ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021847
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | An Employer |
Representatives |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00028564-001 | ||
CA-00028564-002 | ||
CA-00028564-003 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 andfollowing 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.
Background:
The Complainant commenced employment in 1978 with an employer (Ms A), who was providing service to a Government Department under contract. The Complainant was initially employed in a clerical role, but after some years became the Office Deputy Manager.
The Complainant initially worked 35 hours per week. In or around 2011, the Complainant requested a reduction in her hours to 25 per week for personal reasons, which included the care of an elderly parent. While the request to reduce working hours was granted, the Complainant’s salary remained at the 35 hour per week equivalent. While the Complainant’s parent passed away in February 2014, the arrangement in relation to hours per week/wages continued.
On the retirement of Ms A in 2018, the contract was put to public tender and the Respondent was the successful applicant. The transfer of the business from Ms A to the Respondent took place under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003, (S.I. No.131/2003), on 15 October 2018.
Commencing in September 2018, a series of conversations/discussions took place between the Respondent and the Complainant in relation to her hours of work/hourly rate of pay. The Respondent was seeking to have the Complainant increase her working week to 35 hours per week, however, in the event that she was not willing to do so and wished to continue working 25 hours per week, the Respondent was proposing an hourly rate of €18 per hour. The Complainant informed the Respondent that she did not wish to work 35 hours per week, instead wished to remain on her existing terms with regard to hours of work/hourly rate.
Further discussion took place between the parties in October/November/December 2018, but no agreement was reached in relation to the matter in dispute. On 6 March 2019, the Respondent issued all employees, including the Complainant, with new Contracts of Employment, which they were required to sign and return within 28 days. The Complainant did not sign or return her contract. As a result, the Respondent wrote to the Complainant advising that, with effect from 5 April 2019, her hourly rate of pay would be set at €13 per hour and her position will be that of Clerical Officer.
The Complainant’s Trade Union representative wrote to the Respondent on the matter, but the latter refused to engage with the Trade Union. Consequently, the Complainant submitted a complaint to the Workplace Relations Commissions on 21 May 2019 setting out the following specific complaints:
1. Complaint under the Payment of Wages Act, 1991, which was allocated Complaint Reference number CA-00028564-001.
2. Complaint under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003, (S.I. No.131/2003), which was allocated Complaint Reference number CA-00028564-002.
3. Complaint under the Terms of Employment (Information) Act, 1994, which was allocated Complaint Reference number CA-00028564-003.
An Oral Hearing took place on 8 November 2019 to consider the above complaints, as submitted by the Complainant. At the conclusion of the Hearing, the parties were afforded the opportunity to attempt to resolve the matter locally in advance of any decision issuing in relation to the complaints as submitted.
On 21 November 2019 the Complainant’s Trade Union representative wrote to the WRC advising that, on the basis that the matter had not been resolved at local level, the Complainant required a decision to issue in relation to her complaint as submitted. A supplementary submission was also presented for consideration. On 29 November 2019, the Respondent’s representative, having been provided with a copy of the Complainant’s supplementary submission, provided further submission and closing arguments in respect of the above matter. |
Summary of Complainant’s Case:
CA-00028564-001 – Payment of Wages claim: According to the Complainant’s submission, the Respondent commenced unlawful deductions from her wages, amounting to € 217.50 per week gross, from 12 April 2019. It was submitted that the Complainant had been in receipt of €542.50 gross per week, based on a 25 hour working week, since late 2010/early 2011.
It was submitted on behalf of the Complainant, that €542.50 (gross) was the weekly wage she had been accustomed to for over eight years. According to the Complainant, that being the case, it cannot be deemed an oversight or error or temporary arrangement. Consequently, it was submitted that the deduction of €217.5 (gross) from the Complainant’s weekly pay, commencing in April 2019, is therefore unlawful.
CA-00028564-002 – TUPE claim: According to the submissions made on behalf of the Complainant, the Respondent, as the Transferee in this transfer, acted in contravention of the TUPE Regulations by failing to inform the Complainant of any details of the transfer. According to the Complainant she was not notified of the date nor the reason for the transfer.
It was further submitted on behalf of the Complainant that, following the transfer, the Respondent brought about changes in the Complainant’s terms of conditions, which were less beneficial and were in contravention of the regulations.
In response to the Respondent’s claim that her complaint was outside the six-month time limit provided for under Section 10 (6) of Regulation 10, it was submitted, on behalf of the Complainant, that, the contravention in question was the imposed wage cut which occurred on 12 April 2019. Accordingly, the Complainant submits that her complaint, which was lodged with the WRC on 21 May 2019, is well within the regulatory timeframe.
