ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007042

Parties:

Complaints:

Date of Adjudication Hearing: 20/06/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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:

1) Organisation of Working Time Act CA-9580-001

Sunday Premium

Summary of Complainant’s Case:

The Complainant stated that she worked the following Sundays and hours and did not get a premium payment.

14^th August 2016               3.30pm to 8.00pm = 4.5 hours

25^th Sept 2016                    3.30pm to 8.00pm = 4.5 hours

9^th October 2016               3.30pm to 8.00pm = 4.5 hours

23^rd October                       3.30pm to 8.00pm = 4.5 hours

20^th November 2016       2.00pm to 8.00pm = 6 hours

27^th November 2016       2.00pm to 8.00pm = 6 hours

Total of 30 hours worked with no premium payment.

Summary of Respondent’s Case:

Findings and Conclusions:

I note that the Respondent has accepted that they did not pay a premium for Sunday working.

Sec 14 (1) (b) of this Act states, “an employee who is required to work on a Sunday .. shall be compensated by otherwise increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances b) by increasing the employees’ rate of pay by such an amount that is reasonable, c) by granting an employee such paid time off as is reasonable, d) or by a combination of two or more of the mean referred to in the preceding paragraph”.

I find that the Respondent has breached Sec 14 of this Act.

I find that a 20 % premium would be reasonable for this industry thus she should have receive €1.85 per hour extra.

Therefore I find that she is owed 30 hours X €1.85 = €55.50 for the economic loss.

In addition I find that she should receive compensation of €100 for breach of her rights under this Act.

Organisation of Working Time Act - CA-9580-006

Summary of Complainant’s Case:

Public Holidays

Holidays

She stated that to the end of 2016 she received 1 day. She worked 993 hours and was entitled to 8 % in holiday time = 79.4 hours. She worked 39 hours in 2017 and was due 3.12 holiday hours based on 8 %.

Summary of Respondent’s Case:

Holidays

Holidays have to be requested. She did not request holidays. Sufficient notice has to be given. She requested a carryover and this was agreed.

The Respondent advised that they intended to pay the outstanding holiday pay

Findings and Conclusions:

Public Holidays

The Respondent was requested to supply records of time in lieu granted but they failed to do so.

I find that she was entitled to compensation of one fifth of her weekly pay amounting to €9.15 X 20 hours = €183 / 5 = €36.6 X 3 PHs = €109.80.

Therefore I find that the Respondent has breached Sec 21 of this Act and I find that the Complainant is entitled to €109.80 for the economic loss.

I have decided that the Respondent has breached Sec 14, 19 and 21 of this Act.

I have decided that the Respondent should pay the Complainant €859.73 for the economic loss.

In addition I have decided that the Complainant should pay €600.00 in compensation for breach of her rights under this Act.

2) Payment of Wages Act CA-9580-004

Summary of Complainant’s Case:

She stated that her wages were unilaterally reduced from €10.00 per hour to €9.15 from 12^th September to 9^th December 2016. She worked 296.50 hours in that period and claimed 0.85 per hour = €252.02. She denied that she ever agreed to this reduction.

b) Week 37: Tax rebate

She stated that in week 37 5^th September 2016 her payslip has a rebate of €55.22 but she never received it.

c) Week 45: €97.62 not received

In week 45: 31^st October to 6^th November it showed wages of €97.62 but she never received it. Her husband did not collect week 45 pay as he was sick. He collected pay for week 44. This money is owed.

d) Week 1: in 2017 Variation in pay slip to actual wages

She stated that she worked 11 hours but 18 hours were put through but she was paid for 11 hours.

e) Week 4 in 2017 variation in pay slip to actual wages

She worked 8 hours at €9.25 per hour and was paid €74.00. The payslip stated that she worked 9 hours for €83.25.

f) Week 42: Pay slip

She worked 15 hours but was paid for 9.5 hours at 86.93 instead of €137.25.

