Complainant

Respondent

Parties

Duty Manager

A Hotel

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00009325-001

26/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00009325-002

26/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00009325-003

26/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00009325-004

26/01/2017

The Complainant worked as a Duty Manager at the Respondent Hotel from 7 June 2015-23 December 2016 .On 26 January 2017, he submitted four claims to the WRC , which were denied by the Respondent .

The Complainant worked as a Duty Manager on a 45 Hour week from 7 June 2015 to 23 December 2016 .He was paid €480.00 gross per week. He submitted details of his terms of employment.

CA-00009325-001 Payment of Wages Act Complaint :

The Complainant submitted that he received a copy of his annual time sheet for 2016 on December 10, which demonstrated that he had been overpaid by 112.25 hrs as per company records. He stated that he was salaried at 45 hours per week; excluding breaks The Company operates a Clock In and Clock Out system of recording.

He submitted that he was deducted 26.25 hours pay for hours worked from his final payslip in compensation for the over payment .He was also deducted 16 hours pay for hours worked for not working his last two days of his notice week despite receiving a waiver for the last day from the General Manager .

The Complainant submitted a document which tabled hours projected as worked by him in 2016 as 1754.75 hrs .Some weeks detailed a shortfall in hours short of the 45 hours mentioned in the contract of employment .The complainant submitted that this was not brought to his attention .The Complainant disputed that he had agreed to repay the Hotel 20 hours resulting from the alleged deficit and stated that he did not sign an agreement .He submitted that his Holiday hours had changed from 9 hours to 8 hours also during the course of his employment .

He handed in his notice on December 18 and was unable to work the second last day, offered to work on his last day, but he received a waiver from the Hotel General Manager. The complainant sought payment of 42.25 hrs at €10.68 per hour .The Complainant undertook to forward a pay slip in support of his claim.

Summary of Respondent’s Case:

The Respondent disputed the claim .The Respondent submitted that the complainant was aware that he was not working his contracted hours. The Complainant had initially been placed on the roster on a named start time to finish of shift .This became an issue for the hotel when he was found to have left before the finish time. The Complainant’s roster subsequently had identified start and finish times.

The Respondent submitted that the complainant had been paid 15.75 hrs in his final pay and there had been no deduction .The Respondent submitted a spreadsheet detailing the bank payments to the complainant.

The Respondent confirmed that the Hotel had met the complainant on December 10, 2016 regarding his hours owed .The Respondent submitted that the Complainant had agreed to off set his remaining holidays and Public Holiday accrued against an agreed overpayment of 119.75 hrs .This reduced the liability to 39.75 hrs, which the Hotel reduced to 20 hrs owed as a good will gesture .It was the Respondent case that the complainant had agreed to this. The Complainant had not taken issue with this or raised it in any grievance procedure. The Hotel had also advanced the complainant a week’s salary to cover a period of sick leave earlier in the year.

The Respondent received one weeks notice from the Complainant on 18 December, 2016 and he failed to appear for work on the final two days. On the first day, The Respondent himself covered the shift at short notice and denied that a waiver had been given for the final day. He stated that he was unaware that the complainant had offered to come to work on the final day.

The Respondent outlined that the Complainant had worked 46 weeks in 2016 and an agreement had been recorded by the parties on how the overpayment of hours worked was to be addressed on 10 December.

The Respondent confirmed that he had deducted 16 hours in the complainant’s final payment for time not worked during his notice period. He contended that this was permitted under the Act.

Findings and Conclusions:

I have carefully considered both parties submissions .I did not receive a copy of the pay slip as requested .I can see that the issue has arisen as the 45 hour contracted week was not adhered to by either party during the course of 2016 .In the 46 weeks of records submitted, the 45 working week was realised on just two occasions, namely week 12 and 13 .The remaining weeks were fluid, with four weeks recording in excess of 45 hour week and the remaining below the 45 hour threshold. It may have been of greater assistance to the parties if this issue was addressed on a monthly/ quarterly basis rather than at year end, where it then became interwoven in a termination of employment context.