CA-00028564-003 – Terms of Employment claim: It was submitted on behalf of the Complainant, that, prior to the transfer of the business to the Respondent, in October 2018, the Complainant enjoyed conditions of employment which were in place for a 40-year period. It was further submitted that while these were not documented, they were, nevertheless, conditions established by custom and practice.
According to the Complainant, as no justification has been put forward for the proposed changes, she is not agreeable to the drastic and life changing deduction imposed upon her.
The Complainant further submitted that it is unacceptable that she had been issued with a Statement of Terms and Conditions which reflects the imposed, diluted working conditions. Consequently, it was submitted that the Complainant is seeking a Statement of Terms of Employment which accurately reflects her working conditions as Deputy Manager.
Conclusion: In concluding submission, it was stated, on behalf of the Complainant, that she now feels victimised by her employer for raising her concerns. According to the Complainant, she’s been isolated by the Respondent, who ignores her in her capacity as Deputy Manager and undermines her as a colleague. Consequently, the Complainant submitted that she wants this to cease and is seeking her rights and entitlements, as a long serving and dedicated employee, to be fully recognised and respected. |
Summary of Respondent’s Case:
CA-00028564-001 – Payment of Wages claim: It was submitted, on behalf of the Respondent, that the Complainant’s wages were not cut and that she was merely being reinstated on her actual salary. The Respondent submitted that, prior to the agreement between the Complainant and Ms A, which reduced her hours of work to allow her care for her mother, her weekly wage was € 537.60 per week (gross). The Respondent submitted that based on a working week of 35 hours, that equated to €15 per hour.
According to the Respondent’s submission, during the time that the Complainant’s mother was unwell, Ms A, as a gesture of goodwill, continued to pay the Complainant her full salary despite reducing her hours to 25 hours per week. The Respondent submitted that this equated to an increase in the Complainant’s hourly rate from €15 to €21.50 per hour.
The Respondent further submitted that the Complainant’s hourly rate, under her original terms of employment is €15.00 per hour. In this regard, the Respondent submitted that they had sought clarification from Ms A’s accountants, who had acted on her behalf since 2014. Evidence submitted in this regard states that the Complainant was being paid €15 per hour for a 35 hour week. According to the Respondent, it is only owing to the Complainant’s refusal to comply with a reasonable management order to go back to 35 hours per week, that she believes, wrongly in the view of the Respondent, that her hourly rate is actually €21.50.
According to the Respondent, during the discussions which but took place between the parties in late 2018, the Complainant was offered a raise in her hourly rate on a number of occasions, all of which were rejected.
CA-00028564-002 – TUPE claim: It was submitted on behalf of the Respondent that the Complainant’s complaint, in this regard, is outside the six-month time limit to bring a claim, as set down in Section 10 (6) of the Regulations.
According to the Respondent, there has been no exceptional circumstances which have prevented the Complainant for bringing this complaint within the allowed six-month period.
CA-00028564-003 – Terms of Employment claim: According to submission made on behalf of the Respondent, the Complainant was provided with a new Statement of Terms and Conditions, which reflected her actual working conditions. It was further submitted that the new Statement simply reinstates the Complainant back into her original terms prior to the agreement made between her and her previous employer, Ms A.
The Respondent submitted that the agreement between the Complainant and Ms A, was done, by Ms A, as a gesture of goodwill and was never intended to be an ongoing change in conditions. According to the Respondent, the decrease in hours was put to Ms A by the Complainant to facilitate the caring of her ill mother, who passed away in 2014. Consequently, the Respondent submits that as the agreement was made around the Complainant’s caring for her mother, it would have been reasonable to assume that the Complainant would return to normal terms of employment after the passing of her mother.
Closing Arguments: According to the Respondent’s submission, following the death of the Complainant’s mother, Ms A made a reasonable management request to the Complainant to increase hours back to 35 per week. It was submitted that the Complainant refused this request on the basis that the work location was not busy and she felt that she did not need to be there. The Respondent submitted that, as Ms A was in her late 80s at this stage and that the economy was in the middle of a recession, it is not credible to claim that the office was not busy or that the Deputy Manager was not needed full-time at that stage, if not to simply assist and support Ms A. Accordingly, the Respondent submitted that the Complainant simply became accustomed, as anyone would, to her reduced hours while enjoying the same pay as if she was working the 35 hours per week.
