ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00013708
Parties:
| Complainant | Respondent |
Parties |
|
Representatives |
| Represented |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00017696-001 | 28/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00017696-002 | 28/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00017696-003 | 28/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00017696-004 | 28/02/2018 |
Date of Adjudication Hearing: 30/10/2018
Workplace Relations Commission Adjudication Officer: Orla Jones
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 79 of the Employment Equality Acts, 1998 – 2015 and Section 8 of the Unfair Dismissals Acts 1977-2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00017696-001 | 28/02/2018 |
Background:
The complainant referred complaints against the above respondent to the Workplace Relations Commission on the 28th of February 2018. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 30th of October 2018. Final information was received on 13th of November 2018. |
Summary of Complainant’s Case:
It is submitted that: the complainant was employed by the respondent as Leader Program Manager from 25th of April 2017 to 18th of January 2018, the complainant was dismissed 18th of January 2018 following a meeting on 8th of January 2018 where the CEO Mr. M raised issues in respect of her commitment to the company in relation to her performance and ability to fulfill the role, The complainant had previously sought to change her start and finish times from 9 to 5.30 to 8.45 to 5.15 to facilitate her sons creche opening times, this was approved in her second week on the job, The complainant at the commencement of her employment had requested a 4-day week to facilitate her childcare arrangements but was refused this, The complainant regularly worked overtime for which she was not paid and on one occasion attended a show on a Sunday and had to make alternative childcare arrangements. She was told to take annual leave when her son was sick, and this should automatically have been granted as Force Majeure leave, She raised this with the CEO on her return to work who granted her the force majeure leave and amended her annual leave record accordingly. |
Summary of Respondent’s Case:
It is submitted that: the complainant was employed by the respondent as Leader Program Manager from 25th of April 2017 to 18th of January 2018, the complainant sought and was granted a change to her start and finish times from 9 to 5.30 to 8.45 to 5.15 to facilitate her sons creche opening times, this was not a problem and was approved in her second week on the job in May 2017, The complainant at the commencement of her employment in April 2017 had requested a 4-day week to facilitate her childcare arrangements but was refused this as it was a full-time position, however the respondent instead offered the complainant an additional €1,000 to help towards the cost of the additional day of childcare, The complainant was on probation for three months following her commencement of employment she attended a performance review meeting in July 2017 where several concerns were raised with her in respect of her performance, The complainant did not demonstrate the required improvement and another performance review meeting was scheduled for December 2017, The complainant requested that the December review meeting be postponed to January 2018 and it was rescheduled for the 8th of January 2018, The complainant was dismissed due to poor performance on of January 2018 with one weeks’ notice, The complainant’s dismissal was unrelated to her family status. the complainant was never discriminated against on grounds of family status and in fact was given an extra €1,000 at the commencement of her employment to help with childcare costs. |
Findings and Conclusions:
The issue for decision by me now is whether or not the respondent discriminated against the complainant on grounds of family status, in terms of section 6 and contrary to section 8 of the Employment Equality Acts, 1998 to 2015 in respect of her dismissal. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing. Section 6(1) of the Employment Equality Acts, 1998 to 2008 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Section 6(2) (h) of the Acts defines the discriminatory ground of family status as follows – “as between any two persons ….. that Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of family status. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that section 85A: “places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”. Discriminatory Dismissal The complainant submitted her complaint on 28th of February 2018. The complainant told the hearing that she had been dismissed on 18th of January 2018 and that this dismissal was due to her family status and the fact that she had a young son. The complainant in support of this assertion told the hearing that she had been called to a performance review meeting on the 8th of January 2018 where Mr. M the CEO raised issues in relation to her commitment to the company in relation to her performance and ability to fulfil the role. She told the hearing that he acknowledged at the time that he shouldn't mention his and that he was probably going to cause problems for himself by doing so. The complainant submits that the reference to her lack of commitment to the company