g)Week 43: payslip 23^rd October 2016

She worked 9.5 hours at 9.15 ph. She was paid 86.92. There are two payslips 97.62 and 86.93. There was a tax rebate of €14.36 but she didn’t get it.

h) Week 46; 7^th Nov to 13^th Nov 2016

She worked 7 hours at €9.15 ph = 64.05 net but the payslip shows 20 hours gross pay at 183.00 net pay 178.40.

i) Week 38; 18^th September 2016

She worked 20 hours at 10.00ph = €200.00 gross pay with net pay 191.74 but she received 146.00.

j) Week 39

Worked 20 hours at 10.00ph = 200.00 net 191.74 but received 172.30 net.

k) Week 40: 2^nd October 2016

Pay slip shows hours worked at 14.5 at 10.00ph = €145.00 gross, rebate of€2.74. She actually worked 20 hours at 9.15 =€191.74 and was paid €177.00net.

Summary of Respondent’s Case:

The Respondent stated that she agreed to the reduction in wages from €10.00 to €9.15 per hour.

Alleged errors in wages:

They stated that she only once brought this to their attention.

b) Week 37: Tax rebate

The Respondent was requested to respond to this allegation but failed to address it.

c) Week 45: €97.62 not received

There was no sick pay deduction. Her husband collected that pay.

d) Week 1 in 2017 Variation in pay slip to actual wages

The Respondent was requested to respond to this allegation but failed to address it.

e) Week 4 in 2017 variation in pay slip to actual wages

The Respondent was requested to respond to this allegation but failed to address it.

f) Week 42

The Respondent was requested to respond to this allegation but failed to address it.

g)Week 43 payslip 23^rd October 2016

The Respondent was requested to respond to this allegation but failed to address it.

h) Period 46; 7^th Nov to 13^th Nov 2016

The Respondent was requested to respond to this allegation but failed to address it.

i) Week 38; 18^th September 2016

The Respondent was requested to respond to this allegation but failed to address it.

j) Week 39

The Respondent was requested to respond to this allegation but failed to address it.

k) Week 40 2^nd October 2016

The Respondent was requested to respond to this allegation but failed to address it.

Findings and Conclusions:

I note the conflict of evidence in this matter.

Section 5 (1) of this Act provides, “an employer shall not make a deduction from the wages on an employee (or receive any payment from an employee) unless –

1. The deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

    

2. 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

    

3. In the case of a deduction, the employee has given his prior consent in writing to it.

    

   I note that the Complainant did not give consent in writing to the reduction.

    

   Therefore I must find that this reduction amounted to an illegal deduction in wages.

    

   I find that her wages were reduced from €10.00per hour to €9.15 from 12^th September to 9^th December 2016.

   I accept that she worked 296.50 hours in that period and the deduction amounted to 0.85 per hour = €252.02.

    

   b) Week 37: Tax rebate

   I note that she stated that in week 37; 5^th September 2016 her payslip provided for 20 hours pay and a tax rebate of €55.22. She advised that she did not work that week and so had no entitlement.

    

   I find that there was no illegal deduction from her wages.

    

   I find that that part of the claim fails.

    

   c) Week 45: €97.62 not received

   I note in week 45; 31^st October to 6^th November the payslip showed €97.62 but she alleged that never received it.

    

   I find that the payslip provided for this.

    

   I note that the Respondent asserts that her husband collected the pay for week 45 but the Complainant rejects this.

    

   I note that the Respondent has no record to support their assertion that the pay was collected.

    

   I find that the Complainant is owed €97.62.

    

   d) Week 1: in 2017 Variation in pay slip to actual wages

   I note that she stated that she worked 11 hours but 18 hours were put through but she was paid for 11 hours.

    

   I find that she worked 11 hours and was paid for 11 hours so there is no illegal deduction in wages.

    

   This part of the claim fails.

    

   e) Week 4: in 2017 variation in pay slip to actual wages

   I note that she worked 8 hours at €9.25 per hour and was paid €74.00. However the payslip stated €83.25.