The Respondent submitted that the Deputy Manager is required to be in attendance in the office when the Manager is unavailable or off-site. According to the Respondent, in the 25 hour a week scenario, the Complainant’s daily working hours commence when the public office opens. Consequently, it was submitted this means that any paperwork that needs to be completed at the end of the day has to be done when the office is open to the general public. According to Respondent, the Deputy Manager is required to be available for the 35 hours to support the staff and manage the office when the Respondent is not available or is off-site. It was further submitted that the Respondent has attempted, on multiple occasions, to resolve this matter, however, all of these attempts have been rejected by the Complainant.
In conclusion, the Respondent submitted that up until his multiple attempts to rectify the situation, the Complainant enjoyed an unauthorised pay rise of €6.50 per hour (being the difference between €15 and €21.50 per hour). According to the Respondent, the Complainant not only failed to comply with a reasonable request from her former manager (Ms A) to go back to her original terms of employment, she has also failed to comply with the Respondent’s reasonable request for her to revert to her original terms of employment. |
Findings and Conclusions:
Having carefully considered all the evidence adduced and the submissions made before, during and subsequent to the Oral Hearing, I am satisfied that the issue pertaining to the Complainant’s terms and conditions of employment, as they existed at the date of transfer of the business from the previous owner to the Respondent, is central to all three elements of the Complainant’s complaints. Consequently, I believe it is necessary to deal with the issue of the Transfer of Undertaking first, before proceeding to consider the two remaining complaints.
CA-00028564-002 – TUPE claim: The first issue to be considered in relation to the Complainant’s claim under the TUPE Regulations is the Respondent’s contention that the complaint as out of time. Regulation 10 sets out the position in relation to submission of complaints under the Regulations, as follows:
(6) “A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.”
The Respondent contends that the time period for submission of complaints commences at the date of transfer, which in this case was 15 October 2018 and that the Complainant’s submission of her complaint on 21 May 2019 is, therefore, outside the six-month time limit. The Complainant, on the other hand, submits that, as the contravention of her rights, which are protected by the regulations, occurred on 12 April 2019, that is the date from which the six-month period for submission of complaints should commence. On that basis, the Complainant is contending that her complaint is within time.
Having carefully reviewed all the submissions made and, in particular, the detail in the Complainant’s complaint in relation to the Transfer of Undertaking, I am satisfied that her complaint relates to the Respondent’s failure to maintain her Terms and Conditions of employment following the transfer. In this regard, I am satisfied that while the parties were in discussion in relation to these matters both prior to and post the transfer, the alleged failure to protect the Complainant’s terms and conditions only occurred when the Respondent reduced her wages on 12 April 2019. Therefore, I am satisfied that the Complainant’s complaint is in time and the Respondent’s contention to the country is not well founded. On that basis, I now proceed to consider the Complainant’s claims in relation to the Transfer of Undertaking.
Firstly, the Complainant contends that the Respondent, being the Transferee in this case, acted in contravention of the TUPE Regulations by failing to inform her of any details of the transfer, including the date of and reason for same. Having carefully reviewed the evidence, I am satisfied that discussions between the Respondent and the Complainant, in relation to the transfer of business, commenced on 7 September 2018, which was one month prior to the date of transfer on 15 October 2018.
Given the level of interaction between the parties, in this regard, as the matter progress to and beyond the transfer date, I find that the Complainant’s contention that she was unaware of the detail of the transfer is somewhat lacking in credibility and, as a result, I find that her claim, in this regard, is not well found.
The second element of the Complainant’s complaint regarding the Transfer of Undertaking relates to her contention that Terms and Conditions of employment which she enjoyed at the time of the transfer were not protected by the Respondent, as the Transferee. Following the transfer. This claim specifically relates to her hours of work, rate of pay and role within the business.
Section 4 (1) the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003, (S.I. No.131/2003) states as follows:
4. (1)“The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”
During her long employment with the Transferor (Ms A), the Complainant was never provided with a contract of employment. Simply because the terms and conditions of employment have not been committed to writing does not mean there are none in existence. The ongoing interaction between an employee and employer and all that it entails, in effect, constitutes a contract of employment between the parties. A written contract of employment is, in effect, a former record of a contract that actually exists between the parties.
In any event, I am satisfied that the issue between the parties, in the within case, is not the existence of the contract so much as to the detail and status of the terms and conditions that existed at the point of transfer of the business to the Respondent. The Complainant’s contention, in this regard, is that her terms and conditions consisted of, inter alia, a gross weekly wage of €542.50, based on a 25 hour working week, in the role of Deputy Manager. The Respondent, on the other hand ,is contending that the Complainant’s terms and conditions should be a 35 hour working week at a rate of €15 per hour.
The dispute between the parties arises as a result of an arrangement entered into between the Complainant and her previous employer, Ms A, in 2011, whereby the Complainant’s working hours were reduced to 25 per week, so that she could look after her mother, who was ill at the time. While the Complainant’s hours of work changed, her salary was not reduced accordingly. The evidence suggests that, after the Complainant’s mother died in February 2014, Ms A approached her with the view to reverting to her previous working week of 35 hours. The evidence further suggests that the Complainant was of the view, at that time, that there was no need for her to revert to 35 hours per week, as she considered she could adequately carry out her role as Deputy Manager on 25 hours per week.
The Respondent contends that Ms A was not particularly satisfied with an ongoing arrangement whereby the Complainant was working 25 hours per week and was in receipt of a salary commensurate with the previous situation in which she was working 35 hours per week. The Respondent also contends that the original arrangement entered into by the Complainant and Ms A, back in 2011, was to be a temporary arrangement which would revert to the original terms when the Complainant’s mother passed away.
Notwithstanding the Respondent’s views in this regard or indeed the arguments made in relation to the unreasonableness and/or peculiarity of the situation, the reality is that Ms A, irrespective of what her personal views may have been in relation to the arrangement allowed it to continue, uninterrupted for a period of seven years, three of which came after the point in time with the Respondent contends the arrangement should have ended.
Having given careful consideration to all of the evidence adduced in this regard, in the circumstances that prevailed, I can only conclude that the Complainant’s weekly wage of €542.50, based on a 25 hour working week in the role of Deputy Manager constituted her terms and conditions of employment at the time of the Transfer of Undertaking and, therefore, constitute rights and obligations that are to be protected by Regulation 4 of the TUPE Regulations.
Taking all of the above into consideration, I find any attempt by the Respondent to unilaterally change these terms and conditions to be in breach of the Regulations and that the Complainant’s claim in this regard is well-founded.
CA-00028564-001 – Payment of Wages claim: Section 5 (6) (a) of the payment of Wages Act, 1991 states as follows:
(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)…….
…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.”
Based on the finding detailed above in relation to the Complainant’s claim under the TUPE Regulations, I find that the wages properly payable to the Complainant are €542.50 (gross) per week. Therefore, I find, in line with Section 5 (6) (a) of the Act, as set out above, that the Respondent’s reduction of the Complainant’s weekly wage to €325.00 (gross) per week represents an unlawful deduction from the Complainant’s wages.
CA-00028564-003 – Terms of Employment claim: Having carefully considered all the evidence adduced and based on the findings, as set out under Complaint Reference number CA-00028564-002 above, I find that the Complainant’s complaint in relation to the working conditions, with specific reference to hours of work, weekly wage and job role/title, contained in the contract of employment provided to her by the Respondent on 6 March 2019, is well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out below, my findings in relation to the individual elements of the Complainant’s complaint, as follows:
CA-00028564-001 – Payment of Wages claim: I find that the Respondent’s reduction of the Complainant’s weekly wages, as from 12 April 2019, represents an unlawful deduction under the Payment of Wages Act 1991. Consequently, in line with Section 6 (2) (a) of the Act, I order the Respondent to reimburse the Complainant with an amount equivalent to, but not exceeding, the difference between €542.50 (gross) per week and €325.00 (gross) per week for each working week, including any periods of annual leave, between 12 April 2019 and the date of the restoration of the Complainant’s terms and conditions of employment, as set out under Complaint Reference number CA-00028564-002 below.
As the payment set out above represents restoration of wages, it is, therefore, subject to the normal statutory deductions applying to such payments.
CA-00028564-002 – TUPE claim: I find that the Complainant’s claim in this regard is well-founded and, therefore, in line with Regulation 10 (5) (b), I require the Respondent to comply with these Regulations and to restore, with immediate effect, the Complainant’s weekly wage to a sum not less than €542.50, based on a 25 hour working week, in the role of Deputy Manager.
In conclusion, in relation to this element of the Complainant’s complaint, I am satisfied that the Respondent’s compliance with the findings set out herein represent a just and equitable resolution of the matter.
CA-00028564-003 – Terms of Employment claim: I find that the Complainant’s claim is well-founded and, therefore, in line with Section 7 (2) (c) of the 1994 Act, I require the Respondent to provide the Complainant with a revised Contract of Employment showing terms and conditions consistent with those set out in the findings under complaint reference CA-00028564-002 above. |
Dated: December 17th 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Payment of Wages Act Transfer of Undertaking Regulations Terms of Employment (Information) Act |