I found that there was insufficient engagement between the parties in the context of finalisation of employment.

I will now address the issue of the alleged deduction. The Complainant submits that he had an unlawful deduction made to his wages on 28 December 2016 to the total of 26.25 hrs plus 16 hours. He did not submit the pay slip. From the Respondent record of bank payments, I found a record of €202.38 made to the complainant on 28 December, 2016 .This differed from all the other weeks which totalled €416.02 -€425.45 nett payments.

I accept that an agreement was formed between the parties on December 10, notwithstanding that it was not signed by the complainant. This agreement was to address the question of overpayment.

Section 5 of the payment of Wages Act, 1991 addresses the matter of Overpayment of Wages.

(5) Nothing in this section applies to—

( a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(I) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

I am satisfied that the final payment to the complainant addressed the matter of the overpayment of salary during the course of 2016, which was underpinned by verbal agreement and it did not constitute an unlawful deduction.

I have also considered the section of notice in the terms of employment and I found that the complainant was obliged to give a weeks notice .I accept the Respondent evidence that he did not attend for work on his second last day .However, I accept that the complainant offered to work on his final day and had an honest belief that it was waivered. In the absence of evidence from the General Manager, I find that the complainant had an unlawful deduction of 8 hours pay totalling €85.44.

His complaint is well founded in that regard.

I order the Respondent to pay the Complainant €85.44 in compensation.

CA-00009325-002 Organisation of Working Time Act, 1997.

Summary of Complainant’s Case:

The Complainant submitted that his annual leave was taken without his agreement to compensate an overpayment on the termination of his employment .He was denied 4 days of annual leave.

Summary of Respondent’s Case:

The Respondent contended that the Complainant had agreed to submit his untaken annual leave into an agreement to address an overpayment of salary .This agreement was actioned in his final payment of salary on cessation of employment .The Agreement was made on December 10, 2016.

Findings and Conclusions:

I find that the complaint is not well founded in terms of the pre existing agreement made to offset an overpayment of salary which came into operation at the cessation of employment .

 CA-00009325-003   Organisation of Working Time Act, 1997.

Summary of Complainant’s Case:

The Complainant submitted that his Public Holiday Pay was withheld to compensate for an overpayment of salary on termination of employment .He sought 4 days Public Holidays.

Summary of Respondent’s Case:

The Respondent relied on an agreement made with the Complainant where he agreed to submit his untaken payment for public holidays worked .This agreement was administered in his final payment on cessation of employment. He rejected the claim.

Findings and Conclusions:

I find that the complaint is not well founded in terms of the agreement made to offset an overpayment of salary which came into being on cessation of employment .

 CA-00009325-004 Payment of Wages Act, 1991

Summary of Complainant’s Case:

The Complainant submitted that he worked 149.5 hrs overtime in 2016.He contended that his contract of employment provide that overtime was paid whaen working over 78 hours in a given fortnight ,to be added to the holiday bonus .He sought payment of €2,400 for overtime worked in 2015 and 2016 .

Summary of Respondent’s Case:

The Respondent rejected the claim .He submitted the annual record of the complainants hours worked as 1893.75, where he was not required to work overtime .Instead , he contended that his hours were fluid over the course of the year .

Findings and Conclusions:

I have considered the wording in which this complaint was framed. The Workplace Relations Act, 2015, sets down strict timelines in which complaints can be considered by the WRC.

Section 41(6) provides that :

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 any case advanced on reasonable cause, such as to provide an excuse or explaination for the delay in forwarding this complaint which originated in 2015. I have to rule the complaint out of time in accordance with the terms of Section 41(6).

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. Section 6 of the Payment of Wages Act, 1991 requires me to make a decision in this case. Section 27 of the Organisation of the Working Time Act requires me to make decision in the case.

CA-00009325-001 I find the complaint to be well founded and award compensation of €85.44.

CA-00009325-002 I find the complaint not well founded.

CA-00009325-003 I find the complaint to be not well founded.

CA-00009325-004 I find the complaint to be out of time.

Payment of Wages, Annual leave, Public Holiday and Overtime.