referred to her family status and to the fact that she had requested in May 2017 to start 15 minutes earlier and finish 15 minutes earlier to facilitate the opening and closing times of her sons creche. The complainant told the hearing that this request was approved in her second week in the job back in May 2017. The complainant advised the hearing that she had always worked her hours and had arranged for alternative childcare when she had evening meetings as part of her work and on one occasion she had attended a meeting on a Sunday and had to make alternative childcare arrangements. The complainant told the hearing that she had at during her interview for the post reminded the respondent that she was relocating with her son from another county and that her husband was staying in the other county and that she needed to find a creche to suit her work hours. The complainant stated that she had requested a 4-day week from the outset but that this had been refused with the respondent stating that it was a full-time position. The complainant stated that she had on 2nd of September 2017 texted to say that she could not come in to work as her son was sick, on 11th of October her son was sick again and she texted Ms. L to say she was unable to attend work that day. The complainant stated that Ms. L had replied advising her that she would have to take an annual leave day. The complainant advised the hearing that when she returned to work she asked Ms. L for her annual leave sheet to get the issue resolved and asked again for a copy of the employee handbook that had the various company policies and procedures. The complainant stated that she was given the sheet but not the handbook as she was told that it still was being updated and I’d be given a copy once it was adopted by the board. The complainant stated that having worked in HR for 10 years she was aware that she shouldn’t have to take an annual leave day and searched for the company policy on force majeure leave. She then explained to Ms. L that she should not have to take annual leave for when her son was sick as she was entitled to take force majeure leave on such occasions. The complainant stated that Ms. L replied by stating that in all her time there she has taken annual leave to cover any days her children were sick. She said she always keeps a few days just in case they’re sick. The complainant told the hearing that she then asked for a meeting with Mr. M, CEO who advised her that Ms. L had been wrong and that of course the company would allow Force Majeure Leave but that they never had to before that. Mr. L told her that family comes first and that nobody should have to take leave annual or Force Majeure. The complainant then asked Mr. M to amend her annual leave record which he said he would. The complainant stated that she had to follow up on this with two emails before it was eventually done. The respondent advised the hearing that the complainant was dismissed due to performance issues which had been raised with her initially at her performance review meeting in July 2017. The respondent produced a record of the meeting of July 2017 where a number of performance issues and concerns had been raised with the complainant. The respondent stated that these issues had not improved and that problems continued to exist and arise which resulted in its decision to dismiss the complainant following the meeting of 8th of January 2018. The respondent stated that the decision to dismiss was in no way related to the complainant’s family status. The respondent told the hearing that it was aware of the complainant’s family status prior to offering her the job. The respondent stated that the complainant had advised them from the outset that she was relocating from another county with her son and that her husband would remain in the other county initially. The respondent stated that the complainant following her success at interview for the post had requested a four-day week citing childcare costs for her son to spend 5 days a week in a creche as the reason for her request. The respondent advised the hearing that it could not grant this request as the role was a full-time position but stated that it had decided to increase the complainants offered salary from the initial €50,000 to €51,000 to assist her with the additional childcare costs associated with her son attending creche for the additional day each week. The respondent stated that the complainant reverted with a statement that the extra childcare cost would require an extra €4,500 of her yearly salary. The respondent stated that it could not go any higher with the salary and the complainant accepted this and commenced employment on 25th of April 2017. The respondent stated that the complainant had come to them in the second week of her employment stating that she was finding it difficult to work around the creche opening and closing times given her work hour of 9 to 5 and given traffic conditions at those times. The complainant had requested that she be allowed to start at 8 45 instead and finish at 4.45. The respondent stated that it had no problem with this and granted her request. The respondent advised the hearing that it had been delighted to have someone with the complainant’s experience apply for the job and certainly would not be arguing with her over 15 minutes here and there for the purposes of making her life easier. The respondent also stated that it had no problem with her request for force majeure leave for the days her son was sick and stated that Ms. L had been mistaken in advising the complainant that she needed to use her annual leave to cover such days. Ms L was at the hearing and agreed that this was her mistake and that she had since taken force majeure leave herself when her own child was sick. The respondent stated that it had been delighted to have someone of the complainant’s experience apply for the job and was optimistic that the complainant would do well in the role as she had previous experience in the LEADER role. The respondent advised the hearing that performance issues soon arose and that these were raised with the complainant at a probationary performance review meeting in July 2017. The respondent provided a record of the review meeting of 10th of July 2017. The respondent in its evidence cited the following as issues/concerns which were raised with the complainant Impulsive behaviour, inability to listen and follow agreed actions- there were a number of incidents in this regard, but the respondent advised the hearing that the most notable was in respect of a pop-up event. Following a team meeting where a staff member had discussed the possibility that she might be able to get her hands on the Sam Maguire cup for the pop up event but the team agreed that this should not be disclosed until confirmation was received, the complainant immediately after the meeting was overheard on the phone announcing it to the community representatives and stating that it was available, she also made contact with a colleague of the CEO s to check his availability for a photo call in this regard despite the agreement at the meeting that no action be taken until the availability of the Sam Maguire cup could be confirmed. The respondent stated that this was impulsive and did not reflect the decision taken at the meeting and left the company exposed which was not appreciated. The complainant in response to this stated that she was only taking initial steps to ascertain interest and availability for the proposed event. Journey planning and associated mileage claims were not in keeping with Company Policy- during the period the complainant had submitted several overstated journey distances resulting in incorrect mileage claims. The respondent advised the hearing that they had concerns about the complainants pattern of planning meetings as she had a tendency to schedule meetings in a way which was not cost effective for the respondent e.g. she would schedule a meeting on the south east of the county on Friday morning and in the North west on Friday afternoon incurring high mileage costs due to the non-efficient scheduling of meetings and also resulting in long periods of absence from the office travelling to and from these locations. In addition, it was the respondent’s policy that all first meetings be held in house, but the complainant did not adhere to this and often travelled out to first time meetings. It was agreed at the July meeting that the complainants travel for the next two months would be pre-approved or at least discussed in advance with Ms. J. Communication within the team – It was agreed that the complainant would engage is straight and honest communication with her manager to ensure that direction was clear, and decisions understood. It was agreed that the complainant needed to show initiative and commitment to the position and the company. Role within the team- The complainant was advised that she needs to show her commitment and capacity to the role and to step-up to the position. In this regard the respondent referred to the fact that the complainant at a recent pop event up had delegated the LEADER Presentation to another staff member, but the respondent stated that the complainant herself needed to take the leadership role. The respondent told the hearing that it had at that stage outlined its expectations going forward in respect of the animation plan and had discussed areas where LEADER needed to be present and visible. The respondent highlighted to the complainant that animation and proposals to date were not to the required standard. The respondent highlighted that there is an information gap at team meetings regarding EOI grading and budget implications. The complainant was requested to improve the quality of information provided and take out irrelevant information. The complainant was advised that she should be calling LEADER team meetings and providing quality information for collective decision making. The complainant was also instructed that that she should be ensuring processes and procedures are in order having regard to the funding contract. The complainant agreed to review and revert with an animation package. The complainant was to follow up with meetings in terms of minutes and follow up on verbal agreements made. The respondent went on to state that the complainant was aware of the issues with her performance which were highlighted during the July performance review meeting and that they had agreed certain actions going forward at the July probationary review meeting and that it was hopeful that they could move forward. The respondent stated that performance issues continued to arise, and that the most serious concern it had was with the complainant’s tendency to blame others for her own mistakes. The complainant advised the hearing that she did not consider the July meeting as a formal review meeting as she had thought of it as a “pull up your socks conversation”. The complainant conceded that there were issues raised in the July meeting in respect of her performance, but she disagreed that the issues were raised to the extent outlined in the note of the meeting provided by the respondent. The complainant stated that she was unaware that her probation had been extended following this meeting and that she had received no formal notification of same. I note that the complainant also did not receive any formal notification to indicate she had passed her probation. The complainant stated that she had asked the respondent for a statement of her earnings in October 2017 to give to the bank in support of a mortgage application. The complainant stated that the respondent provided her with this statement and did not at the time indicate that she had not passed her probation or that her probation had been extended. The complainant submitted that she considered tahtthis statement of earnings was an indication/confirmation that she had passed her probation. The respondent in citing its concerns and issues about the complainant’s performance stated that the complainant had at one point in a bid to blame someone else for her own error made an allegation accusing one of the respondent’s clients of fraud. The respondent stated that they had gone so far as to convene a meeting with M. M and the client to confront them on this allegation but that the complainant had panicked last minute and had texted Mr. M to tell him not to proceed. The respondent submits that several performance issues were raised with the complainant at her review meeting in July 2017. The respondent advised the hearing that the complainants performance in a number of areas continued to fall well short of the respondent standards and requirements and cited the following examples - Her workplace behaviour and communication, - Her failure to attend important meetings at which her presence was needed, - Her tendency to delegate functions that were her responsibility especially functions which should have been carried out by a manager at her level, - Her tendency not to take direction form her manager, - Her inability to follow and progress agreed actions, - Her tendency to undertake work outside of her area of responsibility which had the effect of undermining her colleagues and the duplication of work, - Her failure to address compliance issues or adhere to compliance standards - Her failure to bring projects forward for funding and meet targets, - Her approval of monies for ineligible projects, - Her failure to obtain proper quotations for projects, - The overall poor quality of her work documentation preparation and understanding of the roles requirements. The respondent when questioned at the hearing went on to state that the complainant had a tendency to blame other for her own mistakes and cited an incident where she had incorrectly included VAT leading to an incorrect quote which later had to be corrected. She never identified that this mistake was down to her and in fact insisted that it was a colleague who had got it wrong. The respondent stated that the complainant had attended numerous offsite meetings which had not resulted in projects being brought forward for funding. The respondent stated that the complainant displayed a lack of knowledge of any of the projects which she had proposed for funding. The respondent stated that it receives funding of up to €5 million from the DSP and EU to fund projects within the county. Mr. M stated that he had called a meeting with the complainant on 8th of January and had asked her for details of projects which were likely to go forward for funding. Mr. M stated that after going through about 5 of the projects it became apparent that the complainant couldn’t tell him who they were being run by or in what part of the county they were arising. He stated that he asked the complainant to go back and research the information and to provide him with a document containing the relevant information. Mr. M stated that he never received any such document. Mr. M stated that the complainant Ms. J had held 62 meetings with promoters since commencing employment the previous April and that 56 of these had resulted in no project approach. He added that 6 projects had emerged but only one of these was brought forward by the complainant Ms. J and that all other projects came from other staff members. Mr. M stated that following the complainant’s recommendations the respondent had provided inaccurate information to its funding providers and it had submitted 27 projects to progress to funding and out of these 24 of them never materialised. Only 1 of those which did materialise was down to the complainant and the other 3 were due to another staff member. The respondent advised the hearing that this raised concerns that the complainant had given information which was inaccurate. The respondent stated that the complainant had also made mistakes in the procurement process on 3 occasions and Mr. M stated that he had been contacted by a client on one occasion with concerns that they were being misled by the complainant. The respondent stated that a mistake had been identified in the procurement process for which the complainant was responsible and which if it had progressed could have caused the project to collapse. The respondent stated that the complainant had produced misleading and inaccurate information to a client and when asked to amend this she refused to do so. The respondent also stated that the complainant tended to blame others for her mistakes The complainant in addressing some of the issues raised by the respondent stated that she had been told that there were a few issues with her performance but that she had seen this as an informal chat rather than as performance review meeting. The complainant also advised the hearing that she was not responsible for the progression of all the projects outlined by the respondent but that another colleague also had responsibility for progressing projects and not all of them were down to her. The complainant also stated that she was expecting that the meeting of 8th of January would result in a ‘rap on the knuckles’ but not that she would be in danger of losing her job. The complainant told the hearing that Mr. M at the meeting of the 8th of January referred to her commitment to the company. She submits that this was a reference to her Family Status as a parent and as the main carer to her son given that her husband was still living in a different county. The complainant told the hearing that this was something which Mr. M and Ms. N of the respondent both knew about when they offered her the job. The complainant stated that it came up at interview, at contract negotiation stage and within the first few weeks of the job. Both parties agree that the respondent was always aware of the complainant’s family status before and after her appointment to the role. Both parties agree that the complainant was given an extra €1000 to help pay for childcare costs when she alerted the respondent prior to her commencement in the role that her childcare costs would be increased. Both parties also agree that the complainant was permitted to take force majeure leave to cover days off when her son was sick despite being initially advised that she had to take annual leave for these days. Both parties agree that there were issues with the complainant’s performance though the complainant disputes the extent of these issues she does acknowledge that performance issues were raised with her in July 2017 and that she was aware that performance issues were again being raised at the meeting on 8th of January 2018 for which she expected to receive a ‘rap on the knuckles’. Having considered the totality of the evidence adduced here I am satisfied that the complainant was dismissed due to performance issues which had been raised with her and that her dismissal was not due to or related to her family status. Accordingly, I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against on grounds of family status in relation to her dismissal. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Accordingly, I am satisfied form the totality of the evidence adduced that the complainant was not discriminated against on grounds of family status in relation to her dismissal. |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00017696-002 | 28/02/2018 |
Background:
The complainant referred complaints against the above respondent to the Workplace Relations Commission on the 28th of February 2018. |
Summary of Complainant’s Case:
It is submitted that: the complainant was employed by the respondent as Leader Program Manager from 25th of April 2017 to 18th of January 2108, her probationary period expired after 6 months on 25th of October 2017 she was not informed of any extension to this probation, She was invited to a Probation review on 15th of December 2017 which was rescheduled at her request for 8th of January 2018, She did not receive a copy of the company handbook. |
Summary of Respondent’s Case:
It is submitted that: the complainant was employed by the respondent as Leader Program Manager from 25th of April 2017 to 19th of January 2017, The complainant was provided with a contract and a copy of the employee handbook which she signed on 25th of April 2017, The complainant was invited to a probationary review meeting on July 2017 where concerns with her performance were raised, a further performance review meeting was called for 15th of December 2017 but was postponed at the complainant’s request until 8th of January 2018. |
Findings and Conclusions:
Section 3 (1) of the Act 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 of the terms of the employee’s employment” The respondent advised the hearing that the complainant was issued with a contract of employment prior to the commencement of her employment. The respondent provided documentary evidence in support of this assertion which evidences that the contract was sent to the complainant by email on 27th of March 2018. This contract was signed by both parties on 25th of April 2017. The complainant did not dispute this at the hearing but stated that there was no reference to force majeure leave entitlements in her contract of employment. The complainant at the hearing stated that her contract contained no details of the sick leave policy or force majeure entitlements or the grievance or disciplinary procedure. The respondent advised the hearing that the details of these policies are outlined in the employee Handbook a copy of which is available on the shared drive to all employees. The respondent also presented a copy of the employee handbook to the hearing. The respondent advised the hearing that the complainant had signed an agreement stating that she had received and understood the terms of her employment as contained in the contract and the employee handbook. This document was submitted in evidence and is signed by the complainant and respondent and dated 25th of April 2017. The complainant did not dispute this. The complainant raised an issue in respect of not receiving the updated employee handbook. The respondent advised the hearing that the handbook n place during her employment ad which was available online to all employees was the eversion dated 2011. The respondent stated that the updating of the handbook had only been completed in February 2018. I am satisfied from the totality of the evidence adduced that the respondent employer has not breached Section 3 of this Act and accordingly this complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act
I am satisfied from the totality of the evidence adduced that the respondent employer has not breached Section 3 of this Act and accordingly this complaint is not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00017696-003 | 28/02/2018 |
Background:
The complainant referred complaints against the above respondent to the Workplace Relations Commission on the 28th of February 2018. |
Summary of Complainant’s Case:
It is submitted that: the complainant was employed by the respondent as Leader Program Manager from 25th of April 2017 to 18th of January 2018 when she was dismissed. |
Summary of Respondent’s Case:
It is submitted that: the complainant was employed by the respondent as Leader Program Manager from 25th of April 2017 to 18th of January 2018 the complainant was dismissed in January 2018 due to performance issues which were previously raised with the complainant in July 2017. |
Findings and Conclusions:
The complainant in her complainant form to the WRC had submitted complaints in respect of her dismissal under both the Employment Equality Acts and the Unfair Dismissal Acts. Section 101 of the Employment Equality act prohibits parallel claims in respect of a dismissal to be taken under the Employment Equality Act and the Unfair Dismissal Act. The complainant at the hearing elected to pursue the discriminatory dismissal claim and advised the hearing that she did not wish to pursue her complaint of Unfair Dismissal under the Unfair Dismissals Act. Accordingly, this complaint was withdrawn. |
Decision:
Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions
This complaint is withdrawn and accordingly is not well founded. |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00017696-004 | 28/02/2018 |
Background:
The complainant referred complaints against the above respondent to the Workplace Relations Commission on the 28th of February 2018. |
Summary of Complainant’s Case:
It is submitted that: the complainant was employed by the respondent as Leader Program Manager from 25th of April 2017 to 18th of January 2018 when she was dismissed, the respondent reduced her daily rate of pay to that of Project officer in her final pay slip and owed her outstanding wages of €930.03. |
Summary of Respondent’s Case:
It is submitted that: the complainant was employed by the respondent as Leader Program Manager from 25th of April 2017 to 18th of January 2018 the complainant was dismissed in January 2018 due to performance issues the complainant was not demoted to Project Officer. |
Findings and Conclusions:
Section 5(6) of the Payment of Wages Act states: 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 to 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, In a High Court case Dunnes Stores (Cornelscourt) v Lacey & O’Brien (2005) Finnegan P. stated that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant. The complainant submits that she was at the meeting of 8th of January 2018 offered a lesser position of Project Officer. The respondent denies this and states that the complainant asked whether she could be kept on for a few weeks in her current position until they found a replacement or whether they had any other positions available to which she could instead be appointed such as Project Officer. The respondent stated that it did not agree to any of these suggested solutions put forward by the complainant and that ultimately the decision was made to dismiss her. The complainant submits that she was underpaid in her final payslip and that this underpayment represents the lower position of Project Officer which she alleges the respondent offered her and she submits that despite her non-acceptance of this role the respondent then paid her according to this role for January 2018. The complainant in her complaint form to the WRC claimed that she was owed €930.03 by the respondent. The complainant submitted that she contacted the respondent highlighting that she had been underpaid and that the respondent then paid her an additional €535.09. The complainant submits s that this was still an underpayment of her wages due. The complainant submits that following her termination of employment on the 12th of January she was handed an envelope which contained her final payslip. The payslip detailed her salary for 15 days in addition to annual leave due of .75 days and the calculation was as follows: Total 15.75 days @ €137.10= €2,159.33 The complainant states that her daily rate was €196.15 (€51,000 / 52 / 5) not €137.10 and submits that the respondent decided to pay her outstanding wages at the lower salary rate of Program Officer following the meeting of 8th of January 2018. The complainant stated that she contacted the respondent stating that there was an error on her daily rate and that she should have been paid @ €196.15 per day. The respondent then replied to her stating that they had made an error in the calculation of her daily rate and stating that her daily rate for the period was in fact €184.78 calculated as follows: Monthly salary €4250, Number of Working Days in January 23- Daily Amount €4250/23 = €184.78 Total 15.75 days @ €184.78 = €2,910.33 The complainant stated that the respondent then paid her a supplementary payment of €535.09 based on its new calculation of €184.78 daily rate. The complainant stated that she replied stating that this daily rate was still incorrect and that having worked in HR for 10 years she was aware that this is not the correct method for calculating daily rates. This matter was discussed in detail at the hearing and the complainant stated that she was still owed money and that the alleged error as outlined by the respondent did not account for the full amount owed to the complainant. The respondent at the hearing outlined the calculations it had used to arrive at its calculation of the amount owed to the complainant. It emerged at the hearing that the method used by the respondent for calculating the amount owed was based on the number of days in the month in question and the number of days for which the complainant was owed and was based on a daily rate calculated using her monthly salary divided by number of working days in that month. The complainant argued that this was not the correct way to calculate her daily salary. It was also noted at the hearing that this method of calculation produces a different daily rate depending on the number of days in the month in question. The respondent agreed to revert post hearing with its calculation of what was owed to the complainant. The respondent post hearing by email dated 13th of November 2018 acknowledged that there is an alternative methodology proposed by IPASS, the Irish Payroll Association, that can be used to calculate daily rates, and stated that whilst this is not obligatory or a legal requirement and indeed is not the practice within the respondent organisation but when this methodology is used the salary owing to the complainant for January was €3,089.43 which is the same amount as the complainant submits she was due based on her calculation of a day rate of €196.15. The respondent has submitted that this gives a salary of €2,594.76 and that the amount owing to the complainant is now €127.57 using this method of calculation of daily rates. The respondent in its correspondence stated that in order not to disadvantage the complainant because of their calculation methodology, indicated that it was willing to make an additional salary payment of €127.57 to the complainant. It is clear from the totality of the evidence adduced that the Complainant’s January wages which were properly due to her were not paid to the complainant and that an amount of €2,159.33 gross based on a daily rate of €137.10 was paid to the complainant with an additional amount of €530 paid on 15th of January 2018 after the complainant had alerted the respondent to the fact that her final payslip had been calculated using an incorrect daily rate. The respondent at the hearing submitted initially that no monies were outstanding and that it had calculated the complainants daily rate using a method which gives rise to a different daily rate each month depending on the number of days in the month. The respondent at the hearing agreed to review this calculation and following the hearing the respondent recalculated the amount due to the complainant and stated that using the IPASSS method of calculating daily rates the complainant was due €127.57. I note the Decision of Ms Justice Finley Geoghan in her Decision of Sean Senan Histon v Shannon Foynes Port in which she held “It does not appear to me arguable that a failure to pay the Plaintiff any part of his salary is not a deduction from his salary within the meaning of Section 5 of the Act of 1991” The complainant in this case was underpaid and I am satisfied that an unlawful deduction was made from the complainant’s salary in January 2018 which she brought to the respondents attention a number of times. Accordingly in view of the evidence adduced and while acknowledging that the respondent has now indicated that it is willing to pay the complainant an additional amount of €127.57 based on the IPASS method of calculating daily rates I find this complaint to be well founded thus I find in favour of the complainant and direct the Respondent to pay the Complainant the outstanding wages of €127.57 plus compensation of €300.00. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find this complaint to be well founded and accordingly, I direct the Respondent to pay the Complainant outstanding wages of €127.57 plus compensation of €300.00. |
Dated: 3rd April 2019
Workplace Relations Commission Adjudication Officer: Orla Jones
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