Complainant

Respondent

Anonymised Parties

A Complainant

A Retailer

Representatives

William Hamilton Mandate Trade Union

Tiernan Doherty IBEC

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-00012588-001

17/07/2017

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

CA-00012589-001

17/07/2017

The complainant has submitted claims against the respondent in respect of a failure to provide him with a contract in respect of his move from day work in Store A to night work in Store B and in respect of a failure to pay him at the night rate from 5th of June 2017.  These claims were submitted on the 17th of July 2017.

The complainant submits that

He commenced work with the respondent in 2010 in Store A where he was employed as a Night Crew worker,

He moved to day working in January 2015 following a buy-out of his night crew contract,

In July 2016 he was offered a move to night work in Store B starting with a four-week trial which he successfully passed,

He worked on nights in Store B as night crew team leader with a chance of becoming night crew manager, and was told his contract would be changed to a night Contract,

On 19th May 2017 he was told that the night crew was being phased out and that he would be returning to day work, this meant that his pay would be cut to day rate and that he was being moved to days after his holidays, this left him being down €164 per week,

He was moved from Store A to take up a position on the night crew in Store B where he became the night crew team leader,

His contract was not changed to reflect the change in his terms and conditions despite it being promised on a number of occasions,

He has now been moved back to days despite having spent 10 months on the night crew.

The respondent submits that

 The Complainant commenced employment with them as a Customer Assistant in February 2010 and was based in Store A as a night crew worker,

In 2014 the respondent company made a decision to close the night operation in Store A and the complainant and other colleagues who held night contracts were given a number of options,

The complainant applied for and was granted a buyout of his night contract and he moved to a day shift contract, he received a sum of €21,259.96 in compensation for the buyout of his night shift contract,

The day shift contract was signed and agreed by the complainant,

In September 2016 a temporary position became available in Store B, the position was that of Night Crew general assistant, this was offered to the complainant as he was going through a difficult time in his personal life and had indicated that a move closer to home in the location of Store B would suit him,

This was a temporary move to be reviewed in early 2017,

In May 2017 this temporary arrangement came to an end and the complainant was advised that he was to be moved back to a day position but still remaining in Store B, he commenced on Day shift on 4th of June 2017,

the complainant lodged a grievance in respect of being moved from night shifts back to day shifts this grievance was ongoing at the time the complainant lodged his complaint with the WRC.   

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991-   CA-00012588-001

Section 5 of the Payment of Wages Act regulates the deductions permissible to an employee’s pay. This is justiciable before an adjudication officer. Section 5(6) provides:

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The complainant has submitted that the respondent has made an unlawful deduction from his wages when he was moved from night shift wage to day shift wage on 5th of June 2017 resulting in a reduction in his wage of €164 per week. The respondent submits that the complainant was not entitled to the €164 as he was no longer working nights but had moved back to day shifts.

The question is whether the €164 night premium was “properly payable” to the complainant so that the non-payment of this amount constituted a deduction within the ambit of section 5.

In Sullivan v Department of Education [1998] E.L.R. 217, the EAT held that a deduction includes any amount payable to an employee, i.e. sums to which an employee is properly entitled. The relevant part of the decision states:

“There is no specific definition of a deduction in the Act; guidance can be taken from the definition of ‘wages’ in section 1 of the Act: ‘Any sums payable to the employee in connection with his employment, including: …’

We consider the word ‘payable’ to be significant. Whereby [the employer] contended that there is no deduction where an employee continues to receive the same amount (and the same composition) of wages from the outset, the Tribunal considers that if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act. We take ‘payable’ to mean properly payable. The definition of ‘wages’ goes on to give examples of types of payments which can amount to ‘wages’ and states that the payments can amount to wages ‘where payable under [his] contract of employment or otherwise…’. Although in our view it is not simply a matter of what might have been agreed or arranged or indeed paid from the outset, but in the view of the Tribunal, all sums to which an employee is properly entitled.” 

The complainant advised the hearing that he had moved from Store A to Store B in September 2016 where he took up the position of Night Crew Team Leader. The complainant told the hearing that he worked on Nights in Store B initially as acting Night Crew Manager for which he received a premium rate of time and a half of his day rate.

The complainant told the hearing that in October /November 2017 he was told that Store B was taking on a Night Crew Manager from outside the Store but that the complainant would continue on as Night Crew team leader.  

The complainant was told that his rate of pay was being changed to the night rate which is one and a third of the day rate.

