ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011402

Complaint(s):

Date of Adjudication Hearing: 21/06/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant originally commenced employment in a temporary capacity with the Respondent on 1 March 1997. The Complainants weekly contracted hours were 39 hours per week.

The Complainant was appointed, in a permanent capacity from 21 January 2000. Her contracted hours of this post were 39 hours per week.

On 20 February 2001, the Complainant requested to have her working hours decreased from 39 hours a week to 24 hours per week. This request was facilitated and the Complainants hours were reduced from 15 April 2002.

The Complainant applied to increase her hours to full time hours i.e. 39 hours per week. The Complainants request was facilitated and she returned to her full time hours from 14 November 2011.

Following interview, the Complainant was assigned to the position of temporary Medical Laboratory Aide with effect from 14 November, 2011, and was remunerated by way of an acting allowance.

The Complainant worked 39 hours a week in the post of temporary Medical Laboratory Aide from her commencement in this role on the 14 November 2011 until late 2015 when her hours were reduced (pro rata to 39 hrs) following an Occupational Health recommendation.

The Complainant is currently being paid on the maximum point of the salary scale for her role.

Summary of Complainant’s Case:

The Complainant stated that the Respondent made an unlawful deduction of 3.2 hours pay which the reduced her hourly rate of pay from €18.38 to €17.45 giving a total of €1,569.60 both contrary to the Payment of Wages Act, 1991 and the associated contract of employment thus, the Complainant is seeking payment of €1569.60.

A contract was issued on 22 August 2016 to the Complainant which outlined 37 hours per week. The Complainant queried the number of hours outlined in her contract with HR and that she was reassured that it was correct. Following this confirmation from HR, the Complainants contract of employment was signed by both the Complainant and the Respondent on 6 September 2016. The Complainant was not told about the error until 23 September 2016.

On 1 June 2017 the Complainant’s wages were reduced by the Respondent unilaterally thereby reducing the working hours of the Complainant by 3.2 hours along with not being paid the proper rate of pay which caused a reduction in the wages of the Complainant. The Complainant states that this was in breach of her signed contract of employment.

The Complainant stated that the Respondent acted in an ultra vires manner by unilaterally altering the contract of employment.

The Complainant argues that the Respondent unilaterally changed the contract of employment without consultation, negotiation or by agreement. The Respondent reduced the working week of the Complainant by 3.2 hours thus causing a deduction in the Complainants salary.

The Complainants hours were deducted based over a twenty-pay period from the 1st of June 2017. There was no clause within the Complainants contract of employment which permitted the Respondent from making deductions from the Complainants contracted hour or hourly rate of pay.

In line with the Complainants contract of employment, it was agreed that she would be paid an hourly rate of €18.38. Given that the Complainants hours were reduced by 3.2 without agreement or consultation, the Complainants hourly rate of pay amounted to €17.45. The Complainant argues that the Respondent deducted 94cent from her hourly rate of pay unlawfully and without her consent.

Summary of Respondent’s Case:

The Respondent confirmed that the standard full time weekly working hours for all grades were in line with the aforementioned agreement and are 39 hours per week. This includes the grade of Medical Laboratory Aide.

The Complainant currently being paid on the maximum point of the Medical Laboratory Aide salary scale. The employer is confirming that The Complainant is being paid on the correct point of the Medical Laboratory Aide salary scale.

The Complainant was permanently appointed with effect from 22 August 2016. The weekly contracted hours of this grade remained 39 hours per week. A contract was issued to The Complainant. This contract of employment identified an erroneous weekly working commitment of 37 hours per week. This contract was signed by The Complainant on the 6th September 2016.

Correspondence was issued to The Complainant dated 23 September 2016 advising that the contract of employment had identified an erroneous weekly working commitment of 37 hours per week. Management advised The Complainant that the correct weekly working hours was 39 hours per week. This letter also confirmed that her move from temporary to permanent had not altered her weekly contracted hours i.e. 39 hours per week. The Complainant was advised that an amended contract would issue to her shortly. The error was acknowledged by the Respondent and on 28 September 2016. The Complainant and the other staff member who had been issued with incorrect contracts were met with by the Respondent on 28 September 2016 to advise that the Contract of Employment issued to them had identified an erroneous weekly working commitment of 37 hours per week and that an amended contract, identifying a weekly working commitment of 39 hours per week, would be issued in due course. The Complainant indicated that she was not in agreement with any change being implemented to the contract which she had signed and returned to the Respondent. The Complainant advised that until a new signed contract was in place she would continue to work reduced hours pro rata to 37 hours per week as per the terms of the contract that she had signed.

