Complainant

Respondent

Anonymised Parties

A Retail Assistant

A Retail shop

Representatives

In person

Nora Cashe and Aisling McGowan Peninsula Group Limited

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-00013466-001

31/08/2017

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

CA-00013466-002

31/08/2017

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

CA-00013466-003

31/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00013466-004

31/08/2017

Complainant worked as a retail assistant in a retail convenience shop in Dublin. He started working there on 1 July 2015 and his position was terminated on 18 August 2017.

The Complainant made two complaints under the Payment of Wages Act 1991; one for minimum notice and one for unpaid wages for Saturdays.

He withdrew his complaint under the Organisation of Working Time Act 1997 as he accepts that he was paid for holidays that were owed to him

His last complaint is for Unfair Dismissal.

At the hearing the Complainant stated as follows:

1.      He commenced working on 1 July 2015 as a retail assistant in a convenience store in Dublin

2.      Until February 2017 everything was fine. His work hours varied only slightly each week and typically his work hours were 2pm until 10pm. This sometimes extended until 11pm.

3.      His pay was €9.25 per hour and on average he worked a 35 hour week.

4.      His pay varied from week to week but he usually received approximately €300 per week after tax.

5.      The regular hours suited him as he had a partner and a new born baby at home.

6.      In February 2017, the manager of the shop asked him if would he change shifts to do the early shift.

7.      A staff member had left and a vacancy had become available in the early shift, which was from 5.30am until 1 pm.

8.      The Complainant was very reluctant to accept this as their new born baby at home was resulting in sleepless nights and his partner needed his help at home during nights and early mornings.

9.      However, the manager who was under pressure due to renovations being carried out in the shop promised him extra hours on Saturday and extra pay. He told him that he would receive €450 into his hand per week.

10.   This discussion took place in the manager’s office on 18 February 2017.

11.   From then on the Complainant worked the early shift. He opened the shop and he worked Saturdays.

12.   However after a few weeks he noticed that his pay had not increased, as per their agreement.

13.   He approached the manager in his office and complained a number of times.

14.   The manager then paid him in cash the shortfall explaining that he had not spoken to his accountant yet and he apologised for the delay in making the necessary changes to his pay.

15.   On 24 March 2017, the Complainant received his pay and his pay slip indicated that his pay was €9.80 per hour and that for the early shift (5.30am until 7am) his pay was €12.20 per hour.

16.   However, this was not what was agreed. He expected to receive €450 into his hand and his pay was less than that.

17.   The Complainant complained about this to the manager.

18.   In May and June 2017, he approached the manager and told him that he was owed €1200 for unpaid wages.

19.   The manager denied ever having entered into an arrangement whereby he would be paid €450 into his hand per week.

20.   He showed him the payslip and explained how he was being paid. It was on a per hour basis.

21.   After a number of further meetings, the manager started training in another employee and at the end of July the manager did not place him on the roster and when he approached the manager about this the manager told him that he had another person who could do that shift. The manager then asked him for a resignation letter which he refused to do because he was not resigning.

22.   On 23 August 2017, the Complainant asked for the reasons for his dismissal.

23.   The Complainant was dismissed, it was not a resignation. He explained that it was not in his best interests to leave a job voluntarily when his partner was on social welfare and when they had a new baby at home.

The manager of the Respondent stated the following:

1.      The Complainant started work as a retail assistant on 1 July 2015.

2.      He had been an excellent worker. He was extremely reliable and it was because of his proven trustworthiness that when the early shift became available, the manager approached the Complainant to ask if he would open the shop and work the early shift.

3.      The agreement that they had was that he would be put on a greater rate of pay and that he could work Saturdays. He also would receive a premium rate of pay for the first hour and a half of each day that he worked the early shift.

4.      Therefore, he would receive €12.20 for the first hour and a half of each day he started work at 5.30am

5.      From 7am until 1pm he would be paid 9.80 per hour

6.      In addition, he would work Saturdays. This in total would allow him a gross pre-tax weekly wage of €450.00 approximately.

7.      He accepts that the shop was being renovated between February and April 2017 and this was a distraction but it was not agreed that the Complainant would be paid a weekly salary, neither was it agreed that he would be paid “under the counter.” The only employees that received a salary were managers.

8.      He accepted that a once off cash payment was made to the Complainant and this occurred in and or around early March 2017. This was for the shortfall in wages for approximately one month because the manager had not yet been able to tell his accountant to make the necessary changes to the payroll in respect of the Complainant’s increased wages.

9.      In July 2017, the Complainant came into his office and claimed that he was owed 1200 in wages. He could not provide a break down as to why he believed that he was entitled to this. The manger provided him with copies of his pay slips and explained the breakdown in his increased wages. The Complainant left his office and he thought that the issue had been explained to the Complainant’s satisfaction.

10.   In August 2017, the Complainant entered into his office and said that he was resigning his position. The manager asked him to reconsider and offered him the shift that he had worked previously but the Complainant declined, stating that he wished to quit his position

CA-00013466-003

Complaint under the Organisation of Working Time Act 1997 is withdrawn.

CA-00013466-001

CA-00013466-002

Payment of Wages Act 1991

Complaints for unpaid wages and minimum notice

There was a complete conflict of evidence in this case.

The Complainant’s version of events had inconsistencies within it that were not a feature of the Respondents’ case. However the inconsistency related to dates being confused and this can be easy to do and cannot form a basis to decide credibility as of itself. This is a difficult case to decide because the evidence of both sides was compelling and credible.

However, having considered the evidence, I believe that it is more likely that a weekly amount of €450 was mentioned in the meeting in February 2017 when the manager asked the Complainant to work the early shift. But I believe that this was meant as an approximate gross weekly amount rather than what the Complainant believed it to be, ie €450 into his hand each week. It is too much of a coincidence that based on the Respondent’s method of calculation that the hours done ended up being a pre-tax amount of approximately €443.00 per week. This is based on a calculation of a 6 day week working 5.30 until 1pm and on a Saturday working 5.30am until 11am. These hours based on a €12.20 per hour rate of pay for the first hour and a half and the remaining hours being €9.80 per hour.

I accept the evidence of the manager that in the Respondent’s business that there are 80 employees over a number of retail premises and that no one other than management staff are paid a salary.

Therefore, I believe that the Complainant honestly believed that the agreement was €450 net but that the offer made was in fact approximately €450 gross.

I think that from this point onwards the Complainant understandably believed that he was being deducted wages that were owed to him and that the relationship between the parties failed from that point onwards.

No claim arises under the minimum notice complaint as the Complainant worked out his notice.

I reject the case under the Payment of Wages Act 1991 as I do not find it to be well founded.

Unfair Dismissals Act 1993-2015

In relation to the unfair dismissal complaint I find that this is well founded and I accept the Complainant’s version of events. I believe that the manager of the Respondent had reached a point that he was tired of the Complainant constantly complaining to him about monies that he believed were due to him, but which were in fact not. I accept the Complainant’s evidence that another employee was trained in before his position was terminated and I believe that this was done to replace the Complainant. I think that when the roster did not list the Complainant that this broke the Complainant’s trust and that when he raised this with the manager, that his assumption (that he was being dismissed) was not remedied by the manager. I believe that the manager was ambivalent about the Complainant’s departure on an erroneous assumption that he was dismissed. I do not accept that the manager sought to dissuade him from leaving.

In respect of the unfair dismissal case, taking into account the Complainant’s obligation to mitigate his loss, I award the Complainant €1200.