ADJ-00007408

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007408 

Complaints

Date of Adjudication Hearing: 06/09/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andfollowing 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 has been employed on a Community Employment Scheme as an Assistant Supervisor with the named Unemployed Centre. His Contract of Employment has been renewed each year in accordance with the Scheme Rules. The Complainant referred complaints to the Workplace Relations Commission on 19th January 20217 under the Organisation of Working Time Act, 1977 – 2015 in relation to payment of the October Public Holiday – the Public Holidays of 25th and 26th December 2016 - and the Public Holiday on 1st January 2017 -and a general complaint under the Organisation of Working Time Act, 1997 – 2015 as to whether he had received his correct annual leave and public holiday entitlements.

A Complaint was also referred to the WRC on 19th January 2017 under the Payment of Wages Act, 1991 – 2015 that an unlawful deduction had been made from wages for the six months prior to the complaint being lodged when wages were reduced form €542.98 to €459.32 a week. A further complaint was lodged with the WRC on 26th April 2017 under the Payment of Wagers Act in relation to the six month period from 19th January 2017 to date.

Summary of Complainant’s Position.

Payment of Wages Act, 1991 – 2015. The Complainant wages were reduced from €542.84 to €459.32 effective from May 2015. This is an illegal deduction from wages under Section 5 of the Act. The Complainant is seeking compensation under both complaints lodged to cover the period from 20/7/2016 to 26th April 2017

Organisation of Working Time Act, 1997 – 2015. The Complainant stated that he was paid his Public Holiday and Annual Leave entitlements based on wages of €459.32 rather than on her correct wages of €542.84. The Complainant is seeking payment of his correct annual leave and Public Holidays in the reference period covered by these complaints i.e from 20th July 2016 to 26th April 2017, the date the second complaint was lodged.

Summary of Respondent’s Position.

Payment of Wages Act, 1991 – 2015. The Complainant had been issued with a Contract of Employment effective from October 2013 renewed annually where the Complainant was required to work 39 hours a week. During the course of 2015 the Respondent was notified of an impending audit by the Department who funded the Scheme. The Respondent also became aware that in fact the Complainant was not working his specified 39 hours a week as per his then Contract of Employment but was working 33 hours a week. The Complainant is paid an hourly rate of €13.92 an hour. The Complainant was issued with a Contract of Employment dated 31st August 2016 to reflect actual hours worked and the Complainant was paid accordingly for all hours worked excluding lunch breaks. Therefore the Complainant has been paid his correct wages for hours worked. The Complainant is in receipt of a current contract of employment effective from 30th January 2017 to 26/1/2018

Organisation of Working Time Act, 1997 – 2015. The Complainant was paid correct Public Holiday entitlements based on his actual wages and likewise with his annual leave entitlements. The Complainant took his full entitlement of 20 days annual leave in 2016. The Complainant has also taken annual leave in the 2017 annual leave year and has been paid the correct annual leave payments in accordance with wages paid.

Findings and Conclusions.

Firstly, similar complaints were lodged on behalf of the Complainant on 17th December 2015 and decisions were issued on 5th July 2016 in relation to the complaints under the Payment of Wages Act, 1991 – 2015 and the Organisation of Working Time Act, 1997 – 2015. These Decisions are currently on appeal to the Labour Court and a Decision is awaited.

Payment of Wages Act, 1991 – 2015. There was no dispute between the Parties but that the Complainant did have a Contract of Employment to work 39 hours a week and he was paid €13.92 an hour. Both Parties also confirmed that the Complainant worked 33 hours a week and he was issued with Contracts of Employment to reflect this in 2016 and 2017. Section 5(5)a) of the Act provides as follows – “Nothing in this section applies to – (a) a deduction made by an employer from the wages of an employee….where….-(i) the purpose of the deduction…is the reimbursement of the employer in respect of – (1) any overpayment of wages” Likewise the evidence was that he had been paid for all hours worked in the period covered by these complaints

I declare the complaints are not well founded as there has been no unlawful deduction from the wages of the Complainant as defined by the Act.

Organisation of Working Time Act, 1997 – 2015. The complaints relate to Payment for Public Holidays within the reference period from October 2016 to 26th April 2017, and payment for annual leave within the same reference period. The evidence was the Complainant works 33 hours a week and is paid wages to reflect actual working hours. The complaints centre around the deduction from Wages from 542.84 to 459.32 as set out in the complaints under the Payment of Wages Act, 1991 – 2015.

Decisions.

Payment of Wages At, 1991 – 2015. CA-00009338-002 AND CA-00009338-003. Section 41 of the Workplace Relations Act, 2015 requires me to make a decision in relation to these complaints. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare the complaint is not well founded.

Organisation of Working Time Act, 1997 – 2015 CA-00009338-0091 – CA-00009338-004 – CA-00009338-005. In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare these complaints are not well founded.

Dated:   14 February 2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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