Complainant

Respondent

Anonymised Parties

Pharmacist

Retail Pharmacy

Representatives

Patrick O'Sullivan Barrister-at-Law

Glenn Cooper Dundon Callanan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00003467-001

23/03/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00003467-002

23/03/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00003467-003

23/03/2016

The claimant is employed as a pharmacist with the respondent and commenced employment on the 16th.Feb. 2013.She submitted the respondent was in breach of the Terms of Employment (Information)Act 1994 for failing to furnish her with written terms and conditions of employment , for failing to notify her of changes to her terms and conditions .She further submitted the respondent was in breach of the Payment of Wages Act 1991for illegally deducting €3,300 from her wages.

It was submitted that the claimant’s employment commenced by way of oral contract with the respondent indicating that written contract would follow.It was submitted that the respondent was in breach of the Act for failing to present to the claimant a “written contract containing the said terms and conditions as agreed” .It was further submitted that the claimant had not received an employee handbook until November 2016.It was submitted that a draft contract was presented to the claimant in February 2015 but the claimant refused to sign same as it reflected lesser terms and conditions than agreed upon at commencement.It was submitted that when the claimant was initially recruited she agreed to take on the role of Assistant Pharmacist at the rate of €27.50 per hour but ultimately was only paid €25 per hour.It was submitted that the respondent was in breach of Section 5 of the Terms of Employment (Information) Act 1994 for failing to notify her in writing of changes to her terms of employment - when she was initially recruited on the basis of €27.50 per hour.

In her complaint form , the claimant submitted that her employer had made an unlawful deduction from her wages of €3,300 on the 28th.Jan. 2016.She went on to complain that “ this figure is calculated from bank statements showing deductions in salary over a number of years.On these months I did not receive a payslip but was informed that these deductions were due to reconciliation from 2013 to 2015.I asked for a breakdown of this figure but was refused same.I asked for payslips for this period but was refused .”It was submitted that the respondent was in breach of the Act for failing to pay the claimant the agreed rate of €27.50 per hour and for failing to pay the claimant for hours worked covering for annual leave for MH in 2013 and for cover for 2 other pharmacies in 2014.

The claimant asserted that she got a commitment from the respondent at a meeting on the 3rd.Dec. 2014 that “ something should have been done” and that the agreed rate should have been €27.50 per hour. The claimant stated that the meeting took place in the context of a review of her working hours at that time as her hours were being reduced.The claimant asserted that she learned from a named replacement   pharmacist that she was in receipt of €27.50 per hour.

It was submitted that the non payment of the €27.50 per hour constituted a deduction under the Act .It was further submitted that the respondent’s reconciliation form of payment was not explained to the applicant at the commencement of her employment.It was submitted that the total amount of unpaid wages owing to the claimant as of Dec.2016 , was €8,187.52 gross and €4175.64 nett.It was submitted that these figures were verified by Ms.R Chartered Accountant.The provisions of IEHC 119 Cleary v.B&Q Ireland Ltd [2016], Labour Court Determination PWD1614 and McDermott v HSE were invoked in support of the claimant’s assertion that the non payment of the higher rate per hour constituted an illegal deduction.

It was submitted that the claimant was out of employment while on maternity leave and that this constituted reasonable cause for the delay in submitting her complaint.

When challenged under cross examination about the claimant’s failure to refer to an agreed rate of €27.50 per hour in her grievance letter to the MD dated the 12th.June 2015 , the claimant stated that the final sentence referred to the higher rate “ Please note my salary has been short these last 2 months , I would appreciate the balance forthwith”.When asked why there was a reference to 2 months arrears when the agreement allegedly took place in Dec.2014 , the claimant asserted that that she assumed the reference would encompass everything.

The respondent submitted that there had been no breach of the Terms of Employment (Information) Act 1994 or the Payment of Wages Act 1991 and asserted that no illegal deduction had been made to the claimant’s wages.

It was submitted that the claimant was initially recruited on a part time basis for a period of 9 weeks following which she stepped into the position of a pharmacist who had left the company.It was accepted that the claimant should have been issued with a contract after 2 months in employment but it was asserted that the respondent had endeavoured to remedy the situation by furnishing her with a contract in early 2015 which was signed by the respondent but was not signed by the claimant.

It was submitted that when the claimant wrote to the MD on the 12th.June 2015 regarding her terms of employment , she made no reference to being paid less than what had been agreed. The respondent submitted that €25 per hour was the rate agreed with the claimant and that had never changed.

It was submitted that the MD had no recollection of a meeting taking place on the 3rd.Dec. 2104 .It was advanced that the claimant’s payslips clearly demonstrate a rate of €25 per hour – when the claimant wrote her grievance letter in June 2015 , she made no complaint about the rate of pay.

It was submitted that the claimant had advanced no reasonable cause for the delay in making the complaint and that the fact of maternity leave had not been accepted by the Labour Court as reasonable cause for the delay in prosecuting a complaint.

It was categorically denied that an offer of €27.50 had been made to the claimant .It was submitted that the lowest hourly rate was €23 per hour and that negotiations take place individually with pharmacists and that the outcomes are circumstance specific

It was submitted that in her complaint form the claimant made no reference to an agreed rate of €27.50 per hour. It was submitted that the characterisation of her complaints in the context of calculations and reconciliation was very different to not being paid the correct rate.

The company representative explained that the reconciliation system operated on a 3 monthly basis to review if overtime had been worked or pharmacists worked over and above their contracted hours.

It was advanced by the company representative Mr.DC that the individual who had recruited the claimant would have had no authority or mandate to agree a rate of €27.50 and that when it came to light that the claimant had not been furnished with a contract of employment , the company immediately sought o remedy the problem.

Terms of Employment(Information ) Act 1994

I have reviewed the evidence presented at the hearing  and find that there was a breach of Section 3 by virtue of the failure to comply with the requirement to furnish the claimant with a written statement of her terms and conditions of employment within 2 months of commencement. I accept however that the respondent did endeavour to remedy this failure when it came to light in 2015 and furnished her with a contract at that time. I note that the claimant refused to sign the contract because of the dispute in relation to her hourly rate of pay. The provisions of the Act however require only that the statement is signed and dated by or on behalf of the employer. I require the respondent to pay the claimant €1,000 compensation for breaching Section 3 of the Act within 4 weeks of the date of this decision. I do not accept that any compelling evidence was advanced to support the complaint of a breach of Section 5 – accordingly I am not upholding this element of the complaint.

Payment of Wages Act 1991

I have reviewed the evidence presented at the hearing and the post hearing submission furnished by the respondent. I find the documentary evidence presented by the respondent to have been more persuasive than the evidence of the claimant – specifically in the context of the claimant’s grievances as documented to the MD on the 12th.June.I find that no compelling evidence was advanced to support the claimant’s contention that the respondent agreed to an hourly rate of €27.50 and consequently find that the non payment of same does not constitute an illegal deduction under the Act. I find that the complaints made with respect to non payment for locum work undertaken in 2013 and 2014 are out of time .