ADJ-00014689

Complainant

Respondent

Anonymised Parties

Receptionist

Hair & Make Up Salon

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-00019188-001

15/05/2018

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

CA-00019188-002

15/05/2018

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

CA-00019188-003

15/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019188-004

15/05/2018

The Complainant started her employment with the Respondent on 1st July 2016 as a Receptionist. Her employment ended on 7th August 2018. The parties verified that the Complainant was paid €288 weekly and worked 24 hours.

The Complainant has referred a number of claims to the Workplace Relations Commission (‘WRC’) on 15th May 2018, as outlined below. The dispute under the Industrial Relations Act, 1969 (CA-00019188-004) was withdrawn at the adjudication hearing.

The Complainant outlined the events which led to her complaint as follows.

The Complainants submits that she commenced her employment with the Respondent in July 2016 as a receptionist. Although the Respondent did not furnish her with a statement of her terms and conditions of employment at the time, her agreed hours of work consisted of three 8-hour shifts on Tuesday, Thursday and Friday each week. The Complainant submits that in December 2017 the Respondent advised her of a requirement to change her working week from the agreed pattern to working Thursday, Friday, Saturday. This revised pattern did not suit the Complainant’s family commitments and she disputed the entitlement of the Respondent to impose the changes. However, as a compromise the Complainant agreed to work two Saturdays per month. The Complainant submits that, despite this concession by the Complainant the Respondent continued to request that the Complainant would abandon working on Tuesdays and commit to working every Saturday. The Complainant was not prepared to facilitate this request and the resulting dispute evolved into circumstances whereby the Complainant was under the understanding that her employment was being terminated in March 2018. On that basis the Complainant wrote to the Respondent on 12th March 2018 setting out her understanding that she had been dismissed and sought confirmation as to the reasons being relied on by the Respondent to terminate her contract of employment. The Complainant contends that she received a letter dated 22nd March 2018 from the Respondent advising that it was the Respondent’s understanding that the Complainant had resigned her position and that the Respondent was offering her the option of taking up employment on the revised working hours. The Complainant responded on 26th March 2018 clarifying that it was never her intention to resign her position and that she had sought a reference and P45 on the basis of her belief that she had been dismissed. In this letter the Complainant committed to working 2 Saturdays per month. The Complainant submits that by way of a letter dated 28th March 2018 the Respondent confirmed that the Complainant was not dismissed but continued to insist that the Complainant would work every Saturday or alternatively reduce her working arrangements by one day per fortnight. The Complainant claims that she wrote to the Respondent on 28th March 2018 to advise that she would be prepared to commit to the new working arrangements if the Respondent was prepared to confirm to the Department of Employment Affairs and Social Protection (DEASP) that the new working arrangements were a business requirement and that the Complainant did not have an option in respect of same. This confirmation was required to ensure that the Complainant could avail of a social welfare payment for the days she would not now be working. The Complainant submits that on 17th April 2018 she received a response which stated that the Respondent would not confirm in writing to the Department that the Complainant’s hours of work were being reduced as a business requirement. In response the Complainant by way of letter dated 23rd April 2018 confirmed that her agreement to reduce her working hours was contingent on the Respondent’s cooperation with the request regarding the DEASP. In that letter the Complainant again committed to working two Saturdays per month but did not accept any reduction in her normal weekly hours. The Complainant submits that she received a response dated 23rd April 2018 in which the Respondent outlined that she was not required on Tuesdays and that it was the Respondent’s position that the Complainant was now surrendering 2 days per month due to the fact that she was unable to work every Saturday. The Respondent went on to advise that the Complainant would only be paid for the hours she worked. As per her normal working arrangement the Complainant presented herself for work on Tuesday 24th April but was sent home by the Respondent. The Complainant submits that she again wrote to the Respondent on 25th April to advise that any understanding that the Respondent might have in relation to an agreement in respect of her working hours was misplaced and that she would be undertaking the new working arrangements under protest while matters were being referred to the WRC.