The complainant advised the hearing that this new Night crew manager left after five or six weeks and that Ms. B, HR manager then asked the complainant if he would be interested in going for the Night crew Manager position. The complainant told the hearing that he declined to go for the position as he felt that he had been used to ‘fill the gap’ while they looked for a night crew manager, he stated that he was happy to remain in his position as night crew team leader.   The complainant told the hearing that he remained in this role for the next six months until June 2017.

The complainant told the hearing that he was called to a meeting with his manager Mr. L on 19th May 2017 where he was told that the night crew in Store B was being phased out and that he would be returning to day work as per his day shift contract this meant that his pay would be cut to day rate. The complainant states that he was told he was being given two week’s notice of this move back to day shifts. The complainant went on two weeks holidays and following his return from holidays moved to day shifts, this left him being down €164.1 per week. It is submitted by the complainant that this amounts to an unlawful deduction from his wages commencing on the 5th of June 2017.

The respondent told the hearing that the complainant had commenced work with them on a Night Crew contract in 2010 in Store A. In 2014 the respondent company made a decision to close the night operation in Store A and the complainant applied for and was granted a buyout of his night contract and he moved to a day shift contract, he received a sum of €21,259.96 in compensation for the buyout of his night shift contract.   The day shift contract was signed and agreed by the complainant. The respondent told the hearing that in September 2016 a temporary position became available in Store B the position was that of Night Crew general assistant and that this was offered to the complainant as he was going through a difficult time in his personal life and had indicated that a move closer to home in the location of Store B would suit him. The respondent submits that this was a temporary move to be reviewed in early 2017. The respondent told the hearing that this temporary arrangement came to an end in May 2017 and the complainant was advised that he was to be moved back to a day position but still remaining in Store B, he commenced on Day shift on 4th of June 2017. The complainant does not dispute that he commenced day shift work on 4th of June 2017 for which he was paid a day rate.

Applying the statutory provisions and the Sullivan decision, I am satisfied that the complainant did not work the night shift from the 5th of June 2017 and consequently I am satisfied that the night rate was not properly payable to the complainant for the period from 5th of June 2017.   Thus, I am satisfied that this does not amount to an unlawful deduction within the ambit of section 5 of the Payment of Wages Act and that this aspect of the claim must fail.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - CA-00012589-001

Terms and Conditions of Employment

Section 3 of the Terms of Employment (Information) Act, 1994 states:

An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, ……

Section 5 of the Terms of Employment (Information) act, 1994 obliges the employer to notify the employee of changes to a term or condition within 1 month and states :

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or  

The complainant submits that he was not notified in writing of a change to his terms of employment when he moved from day shift in Store A to night shift in Store B. The complainant told the hearing that he had commenced work with the respondent in 2010 in Store A where he was employed a Night Crew worker on a Night contract. The complainant told the hearing that he had moved to day working in January 2015 following a buyout of his night crew contract.

He told the hearing that in July 2016 he was then offered a move to night crew in Store B starting with a four-week trial which he successfully passed and that he was notified of this in a meeting which took place four weeks after he started in Store B.   The complainant advised the hearing that he had worked nights in Store B as night crew team leader with a chance of becoming night crew manager, and was told his contract would be changed to reflect his position as Night crew team leader.

The complainant advised the hearing that he had not received a new contract or a statement of a changes to his contract when he moved from day shift in Store A to night crew in Store B. The complainant told the hearing that he had received the rate of pay commensurate with night shift work until he was moved back to day shift in June 2017.

The complainant advised the hearing that he had initially worked in the role of night crew manager in Store B and that he was advised in late October 2017 or early November that the respondent was bringing in a Night crew manager from outside of the company but that the complainant would continue on as night crew team leader, which he did. The complainant advised the hearing that this Night crew manager left after five or six weeks and that Ms. B HR manager asked the complainant if he would be interested in going for the Night crew Manager position. The complainant told the hearing that he declined to go for the position as he felt that he had been used to ‘fill the gap’ while they looked for a night crew manager, he stated that he was happy to remain in his position as night crew team leader.   The complainant told the hearing that he remained in this role for the next six months until June 2017.

The complainant told the hearing that he was called to a meeting with his manager Mr. L on 19th May 2017 where he was told that the night crew in Store B was being phased out and that he would be returning to day work as per his day shift contract this meant that his pay would be cut to day rate.   The complainant states that he was told he was being given two week’s notice of this move back to day shifts.

The complainant stated that because he did not have a night crew contract the respondent was able to move him back to day shifts and pay him at a day rate instead of the higher night rate which he had been receiving.

