ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00016196

Complaints:

Date of Adjudication Hearing: 19/11/2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred complaints against the Respondent under Section 6 of the Payment of Wages Act 1991, Section 27 of the Organisation of Working Time Act 1997 and Section 7 of the Terms of Employment (Information) Act 1994 to the Workplace Relations Commission (hereinafter ‘WRC’) on 8th August 2018. He referred a further complaint under Section 24 of the National Minimum Wage Act 2000 to the WRC on 15th August 2018. In accordance with Section 41(4) of the Workplace Relations Act 2015, the Director General referred these complaints to me for adjudication. The hearing was originally scheduled for 26th October 2018 but was postponed to accommodate the Complainant who had a pre-arranged holiday for that time. It was rescheduled for 19th November 2018 when I proceeded to hearing and gave the Parties an opportunity to be heard and to present any relevant evidence. Both Parties were in attendance with the Complainant representing himself and the Principal and Chairperson of the Board of Management attending on behalf of the Respondent. As the Parties were unrepresented, I outlined the relevant statutory provisions in lay terms. The Complainant withdrew two of his complaints in writing at the hearing, namely CA-00021041-003 and CA-00021151-001, acknowledging that there was no factual basis to support same. All documentation and evidence presented have been taken into consideration. It was further noted that the Complainant had referred another complaint (ADJ-00006815) against the Respondent under Section 7 of the Terms of Employment (Information) Act 1994 to the WRC on 20th January 2017. This had resulted in a dismissal when he had been unable to attend the hearing on 12th July 2017 owing to a holiday. He had sought a further hearing of that complaint which was refused on the basis that the WRC was ‘functus officio’ having issued a decision. The Complainant did not appeal that decision to the Labour Court but having retired of his own volition on 29th June 2018 and taken advice from a Public Advice Centre, he sought to revisit issues with his employment contract by way of these complaints. As no factual determinations had been made in relation to his original complaint, it was open to this Adjudication Officer to make findings of fact in relation to these complaints based upon the evidence presented.

Background:

It is common-case that the Complainant was employed as a Caretaker with the Respondent Primary School from May 2004 until June 2018 when he retired on a State Pension. Essentially, he feels aggrieved at the Respondent’s treatment of him and complains that his long and loyal service has not been properly recognised giving rise to the aforesaid complaints. Having withdrawn two of the complaints as outlined aforesaid, the Complainant proceeded with his complaint under Section 6 of the Payment of Wages Act 1991, seeking compensation in respect of a unilateral increase of his working time along with a complaint under Section 27 of the Organisation of Working Time Act 1997, that he had not been paid in lieu of a week’s annual leave. The Respondent wholly refuted both complaints and sought to have same dismissed.

Shortfall in Wages under the Payment of Wages Act 1991 – CA-00021041-001

Summary of the Complainant’s Case:

In his complaint form, the Complainant sought payment of €3510 in respect of having to work an additional 45 minutes a day for no additional payment over an 18-month period. At the hearing, the Complainant gave evidence confirming that he had worked as a Caretaker for the Respondent since May 2004, working a five-day week at a rate of €13 per hour, equating to 23 hours and 20 minutes per week or 4 hours and 40 minutes per day, in respect of which he received a gross weekly wage of €312. During this time, he was also employed and paid by a County Council as a lollipop man outside the school from 8.30-9.30am and from 1.30-1.50pm. However, from September 2016, the Respondent had unilaterally changed the terms and conditions of his employment contract following the current Principal commencing work with the Respondent. He alleged that she had increased his daily hours by up to 7 hours per week without any consultation or agreement for no additional payment. He also asserted that the County Council had reduced the time he was required to work as a lollipop man resulting in him having to work longer for the Respondent for the same wages, although this appeared to have occurred at an earlier stage. He said he had agreed to work the new hours under protest. He had not previously been provided with a written contract of employment and had refused to sign a contract produced by the Principal in March 2016. Additionally, his duties had been altered and he was required to open a second building which he initially did under protest before ceasing without any consequent disciplinary action. The Complainant provided a table comparing the times of his work before and post the alleged changes, along with the financial loss arising from same. His written submission referred to a daily increase of 65 minutes or 5 hours and 25 minutes per week. This arose primarily from the requirement for an earlier start time of 7.45am as opposed to 8.30am. In his direct evidence, he appeared to include unpaid breaks within his calculation of working time. He also furnished a list of his duties before and after the alleged unilateral changes to his contract. He sought an extension of time up to the maximum of 12 months to enable this Adjudication Officer to assess the underpayment in wages as far back as possible, the basis for same being that he had brought the previous complaint to the WRC but had not been afforded an opportunity to be heard.

When questioned, the Complainant accepted that he had furnished the new Principal with a handwritten note of his working time and duties when she had enquired as to same for the purposes of providing him with a written contact. The handwritten note broadly tallied with the times he was now complaining about, for example he complained that under the changes introduced he had been expected to work between 7.45am and 8.30am before taking up his duties as a lollipop man, when in fact he had himself noted his start time under the prior regime as being 7.45am. When this was put to him, he appeared to change his position somewhat and said that whilst he had previously voluntarily opened the School at 7.45am, he would have been able to relax and have his breakfast until taking up his lollipop man duties. It was further put to him that money had been raised by the staff to give him a generous retirement present.

Summary of the Respondent’s Case:

Both the Principal and Chairperson of the Board of Management gave evidence confirming that the Complainant was not paid by reference to an hourly rate and was on a fixed salary for his employment with the Respondent. They produced records confirming his working time and said they were not entirely clear as to what was being claimed. Excluding his lollipop man duties and 45 minutes of breaks, he had been required to work 5 hours and 10 minutes per day for a 5-day week. They asserted that there had been no increase in his working time and produced the aforesaid handwritten note as provided by the Complainant. Whilst it was accepted that there had been changes arising from an expansion of the School around 2016, there had been no material changes to his working time or Caretaker duties. The Principal had thought it prudent to introduce written contracts and had consulted with the Complainant as to his times of work and duties for the purposes of drawing up same but he had refused to sign a draft written contract in March 2016. Any changes in the Complainant’s duties had been verbally agreed and whilst it was accepted that he had objected to opening up a second building, there was no record of him working under protest or bringing his grievances to the Board. Additionally, it was pointed out that he had complained about a different issue in relation to his contract of employment in his earlier complaint (ADJ-00006815). It was the Respondent’s position that the Complainant had been properly paid for his work and as much as it would have liked to have compensated him more, the Board of Management were constrained by limited financial resources and requirement for accountability. Accordingly, this complaint was not well-founded.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions. Section 1 of the Payment of Wages Act 1991 defines ‘wages’ as including: “…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,…” Section 5(1) provides: “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.” Section 6 of the Act provides for the referral of complaints arising from a contravention of Section 5 to the WRC. Section 41(6) of the Workplace Relations Act 2015 provides for a period of six months (extendable to 12 months if reasonable cause) from the date of contravention until the date of referral.

Applying the aforesaid statutory provisions to the facts adduced, I must firstly be satisfied that ‘wages’ became payable under the Complainant’s contract of employment and if finding in favour of the Complainant on that point, consider his application for an extension of time for the purposes of calculating same. It is well-established that a unilateral change in an employment contract can potentially give rise to an underpayment of wages under the Payment of Wages Act 1991. However, having weighed up the Parties’ evidence on the balance of probabilities, I prefer the Respondent’s position as: (1) I find that there was no evidence of a unilateral increase in the Complainant’s working time and in particular, his handwritten note provided to the Principal containing his working time prior to September 2016 tallied with the hours he was required to work thereafter; (2) I found his evidence to be inconsistent in relation to the alleged increase in working time e.g. different periods of time were cited in his complaint form, written submission and in evidence and (3), if there had been a unilateral change in his working time, I would have expected the Complainant to have raised it with the Board of Management when it arose or at least in his first complaint to the WRC which referred to a different issue. Whilst there may well have been changes to his duties arising from changes within the School in or around 2016, nothing was proffered to suggest that they were outside the remit of his role as a Caretaker or in breach of contract. Having satisfied myself that there was no unilateral change in working time or duties that could give rise to a deficit in his wages, it is unnecessary to consider his application for an extension of time for the purposes of calculating same.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions under Schedule 6. Based upon the aforesaid reasoning, I do not consider this complaint to be well-founded and accordingly dismiss same.

Outstanding Annual Leave under the OWT Act 1997 – CA-00021041-002

Summary of the Complainant’s Case:

The Complainant also claimed that the Respondent had failed to pay him in lieu of a week’s annual leave as at the date of his retirement on 29th June 2018, contrary to Section 19 of the Organisation of Working Time Act 1997. He accepted that in the absence of his agreement to the written contract containing a more generous annual leave provision, he was statutorily entitled to 20 days annual leave per annum.

Summary of the Respondent’s Case:

The Principal and Chairperson of the Board of Management produced records and also gave evidence to the effect that the Complainant had been given and/or was paid in lieu of any annual leave due accrued as at the date of his retirement on 29th June 2018. On the basis of the statutory leave year commencing on 1st April 2018, he was entitled to 5 days’ leave for the period from 1st April to 30th June 2018. However, the Respondent had taken a position more favourable to the Complainant and had calculated his entitlement using the calendar year as the leave year. This gave him an entitlement to 10 days’ leave for 2018 up until the date of his retirement. Of this, 5 days were taken as leave and 5 days were paid in lieu. Accordingly, the Complainant had received all of his annual leave entitlements for 2018 and nothing was outstanding. In response, the Complainant did not dispute that he had received all of his leave for 2017 but appeared to be under the misapprehension that he was entitled to payment in lieu of his leave for the whole of 2018.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions. Section 19(1) of the Organisation of Working Time Act 1997 provides: “… an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to- (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.” Section 23 of the Act provides that payment in lieu of outstanding annual leave for the current and preceding year becomes payable upon the cessation of employment. Applying these provisions to the evidence adduced, I note that it is not in dispute that the Complainant was afforded his annual leave for the statutory leave year from April 2017 until April 2018 and had received 10 days leave for the remainder of 2018 until the date of his retirement on 29th June 2018 (5 days taken and payment in lieu of 5 days), being 5 days more than had accrued as of that date. Therefore, I am satisfied that the Respondent has more than discharged its statutory obligations to pay the Complainant in lieu of any outstanding annual leave and his complaint in this respect is misconceived.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions under Schedule 6. Based upon the aforesaid reasoning, I do not consider this complaint to be well-founded and accordingly dismiss same.

Dated:   12/12/2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Underpayment of wages for unilateral change in employment contract – Section 5 of Payment of Wages Act 1991 & Unpaid Annual Leave – Section 19 of Organisation of Working Time Act 1997