The Complainant submits that the Payment of Wages Act provides protection to workers in respect of unauthorised or illegal deductions from their wages. Under the Act wages are defined as: “any sum payable to the employee by the employer in connection with his employment”. The Complainant submits that the Act goes on to stipulate under Section 5 that the non-payment of wages properly due to an employee save those arising as a result of a miscomputation constitute a deduction from wages. The Complainant submits that her complaint was received by the WRC on 15th May 2018. In her complaint form the Complainant stated that the monetary value of the pay not received was €96 which she should have received on 4th May 2018. At the hearing, the Complainant submitted that during the 6-month reference period under the Act the Complainant as per the terms of her agreed conditions of employment was due to work on Tuesday 24th of April and Tuesday 8th May 2018. Her employer prevented the Complainant from attending work on these days and failed to pay her wages due for these days. There was no contractual entitlement on the Respondent to prevent the Complainant from attending work and no contractual entitlement allowing the Respondent to avoid paying the Complainant’s wages for the days in question. The Complainant was due to work 8 hours on each occasion on an hourly rate of €12 per hour totalling a deficiency in wages of €192. The Complainant contends that this deficiency arises from an unauthorised and illegal deduction from the Complainant’s wages.

The Respondent did not dispute the chronology of the events as outlined by the Complainant. The Respondent submits that she opened the business in March 2016. She noted that she was not fully aware of her obligations as an employer. The Respondent submits that she entered into a verbal agreement with the Complainant, who was her friend, in respect of her working hours/days on the understanding that once the business picked up these would change to cater for the business needs. The Respondent submits that as she operates a service business that operates from Tuesday to Saturday and in circumstances where the business requirements are driven by customers she made it clear that flexibility would be required.

The Respondent contends that the business became busier and the changes in respect of working pattern have been discussed with the Complainant since November 2017. The Respondent submits the business was quiet on Tuesdays but, due to the nature of the industry, Saturdays became one of the busiest day of the week. The Respondent submits that, as the Complainant’s days of work were now required to change the Complainant was compensated by being given a pay increase in December 2017. The Respondent submits that the Complainant declined to work Saturdays. The Respondent submits that she explained to the Complainant that there is no need for her to work on Tuesdays but she is now required to work on Saturdays. The Complainant requested then the Respondent to fill out a form for the DEASP to confirm that her hours of work are being reduced as a business requirement. The Respondent refused to sign such a form as she was in a position to provide the Complainant with her normal 24 working hours but on different days of the week (switching Tuesdays to Saturdays). The Complainant agreed to work two Saturdays a month which was not sufficient for the business requirements. The Respondent submits that, having discussed the matter with her accountant she confirmed to the Complainant that she could not afford to hire someone else to cover Saturdays in addition to the Complainant’s three days a week.

The Respondent submits that it became unclear whether or not the Complainant resigned her position and as the Complainant requested a written reference and P45 and informed the Respondent that she had a job interview on 21st March 2018 the Respondent understood that she had, in fact, resigned. The Respondent emphasised that she made it clear to the Complainant in the letter dated 22nd March 2018 that the Complainant was not dismissed.

In respect of the claim under the Payment of Wages Act, the Respondent submits that on the dates in question the Complainant was paid her normal weekly wage of €288 gross. The Respondent exhibited payslips confirming same. The Respondent presented the Complainant’s payslips for the period 3rd March – 14th July 2018. The Respondent noted that, as per payslips the Complainant was on occasion paid less than €288 a week (post submission of her claim to the WRC) in circumstances when she worked less than the agreed 24 hours a week. The Respondent submits that the Complainant was paid €12 per every hour she worked.

The Complainant claims that on two occasions in the period of six months from the date of the referral of complaint, namely on 24th April and 8th May 2018 the Respondent prevented her from working and failed to pay her wages due for these days.   The Complainant argues that these were her normal working days as per the verbal agreement with the Respondent. The Respondent exhibited copies of payslips for the weeks in question confirming that the Complainant was paid her normal weekly wage of €288 gross. The Complainant requested to be given the opportunity to submit additional evidence post-hearing in form of bank statements and it was agreed that any evidence would be submitted within a week from the date of the hearing. No such evidence has been furnished within the agreed timeframe.