The respondent told the hearing that the complainant had commenced work with them on a Night Crew contract in 2010 in Store A. In 2014 the respondent company made a decision to close the night operation in Store A and the complainant applied for and was granted a buyout of his night contract and he moved to a day shift contract, he received a sum of €21,259.96 in compensation for the buyout of his night shift contract.     The day shift contract was signed and agreed by the complainant. The respondent told the hearing that in September 2016 a temporary position became available in Store B the position was that of Night Crew general assistant and that this was offered to the complainant as he was going through a difficult time in his personal life and had indicated that a move closer to home in the location of Store B would suit him. The respondent submits that this was a temporary move to be reviewed in early 2017. The respondent told the hearing that this temporary arrangement came to an end in May 2017 and the complainant was advised that he was to be moved back to a day position but still remaining in Store B, he commenced on Day shift on 4th of June 2017.  The respondent told the hearing that the complainant submitted a grievance in respect of this matter and that the complainant has since then been provided with night work when it was possible to facilitate him with night work on a temporary basis.

The respondent advised the hearing that the complainant did not receive a new contract following his move to Store B as it was only a temporary arrangement.   The respondent advised the hearing that the complainant was at the time going through a difficult time in his personal life and that he had indicated that a move closer to home to Store B would suit him. The respondent also stated that the complainant had indicated that his personal family circumstances meant that it suited him better to work nights and that the respondent facilitated this while the night position was available in Store B. The respondent stated that the complainant still retained the terms and conditions of his day contract which he had been given after the buyout of his night contract but stated that he was temporarily working night shifts and being paid a night rate for this work while it was ongoing.

The complainant in submitting this claim submits that the move to night crew in Store B was not a temporary position and that he should have received a new contract for this position.   The complainant agrees that he was paid at the night rate while working in the night crew in Store B. The complainant also agrees that he was paid compensation in return for the buyout of his night crew contract in January 2015. The respondent submits that it was entitled to move the complainant back to his day shift in accordance with its disengagement of night crew in Store B and in accordance with the complainant’s day shift contract and states that it had stopped issuing permanent night crew contracts due to its phasing out of night crews in many of its Stores. The respondent also raises the issue that the complainant had already received a buyout for his night crew contract and could not receive a second buy out in return for moving back from night crew to day shift again.  

It is clear from the evidence adduced that the complainant who was in possession of a day contract following the buyout of his night crew contract did move to Store B as a night crew worker and was not provided with a new contract or a written statement of changes to his contract following this move.   The respondent submits that this move was a temporary measure aimed at facilitating the complainants change in family and personal circumstances while the complainant has advised that his understanding was that it was a permanent move following his completion of the four-week trial period.   While I note that the complainant has been kept on in Store B and has raised no objection to that, it appears that his objection relates to his being moved from night crew back to day crew and his contention that his move to night crew in Store B was a permanent move.

I am satisfied from the totality of the evidence adduced that the complainant was facilitated with the move to Store B and that this location suited his personal circumstances as no evidence was given to suggest that he requested a transfer back to Store A when his night work finished at Store B. I am also satisfied that night work suited the complainant given that he lodged a grievance when moved from night work and has repeatedly sought a return to night work. Therefore, I am satisfied on balance that the respondent’s reason for the transfer of the complainant was in fact an attempt to facilitate the complainants personal and family circumstances by moving him to night crew in Store B. This is also supported by notes of meetings where the complainant has indicated that night work suited him better.

I also note the respondent’s statement that it is no longer issuing permanent night crew contracts and that it has begun the process of disengaging night crew in many of its Stores. Having said that it appears that the complainant did not receive anything in writing to confirm this move to Store B or to night work in Store B and also received nothing in writing to confirm any change to his terms and conditions of employment including changes to his place of work, hours of work and rate of pay.   I am satisfied that the failure of the respondent to provide any such information in writing even if the changes were part of an arrangement agreed to facilitate the complainant’s personal circumstances amounts to a breach of the Terms of Employment (Information) Act .   Accordingly, I find that the respondent has breached the Terms of Employment (Information) Act and I order that the Respondent pay the Complainant compensation of €500 within 42 days of the date of this Decision.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991-     CA-00012588-001

I am satisfied that this does not amount to an unlawful deduction within the ambit of section 5 of the Payment of Wages Act and that this aspect of the claim must fail.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - CA-00012589-001

I find that the respondent has breached the Terms of Employment (Information) Act and I order that the Respondent pay the Complainant compensation of €500.