Complainant

Respondent

Anonymised Parties

A General Sales Assistant

A Store

Representatives

Dobbyn & McCoy Solicitors

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00027550-001

05/04/2019

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

CA-00027550-002

05/04/2019

The Complainant said that he has worked as a General Sales Assistant with the Respondent since 16 March 2006.

The Complainant claims that since October 2018, his working hours have changed. He said that he previously held a role in the company as a manager. However in 2010 he stood down from that role and returned to the role of General Sales Assistant. He said that in order to offset his loss in wages at the time it was agreed with the store manager and HR that he would work early mornings. He said the reason being is that the early mornings were paid at a premium rate and therefore the reduction in wages was manageable.

The Complainant said that he worked from 6am until 1 pm or 5am until 12 noon, five mornings a week. He said that no one ever said that this was just a temporary measure. However, in 2018 there were changes to the store that required a new roster arrangement, and everyone was told of the need to be flexible. He said there were individual meetings and they were told that sales were down, and things needed to change.

He claims that he was given just 4 weeks’ notice that he would now have to be fully flexible and as a consequence would have to work five days over seven, Sundays to Saturdays inclusive and he would have to be available for 3 out of every 4 Sundays.

The Complainant said that he now works less early mornings and he is down financially in his wages by €70 every week because of this change to his terms of employment.

The Complainant said that this was a unilateral change to his contract of employment, and he did not receive the notice of change in writing and does not agree with this unilateral change. The Complainant also said that he feels that he is being singled out and is being treated differently to his colleagues.

The Respondent said that the Complainant commenced employment with it on 16 March 2006 on a fully flexible, five days over seven days, thirty to thirty-five hours per week, day contract as a general assistant.

It said that he moved to the role of line manager but subsequently requested to return to the role of general assistant in 2010 and signed a new contract accordingly. The contract states that starting and finishing times may vary, and any hours worked between the hours of 11pm and 8am attract a premium of time and half. The Respondent provided record of the agreement it held with the Trade Union in relation to staff flexibilities.

The Respondent said that in 2018 the business on the site where the Complainant worked was encountering issues regarding turnover and profitability. On review of its roster it noticed that there was an anomaly whereby many staff were working early in the day and at times when the store was not busy, and this had an impact on the staffing arrangements the rest of the day when there was a greater number of customers. It sought to adapt its staff rosters to meet its needs.

It said that one to one meetings were held with all staff on fully flexible contracts such as the Complainant, outlining that there would need to be some changes. On 28 August 2018 and 1 September 2018, the Complainant was informed that his roster hours would be changing with effect from 1 October in line with business needs.

The Complainant raised three grievances about the roster changes, each of which were examined and investigated. He subsequently appealed those decisions. The main aspect of the grievances was the financial impact that this would have on him as he would have always come in early and availed of the premium pay for the early hours. The Respondent said that he was not entitled to premium hours and therefore he did not have a claim.

The Respondent said that there was no underpayment or non-payment of wages as is provided for in the Payment of Wages Act, 1991. He was paid the amount due for the hours worked and nothing less. He was paid the wages that were “properly payable” to the employee on “that occasion” as set out under Section 5(6) in the Act. There was no deduction and they rely on the decision in Dunnes Stores (Cornels court) V. Lacey and Nuala O’Brien [2005] IEHC 417 on the central issue of what is the renumeration that is “properly payable”. It also relies on the case of Tesco Ireland Limited and David Coleman (PWD194), that states that one does not get paid a night shift premium while working days.

The Respondent said that there was no business sense for the Complainant to be working the hours that he was, it simply was not meeting its business needs and therefore as an employee that has a fully flexible clause in his contract, his roster was aligned to meet the needs of the Respondent and its customers needs. This is fully in line with his contract and the agreement reached between he Respondent and the Trade Union.

The Respondent said that it accepted that he had enjoyed the premium for working unsocial hours but he was not entitled to these hours unless business dictated that. It Said that there was no breach of the payment of Wages act accordingly.

In relation to the terms of employment (information) Act 1994, it noted that the Complainant sought to step down from the position of line manager in 2010 and took up to the position of general assistant. He signed a new contract of employment setting out the terms and conditions. There were no changes to this contract at any stage following that point.

The Respondent pointed to the fact that it takes its role very seriously, but it tries to work with all its staff, and it pointed to the fact that the Complainant and his wife, who is also employed there, are accommodated so that they are never rostered at the same for their family life.

It claims that there was no breach of the terms of employment (information) Act 1994 as there was no change to his contract of employment.

CA-00027550-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Law

Definitions

““Wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

- “contract of employment” means—

(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer

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)

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.”

The essence of this case centres around where the Complainant claims that the amount properly payable to him at the material time is to be assessed by reference to him usually doing early premium hours, which changed to more regular hours and that he is down money accordingly. I note the issue regarding what is the amount properly payable was raised in cases cited by the Respondent in Dunnes Stores (Cornels court) V. Lacey and Nuala O’Brien [2005] IEHC 417 and Tesco Ireland Limited and David Coleman (PWD194).

The Respondent said that there was no underpayment or non-payment of wages situation as is under the definitions set out in the Payment of Wages Act, 1991. The Complainant was paid the amount due for the hours worked and nothing less. He was paid the wages “properly payable” to the employee on “that occasion” as set out under Section 5(6) in the Act. There was no deduction.

Having considered the facts of this case, the relevant legislation and the principles set out in the above mentioned case law, I am satisfied that there were no underpayments or non-payment of wages here. Accordingly, I find in favour of the Respondent.

CA-00027550-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Law

Section 7 of the Terms of Employment (Information) Act, 1994 provides for employers to seek redress on contravention of sections 3, 4, 5 or 6 of the Terms of Employment (Information) Act, 1994, I note that the applicable sections read as follows,

“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, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee’ s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

…

5.— (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

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute, other than a registered employment agreement or employment regulation order, or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.”

…

The purpose of the legislation and the various provisions under the Terms of Employment (Information) Act, 1994, which sets out the basic terms of employment which the employer must provide to its employees in written form within 2 months of starting the employment and it obliges the employer to notify the employee of changes to a term or condition within 1 month.

I note that the Complainant was issued with the terms and conditions of employment under the Terms of Employment (Information) Act which is signed by both parties on 11 November 2010. This is not disputed. I have not been presented with any other contract after that date.

Having reviewed the terms and conditions of employment it is clear that the role is for General Sales Assistant for 5 days over 7 days on 30 to 35 hours per week. I am satisfied that this is the basis for the Complainant working relationship with the Respondent and nothing has changed that requires a ‘new’ terms and conditions of employment contract under the Terms of Employment (Information) Act.

Accordingly, I find that the Complainant has been provided with the minimum level of information as required under the 1994 Act, and that there were no changes to those terms and conditions that would require a new terms and conditions of employment contract. Accordingly, I find in favour of the Respondent in this case.

CA-00027550-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

In accordance with Section 6 of the Payment of Wages Act, 1991 I find that the complaint is not well founded and therefore falls.

CA-00027550-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

In accordance with Section 7 of the Terms of Employment (Information) Act, 1994 I find that the complaint is not well founded and therefore falls.

Payment of Wages Act - Terms of Employment (Information) Act – no breaches – case falls