Complainant

Respondent

Anonymised Parties

Catering Assistant/Cashier

Catering Company

Representatives

Unite the Union

Advokat

Act

Complaint Reference No.

Date of Receipt

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

CA-00018828-001

30/04/2018

The Complainant, Ms Margaret Higgins, transferred to the Respondent’s employment pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 on 5 August 2014.

The Complainant submits that there has been an unlawful deduction from her wages within the meaning of Section 5 of the Payment of Wages Act 1991 as a result of an alleged failure on the part of the Respondent to pay her the correct amount of sick pay for a four week period of absence in September 2017.

The Respondent rejects the claim and submits that it is out of time.

The Respondent submits that on her complaint referral form, the Complainant stated that the relevant date on which she should have received the correct payment was 13 September 2017.

The Respondent submits that the “date of contravention”, if there is one, is 13 September 2017. The Respondent maintains that, in that context, the Complainant had until 12 March 2018 to submit her complaint.

The Respondent submits that since the Complainant did not submit her complaint until 30 April 2018 the complaint is out of time.

The Complainant contends that she submitted this claim to the WRC under the Payment of Wages Act 1991 on 8 February 2018 and selected referral to the Inspection Services of the WRC as the preferred redress option.  

The Complainant submits that, after discussion with a member of staff of the WRC Inspection Services, she opted to submit the claim the WRC under the same Act, the only difference being that the preferred redress option was adjudication by the Workplace Relations Commission.

She submits that the Complaint was submitted on time.

Before deciding on the substantive issue, I must first decide whether or not the complaint was submitted to the WRC within the required timeframe.

The time limits for submitting claims to the Workplace Relations Commission under the Terms of Employment (Information) Act 1994 are set out in Section 41 of the Workplace Relations Act 2015.

Section 41 (6) of the Workplace Relations Act provides that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

I note that the last day of the Complainant’s sick leave was 27 September 2017. I find, therefore, that the last day on which the Complainant could have submitted a complaint which would comply with the requirements of Section 41 of the Workplace Relations Act 2015 is 26 March 2018.   The Complainant submitted her claim on 30 April 2018.

If a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In essence, the general principle which applies is that something must be advanced by the Complainant which will both explain and excuse the delay. 

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows; 

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

I note that the Complainant submitted a complaint to the WRC using the WRC online complaint referral form on 8 February 2018 selecting investigation as the preferred redress option.

I find that the Complainant’s understanding of the most appropriate redress option for her complaint only crystallised after a discussion with a member of staff of the WRC.

I find, therefore, there was reasonable cause which both excuses and explains the delay in the Complainant submitting her complaint on time.

Accordingly, I find that I have jurisdiction to hear this complaint.

The Complainant submits that she has worked as a Catering Assistant/Cashier in the same location for over 20 years. The Complainant submits that she has gone through a TUPE in 2007 and 2014.

The Complainant submits that her gross weekly pay is €517.56 and her normal weekly working hours are 37.5 hours. The Complainant submitted a copy of the “Employee Data Sheet” which she completed when she transferred to the Respondent. Under the heading “Hours of Work”, the Complainant entered a figure of 37.5 hours. The Complainant also submitted a copy of an email from the General Manager of the transferor in which it was stated that the Complainant’s normal working week was 37.5 hours.

The Complainant submits that on both transfers, the Sick Scheme benefits were one of the conditions of employment which had been protected.

The Complainant contends that Sick Pay has always been paid at the normal working weekly hours of 37.5 hours per week. In support of this assertion, the Complainant submitted a copy of a payslip from 2009 which showed that she was paid for 37.5 hours during a week when she was absent on sick leave.

The Complainant submits that she was on sick leave for 4 weeks from 31 August 2017 to 27 September 2017. The Complainant contends that her sick pay was unilaterally reduced from 37.5 hours pay per week to 33.5 hours pay per week while she was on sick leave.

The Complainant contends that no engagement has taken place nor has any agreement been reached with the Union on this reduction. The Complainant maintains that the Employer does not have the right to change the terms of a Contract of Employment without the Employee’s consent.

The Complainant is seeking repayment of the sum of €219.20 which is the difference between payment for four weeks at 33.5 hours per week and four weeks at 37.5 hours per week.

The Complainant has submitted the following precedent in support of her case: Employee v Employer (PW246/2009).

The Respondent submits that the Complainant transferred to the Respondent’s employment pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 on 5 August 2014.

The Respondent submits that, in spite of repeated requests, they were not provided with a written statement of the Complainant’s terms and conditions at the time of the transfer. The Respondent asserts, however, that it was provided with certain information in relation to the Complainant’s terms and conditions which confirmed that the Complainant had worked 30 hours per prior to her transfer.

The Respondent submits that in the aftermath of the Complainant’s transfer, her hours of work fluctuated in accordance with the requirements of the catering unit in which she worked.

The Respondent submits that the Complainant was absent from work from 31 August 2017 to 28 September 2017.

The Respondent submits that in calculating the Complainant’s sick pay entitlement, the Respondent looked at the average hours worked by the Complainant in the thirteen weeks prior to the commencement of her sick leave. The Respondent submits that this is similar to the mechanism used to calculate normal weekly remuneration under the Redundancy Payment Act 1967.

According to the Respondent, the average weekly hours worked by the Complainant in the thirteen week period prior to her sick leave was 33.3 hours. The Respondent maintains that the Complainant was paid for 33.5 hours per week for each of the four weeks that she was on sick leave.

The Respondent submits that calculations performed for 2015, 2016 and the first six months of 2017 also confirm that the average weekly hours worked by the Complainant were in fact 33.8 – 34 hours.

The Respondent submits that the Complainant is seeking to rely on the longest possible hours worked by her at various time during the course of her employment. The Respondent asserts that she has no entitlement to do so.  

The issue for decision by me is whether the Complainant received the appropriate level of remuneration when she was absent on sick leave. I have considered the evidence adduced by the parties and read the submissions and documents furnished.

I note that the Complainant submitted a document entitled “Sick Pay Scheme”, which provided that “sick pay shall be paid at normal weekly rate”. However, the document does not provide a methodology for calculating the normal weekly rate.

I note all the evidence submitted by the Complainant in support of her assertion that her normal weekly rate was 37.5 hours.

I note, however, that the Respondent has provided figures which show that the Complainant’s average working week was 34.03 hours in 2015; 33.80 hours in 2016; and, 31.58 hours in 2017. I also note that the Respondent has provided figures which show that the Complainant’s average working week for the 13 weeks preceding the Complainant’s sick leave in 2017 was 33.3 hours.

I find that the Complainant did not work a standard working week in 2015, 2016 or 2017. I find, therefore, that it was acceptable for the Respondent to rely on the calculation mechanism provided for in the Redundancy Payment Act 1967 when calculating the weekly rate applicable during the Complainant’s sick leave.

Accordingly, I find that this complaint is not well founded.

Having considered the written and oral submissions of the parties and all of the evidence adduced at the hearing of this complaint, I declare that the complaint is not well founded.

Time limits; complaint not well founded