Complainant

Respondent

Anonymised Parties

A Cleaner

A Company

Representatives

John Barry Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00016574-001

02/01/2018

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

CA-00016574-002

02/01/2018

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

CA-00016574-003

02/01/2018

CA 00016574 -001

In June, 2013 the complainant started working on an overnight shift from 11 p.m. to 7 a.m. Sunday to Thursday. He was paid his Sunday premium for the 1 hour from 11 p.m. to 12 midnight. This system was in place until April 2017 when management removed the one hour Sunday premium. They stated that it was an administrative error. The complainant states that he has exhausted the internal process in relation to this issue and to date he has not had a satisfactory outcome.

CA 00016574 -002

The complainant states that the removal of the 1 hour premium Sunday payment amounts to an unlawful deduction within the meaning of the payment of wages act. Prior to its removal he was paid €11.98 for the one hour 11 p.m. to 12 midnight on Sundays.

CA 00016574 -003

The complainant states that when his shift was changed from 3p.m. to 11 p.m. Monday to Friday 11 p.m. to 7 a.m. Sunday to Thursday he was not notified in writing of the change.

The complainant was originally employed by X. In 2010 his contract was transferred to the respondent under a transfer of undertakings.

In 2012, the complainant approached the respondent and asked for night shift work. He was hoping to attend a course at college. At the time the company did not have a vacancy available for him. In 2013 a position became available and it was offered to the complainant. Whilst the complainant and the respondent were discussing this offer, the complainant was advised that as he was already in receipt of a Premium payment of €11.98 per hour as opposed to the standard rate of €11.05 per hour there would be no additional payment for working at this time. He commenced working this shift in July 2013. In April, 2017 the respondent identified that the complainant had been paid double time from 11 p.m. to 12 midnight. The company wrote to the complainant on 11 April 2017 confirming that an overpayment had been made to him since July 2013 when he commenced his new shift. He was also advised in this correspondence that whilst the company was entitled to seek repayment, the company in this case was not going to ask to be reimbursed. As a consequence of this correspondence the complainant wrote to the respondent on 18 April, 2017 seeking that the payment he had been receiving be reinstated. This issue has been the subject matter of correspondence and grievance meetings between the complainant and the respondent. The outcome of the process was that the company concluded that the complainant was in receipt of a premium payment already and was not entitled to be paid double time for Sunday working which is an overtime rate and the complainant was not working overtime but was working part of his normal 40 hour week.

CA 00016574- 002- preliminary application.

The complainant has submitted a claim for an unauthorised deduction from his wages effective from 17 April, 2017. Section 41(6) of the workplace Relations Act a claim can go back for a period of six months. From the date the claim is filed. In this particular case the complainant submitted his claim on the 2 January, 2018 and therefore has not submitted a proper claim within the requisite period. Therefore, the company would in the first instance argue that there is not a valid claim before the WRC. In this regard the company would also argue that there is no entitlement to extend the period under payment of wages act as it is very clear from the complainant correspondence that he was aware of the payment of wages act prior to the date of referral.

If the preliminary application is not successful the respondent argues that it is entitled to make a deduction where there has been an overpayment, provided that appropriate notice is given. The respondent issued appropriate notice to the complainant in that they informed him of the deductions seven days in advance of same.

CA 00016574 – 003

In his claim the complainant has submitted that he was not notified in writing by his manager about the changes to his terms and conditions of employment. In this regard the respondent would advise that the alleged changes in his terms and conditions of Employment a rose, as a consequence of a request by the complainant to facilitate him on a night shift. The respondent was able to deliver this facilitation to the complainant in July 2013 and after a consultation with the complainant introduced the change.

In addition, the company contends that there were no actual changes to the complainant terms of conditions of employment as it would be standard that employees are required to be available to work whatever ships are appropriate or are rostered.

CA 16574 – 001 Section 27 Organisation of Working Time Act, 1997.

The complainant was paid a rate of € 11.98p/h when his colleagues were being paid €11.08p/h. The reason the complainant was paid more was because he had been on that rate prior to the transfer of undertakings. The respondent stated that he was not paid the premium Sunday rate due to the fact that it was already built into his enhanced hourly rate.

I am satisfied that the complainant is in receipt of an enhanced hourly rate that the Sunday supplement is built into that. It is on that basis that I find that the complaint fails.

CA 16574 -002 Payment of Wages Act, 1991

The respondent argues that this claim is statute barred. The alleged deduction occurred on the 17.04.2017. The claim was filed on the 02.01.2018. The complainant, it is argued is only entitled to claim for the period 18.01.2018 back to 18.07.2017. As the first occurrence was in April, 2017 therefore he is barred from being the claim. I do not agree with the respondent’s argument. The alleged deduction is ongoing. Every time the complainant is not paid this payment it is a new occurrence. I am however limited to the period 02.01.2018 back to 02.07. 2017.

I find that the payments made to the complainant were made in error. I note that the respondent, despite having the right to recoup the overpaid monies, have waived their right to do so. The respondent is entitled to cease making payments that it was making in error and in doing so is not in breach of the act.

The complaint fails.

CA 16574 – 003 Terms of Employment ( information) Act, 1994.

The complainant concedes that it was him who requested that he be moved to the night shift. He also concedes that the respondent had a consultation with him about the move. I note that it is standard within the industry for employees who carry out this type of work to be rostered onto different shift, depending on demand.   There were no actual changes to the complainant’s terms and conditions of employment. He simply moved from one shift to another. Therefore, in the circumstances, I find that the complaint must fail.