Subsequently, the amended contract reflecting the correct weekly contracted hours of 39 hours per week was issued to The Complainant on 4 October 2016. On 8 November 2016 a reminder letter was issued to The Complainant asking that she sign and return the Contract of Employment issued to her on 4 October 2016. The Respondent confirmed that to date this amended contract has not been returned by The Complainant.

On 30 November 2016 a letter issued to The Complainant confirming her permanent appointment with effect from 22 August 2016. This correspondence confirmed to the Complainant that the standard weekly working hours for her grade were 39 hours per week and that The Complainant was to be paid on the maximum point of the salary scale.

The Respondent argues that the role the Complainant is employed under is a full time position i.e. 39 hours per week. The Respondent outlined that all employees employed in this role are contracted to work 39 hours per week. The Respondent confirmed that the Complainant is currently working on reduced hours based on the recommendations of an Occupational Health Professional.

Following the issuing of the contract with the erroneous weekly hours of 37hrs per week, it is noted that The Complainant commenced working 29.6 hours per week i.e. 4 days per week x 7.4 hr per day, and, consistent with the roster that The Complainants salary should have been adjusted to reflect a pro rata reduction of the whole time weekly hours for the grade i.e. 39 hours a week.

For a period of time The Complainant worked 29.6 hours a week but was being returned on Payroll for hours in excess of same which resulted in an overpayment to The Complainant. Since Pay Period 22/2017 i.e. 1st June 2017, The Complainant’s salary has been adjusted to reflect that she is working 29.6 hours a week.

The Respondent is willing to facilitate The Complainant increasing her hours to 31.2 hours per week to reflect the aforementioned weekly roster which was put in place in line with Occupational Health recommendations.

The terms and conditions of employment for the Complainants role and grade have been determined by way of collective agreements. The Complainant has been advised that an administrative error led to her being issued with a Contract of Employment that contained an erroneous weekly working commitment. An amended contract was issued shortly thereafter to The Complainant. The Respondent argue that the Complainant would have been aware of the weekly working commitment (39 hours) for her role and grade given that she had worked in that role on a temporary basis prior to her permanent appointment. The Respondent also stated that correspondence dated 23 September 2016 confirmed a change in tenure from temporary to permanent, however this process did not alter weekly working hours. The Respondent stated that once it recognised that it made an error, every effort was made to consult with The Complainant in an effort to resolve the issue.  

The amended contract forwarded to The Complainant on 4 October 2016 remains unreturned by The Complainant. It is the position of the Respondent that they acted more than reasonably in affording such a period of time to The Complainant to return same. The Respondent believe that the Complainant has been treated in a fair and consistent manner.

Findings and Conclusions:

There was a full opportunity for both the Respondent and the Complainant to put forward detailed submissions via written and oral evidence at the hearing.

I have considered all information presented to me in conjunction with legislation and case law in reaching a finding.

I find that the key issue in dispute is the fact a contract was issued to regularise the Complainant’s status to full time which contained an error and stated 37 hours instead of 39 hours. The Complainant clarified this point with HR prior to signing the contract and this matter remained unsolved for a significant period.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act and the Payment of Wages Act, 1991.

I have investigated the above complaint and make the following decision in accordance with the relevant sections of the legislation set out above and the following are my conclusions:  

The case before me only focuses on if the employee was underpaid and I have to be guided by the legislation in that regard. Based on the fact the employee was on the top of the scale for her role and was notified of the error and worked less hours she was not underpaid pro rata to the correct rate for her role therefore my finding is her case must fail.  Notwithstanding this it is up to the employer to decide what is the best approach to resolve a matter from an employee relations perspective with a long term employee that has been a protracted issue and the source of the error was questioned by the employee when it occurred and it is now over a year later since the matter occurred however that is not for me to advise.

Dated: 20/09/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery