Complainant

Respondent

Anonymised Parties

A General Operator

A Producer of frozen food.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023225-001

15/11/2018

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

CA-00023225-002

15/11/2018

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

CA-00023225-003

15/11/2018

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

CA-00023225-004

15/11/2018

The claims were submitted to the WRC on 15 November 2018. The relevant six -month period dates from the 16 May 2018 to 15 November 2018. I proceeded to a hearing of this matter on the 4th of March 2019.

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

CA-00023225-001

15/11/2018

The worker submits that

He was employed by the employer as a senior operative earning €620 pw gross approximately from February 2001 until 2018 working nights,

He sought a transfer to the day shift in June 2018 and was told there was no senior operator position on that shift,

He was offered a general operative position which he transferred to in August 2018 because he could not continue on the night shift,

He was aware that his shift allowance which is 22.5% bonus on hourly pay for working nights would reduce to 17.5% for days but he was not informed that his hourly rate of pay would reduce until he received his first payslip,

His weekly income dropped from €620 per week to €450 per week approximately,

He also covers for other operators who have been unavailable due to illness or annual leave.  He complained to HR and his production manager, but his complaints were dismissed,

The said weekly loss is ongoing.

The employer submits that

The worker has not utilised or exhausted the internal grievance procedure prior to him having submitted his claim under this piece of legislation to the WRC,

Therefore, having failed to do so, it is inappropriate for the adjudicator to deal with the claim at this hearing,

The worker, due to personal reasons, made representations to the company to the effect that he no longer wished to work nights. The company informed the worker that there was a general operative role open on the 2-cycle shift if he wished to apply for the role,

The worker did so and was interviewed along with three other applicants. The worker was informed that the rate of pay was that of a general operative during the application process and upon confirmation of him being successful in his application,

The worker accepted the general operative role and the rate of pay and has been carrying out the role since 13 August 2018 but has in the intervening period been acting up as intermediate officer to cover for another employee.   The worker received the rate of pay commensurate with an intermediate officer for the acting up period,

The worker has not raised a grievance regarding any issue he has with his rate of pay or any other workplace issue despite being advised of the process to do so.

The worker was employed as a senior operative earning €620 pw gross approximately from February 2001 until 2018 working nights.

He sought a transfer to the day shift in June 2018 for personal reasons and was told there was no senior operator position on that shift. He was offered a general operative position which he transferred to in August 2018.     He submits that he was aware that his shift allowance which is 22.5% bonus on hourly pay for working nights would reduce to 17.5% for days but he was not informed that his hourly rate of pay would reduce until he received his first payslip.

The employer states that the worker applied for, interviewed for and accepted a general operative role and the rate of pay and has been carrying out the role since 13 August 2018 but has in the intervening period been acting up as intermediate officer to cover for another employee.   The worker received the rate of pay commensurate with an intermediate officer for the acting up period.

The employer submits that the worker has not raised a grievance regarding any issue he has with his rate of pay or any other workplace issue despite being advised of the process to do so.   The worker has been working with the company for over 20 years and is fully aware of the fact that a general operative gets paid a general operative rate of pay.

The worker is seeking a recommendation that he be placed on a higher rate of pay which reflects his length of service with the company and that he be compensated for the loss of earnings he has incurred since moving from nights to days.

The employer submits that a meeting was held with the complainant following the employer receiving the notification of the claim to the WRC. The employer stated that the complainant was advised at this meeting that he could have raised the matters the subject of his complaint through the employer’s grievance procedure and that this option was still open to him to raise any issues or concerns.   The complainant advised the hearing that he had no faith in the grievance procedure.

The employer submits that the worker has not utilised or exhausted the internal grievance procedure prior to him having submitted his claim under this piece of legislation to the WRC, and therefore, having failed to do so, it is inappropriate for the adjudicator to deal with the claim at this hearing.

In considering these arguments I am mindful of the Labour Court finding in

Geoghegan T/A Taps v a Worker INT 1014 where the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

I am also satisfied that it is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. This has clearly not happened in the circumstances of the present dispute.

Having considered the submissions of both parties and the evidence adduced at the adjudication hearing, I do not recommend in favour of the Worker.

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

CA-00023225-002

15/11/2018

The complainant submits that

He was employed as a senior operative earning €620 pw gross approximately from February 2001 until 2018 working nights,

He sought a transfer to the day shift in June 2018 and was told there was no senior operator position on that shift,

He was offered a general operative position which he interviewed for and accepted and transferred to in August 2018,

He was aware that his shift allowance which is 22.5% bonus on hourly pay for working nights would reduce to 17.5% for days but he was not informed that his hourly rate of pay would reduce until he received his first payslip,

His weekly income dropped from €620 per week to €450 per week approximately,

He also covers for other operators who have been unavailable due to illness or annual leave.   He complained to HR and his production manager, but his complaints were dismissed.

The said weekly loss is ongoing.

The respondent submits that

The claimant commenced employment with the company in May 1994. The claimant is currently employed as a general operative working on a 2 cycle shift rotating days and evenings. His rate of Pay is €9.8359(6)/hour with a 17.5% shift premium.

The claimant was previously employed as a level three, senior operative on the night shift. In July/August 2018, the claimant, due to personal matters, applied for, was interviewed for and accepted a position of general operative on the 2-cycle shift.

The claimant commenced the role of general operative on the 2-cycle shift on 13 August 2018 and has continued to work on this shift to date. The claimant, since commencing the general operative role has been covering the role of an intermediate operative due to the absence of a fellow employee. The claimant has been paid the intermediate operative rate for that period.

the claimant voluntarily applied for and accepted the position of general operative, along with the general operative terms which include the lower rate of pay, effective from 13 August 2018.

The claimant advised the hearing that he was employed as a senior operative earning €620 pw gross approximately from February 2001 until 2018 working nights. He sought a transfer to the day shift in June 2018 for personal reasons and was told there was no senior operator position on that shift. He was offered a general operative position which he transferred to in August 2018.   The complainant advised the hearing that he was aware that his shift allowance which is 22.5% bonus on hourly pay for working nights would reduce to 17.5% for days but he was not informed that his hourly rate of pay would reduce until he received his first payslip.

The respondent states that the claimant applied for, interviewed for and accepted a general operative role and the rate of pay and has been carrying out the role since 13 August 2018 but has in the intervening period been acting up as intermediate officer to cover for another employee.   The claimant received the rate of pay commensurate with an intermediate officer for the acting up period.  

The respondent advised the hearing that the claimant was at all times ‘paid’ properly’ as per his contract of employment.  The claimant in his own claim form has stated that; ‘I was told that there was no senior operator position on that shift. I was offered a general operative position which I transferred to in August 2018…’ This confirms that he knew he would not be working as a senior operative on the 2-cycle shift (days / evenings) but would be working as a general operative.

It is the company’s strong position that the claimant voluntarily applied for and accepted the position of general operative, along with the general operative terms which include the lower rate of pay, effective from 13 August 2018. The claimant did work up in the role of intermediate operator for a period of and was paid accordingly.  The claimant at the hearing and in his submissions to the WRC did not deny that he applied for and accepted the role of general operator after requesting to be moved from night work. The complainant submits that he should however be placed on a higher rate of pay due to his length of service with the company.

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,

Then, except insofar 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.

In a High Court case Dunnes Stores (Cornelscourt) v Lacey & O’Brien (2005) Finnegan P. stated that in determining clams under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant.

The complainant in the present case is claiming that the difference in wages which he was paid after he sought and was granted a move from his position as senior operative to the position of general operative amounts to an unlawful deduction for the purpose of Section 5 (6).

The complainant in his submissions and at the hearing of the claim advised the hearing that he had sought a move from night to day work and that he was advised that there was no senior operative position on the day shift but that he could apply for the position of general operative. The complainant was interviewed for and was successful for the post of general operative and was paid in accordance with the pay rate for general operative. The complainant disputes that he should be in receipt of the general operative rate of pay and argues that he should receive a higher rate of pay given his length of service.

Irrespective of the complainants argument that he should receive a higher rate of pay I am satisfied from the evidence adduced that he is in receipt of the rate of pay commensurate with the position of general operative and I am also satisfied that the complainant sought applied for and was granted the move to the general operative position. Accordingly, I am satisfied that the reduction in wages commensurate with his new position does not amount to an unlawful deduction under Section 5.

Having carefully considered all of the arguments I am satisfied that the payment claimed is not remuneration that is properly payable to the complainant and accordingly I find that this claim is not well founded.

I find that this claim is not well founded.

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

CA-00023225-003

15/11/2018

This claim is a duplicate of the claim under CA-00023225-002

This claim is a duplicate of the claim under CA-00023225-002

This claim is a duplicate of the claim under CA-00023225-002 above and accordingly is not upheld.

This claim is a duplicate of the claim under CA-00023225-002 above and accordingly is not upheld.

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

CA-00023225-004

15/11/2018

The complainant submits that

He was not notified of a change in his rate of pay when he transferred from and Senior Operator working nights to a General Operator position working days on or about the 13th of August 2018.

The respondent submits that

The complainant was employed as a senior operative earning €620 pw gross approximately from February 2001 until 2018 working nights.   He sought a transfer to the day shift in June 2018 for personal reasons and was told there was no senior operator position on that shift. He was offered a general operative position which he applied for and accepted and transferred to that position in August 2018,

the complainant commenced that role on 13 August 2018. The claimant was issued with a payslip on 22 August 2018 which reflected his General Operative rate of pay of €9.8358/hr.  This is within the 1 month’s period of the ‘change having taken effect’ as set out in Section 5 of the Act.

The claimant has been notified of his change in rate of pay in writing. It is the company position that the claim must fail as it is without basis. The claimant was subsequently provided with further correspondence on 4 December 2018 confirming the rate of pay and role.

Complaint under the Terms of Employment (Information) Act.

The complainant submitted a complaint under the Terms of Employment (Information) Act. The complainant submitted that he was not notified in writing of a change to his terms of employment.   The complainant advised the hearing that he was employed as a senior operative earning €620 pw gross approximately from February 2001 until 2018 working nights.   He stated that he had sought a transfer to the day shift in June 2018 for personal reasons and was told there was no senior operator position on that shift. He was offered a general operative position which he applied for and accepted and transferred to that position in August 2018.   The complainant advised the hearing that he was aware that his shift allowance which is 22.5% bonus on hourly pay for working nights would reduce to 17.5% for days but he was not informed that his hourly rate of pay would reduce until he received his first payslip.

The complainant advised the hearing that he had transferred from the position of Senior Operator working nights to that of a General Operator position working days on or about the 13th of August 2018 and that he was not notified of the change in his rate of pay following the change in position.

The respondent advised the hearing that the complainant transferred to the new role on 13 August 2018.  The respondent stated that the claimant was issued with a payslip on 22 August 2018 which reflected his General Operative rate of pay of €9.8358/hr.   This is within the 1 month’s period of the ‘change having taken effect’ as set out in Section 5 of the Act.

The respondent told the hearing that the claimant has thus been notified of his change to his rate of pay in writing. The claimant was subsequently provided with further correspondence on 4 December 2018 confirming the rate of pay and role.

Section 3 of the Terms of Employment (Information) Act, 1994 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 particulars of the terms of the employee’s employment, ……

Section 5 of the Terms of Employment (Information) act, 1994 obliges the employer to notify the employee of changes to a term or condition within 1 month and states :

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4 or 6 , 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, or  

Based on the totality of the evidence adduced I am satisfied that that the complainant has demonstrated that there was a breach of the Terms of Employment (Information) Act, 1994 and consequently I find that the complaint is well founded.  

I find that the respondent has breached the Terms of Employment (Information) Act and I order that the Respondent pay the Complainant compensation of €400.