a mutually agreed way forward to address the impasse.

Dated:   19 May 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle