Complainant

Respondent

Anonymised Parties

Employee

Local Authority

Representatives

Johnny Mills Rennick Solicitors

Waters & Associates Waters & Associates

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00022156-002

21/09/2018

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

CA-00022156-003

21/09/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994 wherein it is alleged that the Complainant did not receive a statement in writing of her terms of employment (CA-00022156-002).

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991, wherein it is alleged that the Respondent Company has not paid the Complainant or has paid the Complainant less than the amount due (CA-00022156-003).

The Complainant commenced employment with the Respondent on or about the 20th June 2005. The Complainant, in the course of her employment, was eventually promoted to Grade 4 member of staff. Ultimately, the Complainant was demoted from Grade 4 To Grade 3 on or about the 23rd March 2018 following an internal investigation.  

The Complainant submits that the claims herein arise, inter alia, from the purported demotion of the Complainant by the Respondent on the 23rd March 2018 and it is alleged that from that date the Respondent deducted from the Complainants wages the difference between her contractual rate (as a Grade 4) and a different rate payable to Grade 3 clerical officers, who worked fewer hours than the Complainant was required to work.

In or around October 2017, the Complainant carried out an assessment of a family member who was a tenant of the local authority. In February 2018 this assessment was queried by the Complainants superior and in March 2018 she was placed on administrative leave while an investigation took place. The Complainant attended meetings on the 13th March 2018, the 21st March 2018 and the 23rd March 2018. The Complainant was informed that a decision had been taken to terminate her employment however it was ultimately determined that arising from the Complainants undertaking never to engage in conduct of a similar nature and from the representations made on   behalf of the Complainant, by her union representative, a decision was made to reassign the complainant to the duties of a clerical officer, effectively regarded as a demotion.

It was submitted on behalf of the Complainant, that she has a contractual entitlement to have the provisions of the Disciplinary policy and procedure applied to her pursuant to her contract of employment and sanctions may only be imposed where the provisions are complied with.

In that regard, it is submitted on behalf of the Complainant that various provisions were breached as follows. The Complainant was not informed of all allegations against her including relating to the authenticity of supporting documentation. The Complainant was not given an opportunity to respond and in particular the finding as to the authenticity of the documentation was made before the Complainant was ever notified of it. The Complainant was not given a fair and impartial hearing. The decision to demote her was not proportionate to the error made by the Complainant which was made in the context of her not being properly trained or informed of what she was permitted to do and without consideration of her lengthy unblemished record. The Complainant was not notified that the disciplinary process had commenced and was not told she was attending a disciplinary meeting at all or in writing. The initial decision to terminate the Complainants employment was communicated to her in the course of the disciplinary meeting and then was ultimately altered to a demotion and this was verbally communicated before the conclusion of the meeting.

Accordingly, it is submitted that the decision to demote the Complainant and thereby reduce her wages was in breach of her contract of employment and is invalid and the wages properly payable to the Complainant are those payable as a Grade 4 member of staff. Further, the total amount of wages paid to the Complainant were less than the total amount properly payable to her, the deficiency or non-payment constitutes a deduction under the Payment of Wages Act, 1991. This purported deduction was not authorised by a term in the Complainants contract nor did the Complainant give her prior consent to deduction in writing or otherwise.

It is submitted that the Respondent had failed, despite numerous requests, to furnish the Complainant with a copy of what it maintains are the terms of her contract of employment. Ultimately, the Respondent did provide a contract of employment, dated the 26th March 2018 but signed by the Respondent, only, on the 26th November 2018.

The Complainant stated that she found the whole process of the disciplinary process and her ultimate demotion particularly traumatic and stressful.     

The Complaints herein were received by the Workplace Relations Commission on the 21st September 2018.

The Respondent Company accepts the timeline in relation to the Complainants employment.

It is submitted on behalf of the Respondent that the Complainant was the subject of a disciplinary process and was represented throughout that process by her trade union representative. At the aforementioned meeting of the 23rd March 2018 and on foot of the representations made on behalf of the Complainant the Respondent stopped short of dismissing the Complainant and instead agreed sanction of a final written warning and demotion from Grade 4 to Grade 3 as an alternative outcome. A letter issued following this meeting and confirmed her change in standing and this   would be effective from the 26th March 2018. It is submitted that the Complainant, at this juncture, expressed her appreciation of the stance adopted by the Respondent in the circumstances of this matter.

The Respondent sought to emphasise that they engage fully with recognised trade unions which represent its staff, of various levels, throughout the organisation and seeks to promote constructive engagement between the organisation and trade unions to promote good industrial relations and there are processes in place to resolve employee grievances.

It is submitted that the crux of the Complainants issue is that she asserts that since her agreed demotion she works greater hours to that which applied to her prior to her promotion and that she is paid less than her length of service would accord.

As a Grade 3 employee from the 26th March 2018 to 30th September 2018 the Complainant was on the top point of that scale. On the 1st October 2018 the top end of the scale for Local Government employees at grade 3 increased and that rate was applied.

Following her demotion, the Complainant continued on a working week of 37 hours and representations were made on her behalf that the Complainants hours should be reduced to 35.5 hours which applied to Grade 3 employees prior to her previous promotion and, it is noteworthy that, the Respondent accepts that position. Accordingly, based on the hours worked by the Complainant from the 1st May 2018, when said representations were made, the Respondent has calculated that the Complainant is owed 26 hours and 13 minutes which equates to four days in lieu.

The Respondent accepts that the Complainant did not receive her contract of employment dated the 23rd March 2018 within the appropriate time period and provided a copy of same which was signed and dated by the Respondent, only, on the 26th November 2018.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

Specifically, in relation to this matter, the Complainant had included in her initial complaint a matter pursuant to Section 13 of the Industrial Relations Act, 1969. This complaint was in relation to disciplinary sanctions which led to the Complainants demotion. The Respondent objected to the investigation of this particular complaint on the 24th October 2018. The Complainant was informed on the 26th October 2018 by the Workplace Relations Commission that the Respondent had objected to this matter being referred to an Adjudication Officer for investigation. Accordingly, this matter was treated as closed by the Workplace Relations Commission and the two remaining Complaints could proceed to investigation by the Adjudication Officer.

Accordingly, in the circumstances of this case, I cannot make any findings in relation to the validity of the Complainants demotion.

The Terms of Employment (Information )Act, 1994-2014, provides that an employer is obliged to provide an employee with a written statement of terms of employment within the first two months of the commencement of employment.

Specifically, Section 3 provides:

3.—(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 of the terms of the employee’s employment,

and Section 7(2) provides:

7 (2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) order the employer 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 in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977

In the circumstances of this case, I am satisfied that the Respondent Company did not provide the Complainant with a written statement of her terms and conditions of employment dated the 26th March 2018, pursuant to Section 3 of the Terms of Employment (Information)Act, 1994-2014, until November 2018. In that regard, I acknowledge the concession made by the Respondent Company in the course of their submissions.

Accordingly, pursuant to Section 7(2)(a) I declare that this Complaint (CA-00022156-002) is well founded and accordingly pursuant to Section 7(2)(d) order the Respondent Company to pay to the Complainant compensation of €750.00 which I consider just and equitable having regard to the all of the circumstances.

Section 5 of the Payment of Wages Act, 1991 provides:

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the

employee has been furnished with— (I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

or

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941 , amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee

(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.

It was submitted that, if it is accepted that the demotion was invalid then the Complainant is entitled to €55.65 (gross) per week from the 23rd March 2018. However, as I cannot make any findings in relation to the demotion , the alternative of four days in lieu would seem to be the appropriate remedy but ultimately I have to conclude that this particular complaint (CA-00022156-003) fails.

I find that the Complaint (CA-00022156-002) is well founded and order the Respondent Company to pay €750.00 to the Complainant.

I find that the Complaint (CA-00022156-003) is not well founded and therefore fails.

Payment of Wages Terms of Employment