Having considered the parties’ submission and reviewed the evidence before me I declare that the complaint is not well founded.

The Complainant submits that she did not receive a written statement of her terms and conditions of employment within the specified period under the Act. The Complainant submits that in the Respondent’s letter of 22nd March 2018 there is a clear confirmation that the Respondent did not comply with the requirement of the Act. The Complainant, giving the difficulties that this omission has created is seeking the full compensatory remedy available under Section 7 of the Act.

The Respondent acknowledges that the relevant information was not provided to the Complainant within the requisite timescale. The Respondent submits that she had endeavoured to rectify that and in February 2018 she provided the Complainant with a written statement of her terms and conditions of employment including details of the company’s grievance and disciplinary procedure. The Respondent submits that the Complainant refused to sign the document.

There was no dispute that the Respondent did not furnish the Complainant with a written statement of her terms and conditions of employment within the time frame prescribed in the Act.

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

“(1) 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 …… “.

I find that the Respondent was in breach of Section 3 of the Terms of Employment (Information), Act 1994 and that the Complainant should have been furnished with the written statement of Terms and Conditions of Employment within two months after the commencement of employment.

Section 7(2)(d) of the Act states that an employer can be ordered “to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration”.

Taking all of the circumstances of this case into consideration I direct the Respondent to pay the Complainant compensation of €250.

The Complainant submits that the Respondent attempted to alter her conditions of employment without proper notification or consent. The Complainant submits that Section 5 of the Terms of Employment (Information) Act sets in place a requirement on employers to notify workers of changes to the Statement of Terms of Employment required under Section 3 of the Act. The Complainant argues that where an employer had not complied with the provision of Section 3 then any changes being implemented by that employer are automatically in breach of Section 5. The Complainant contends that, in this case, the Respondent did not comply with Section 3 and as such denied the Complainant the protections afforded her under Section 5 of the Act. The Complainant is seeking the application of the maximum compensation of 4 weeks’ pay.

The Respondent submits that from November 2017 onwards she has been discussing with the Complainant the changes to her terms and conditions of employment. These related to the Complainant’s days of work and an increase of her rate of pay. The Respondent submits that, as per verbal agreement entered into at the commencement of the Complainant’s employment, she worked Tuesdays, Thursday and Fridays. This was subject to the business requirements. The change in the business needs meant that there was no longer a requirement for the Complainant to work on Tuesdays. Instead, she was now required to work on Saturdays. A written document entitled ‘Statement of Terms and Conditions of Employment’ was given to the Complainant on 28th February 2018. The Complainant was requested to read and sign the document, and return to the Respondent. The document reflected the changes proposed. The Respondent submits that the Complainant refused to sign the document.

At the core of this complaint is the proposed change in respect of the Complainant’s working arrangements. The Complainant submits that the Respondent was in contravention of the Act at Section 5 in that when the Complainant’s days of work changed from Tuesday to Saturday.

Section 5(1)(a) of the Terms of Employment (Information) Act, 1994 provides that “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,…”

There was no dispute that on 28th February 2018 the Respondent furnished the Complainant with a document entitled ‘Statement of terms and conditions of employment”. I find that the document given to the Complainant outlined clearly that her working times would be three days per week, namely Thursday 9am to 5.30pm, Friday 9am to 5.30pm and Saturday times to vary. I note that the document was not signed by the Respondent. However, I accept that the Complainant was asked to sign and return it to the Respondent for completion. The Complainant was therefore informed in writing of the new, changed working arrangements. The discussion in respect of the change took place from around December 2017. It is unclear when exactly was the Complainant asked to work on Saturday. However, it appears that the key events related to this complaint occurred in or around the period from the end of February/beginning of March onwards. I am therefore satisfied that the Respondent notified the Complainant of the change in a timely manner. In the instant case I do not find that the Respondent acted at variance with the provisions of the legislation.

I declare that the complaint is not well founded.

Terms and conditions of employment- changes in terms of employment - unlawful deductions-