    

   I find that she was paid the correct amount so there was no illegal deduction from her wages.

    

   This part of the claim fails.

    

   f)Week 42:  Pay slip 42

   I note that she stated that she worked 15 hours and was paid for 9.5 hours at 86.93 instead of €137.25.

    

   I note that the payslip shows that she worked 9.5 hours not 15 as alleged.

    

   I note that the time sheet was not filled. This is the Respondent’s responsibility.

    

   The Respondent was requested to respond to this allegation but failed to address it.

   I find that the Complainant should have been paid for 15 hours not 9.5. So she is owed 5.5 hours at 9.15 =€50.33.

    

   I find that the Respondent has made an illegal deduction from the wages.

    

   g)Week 43: payslip 23^rd October 2016

   I note that she asserts that she worked 9.5 hours at 9.15ph. The pay slip for week 43 states 9 hours at 9.15 = 82.35 with a rebate of 15.27, which she alleges she did not get.

   The Respondent was requested to respond to this allegation but failed to address it.

   I find that she is owed 0.5 hours pay €4.57.

   Therefore I find that she did not receive the rebate of €15.27.

    

   I find that the Respondent has made an illegal deduction from the wages.

    

   h) Period 46; 7th Nov to 13^th Nov 2016

   I note that she alleges that she worked 7 hours at €9.15ph = €64.05 but the payslip shows 20 hours gross pay at 183.00 net pay 178.40.

    

   I find that the pay slip does not concur with the Complainant’s assertion that she worked 7 hours not 20.

    

   I do not find any breach of this Act.

    

   I find that that part of the claim fails.

    

   i) Week 38; 18^th September 2016

   I note that she asserts that she worked 20 hours at 10.00ph = 200.00 gross pay with net pay 191.74 but she received 146.00.

    

   I note the pay slip states €200 gross and €191.74 net.

    

   I note that she refers to the reduction from 10.00per hour to 9.15 ph.

    

   I find that she was paid at 9.15 ph not 10.00 as set out in the payslip.

    

   I have addressed the reduction in pay from 10.00 to 9.15 in a) above.

    

   I find that that part of the claim fails.

    

   j) Week 39

   I note that she asserts that she worked 20 hours at 10.00ph = €200.00 net €191.74 but received €172.30 net.

    

   I note the pay slip states €200 gross and €191.74 net.

    

   I note that she refers to the reduction from 10.00per hour to 9.15 ph.

    

   I find that she was paid at 9.15ph not 10.00 as set out in the payslip.

    

   I have addressed the reduction in pay from 10.00 to 9.15 in a) above.

    

   I find that that part of the claim fails.

    

   k) Week 40 2^nd October 2016

   I note that she asserts that the pay slip shows hours worked at 14.5 at 10.00ph 145.00 gross, rebate of €2.74 net pay but that she actually worked 20 hours at 9.15 =€191.74 and got €177.00 net pay.

    

   I have addressed the reduction in pay in a) above.

    

   I find that she was paid for the actual hours worked; therefore there was no illegal deduction in wages.

    

   I find that that part of the claim fails.

Additional claims

I note that the Complainant in its response to the Respondent’s supplementary submission raised matters in relation to weeks 32, 33, 34, 35, 41, 44, 47, 48, 49, 50, 51, 52, 53.

These issues were not raised at the hearing and so I cannot entertain them being introduced at this stage and so they will not be adjudicated upon.

Decision:

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

I have decided that the Respondent has breached Sec 5 of this Act in part only.

I order the Respondent to pay the Complainant €419.81 within six weeks of the date below.

3) Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012                      CA-9580-005

Summary of Complainant’s Case:

Findings and Conclusions:

I note that this claim was made in error and was withdrawn.

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.

This complaint was withdrawn.

4) National Minimum Wage Act CA-9580-008

Summary of Complainant’s Case:

Findings and Conclusions:

I note that this claim was made in error and was withdrawn.

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.

Dated: 25/10/17

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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