ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023531

Parties:

Complaint(s):

Date of Adjudication Hearing: 10/12/2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

This complaint refers to an allegation of the non-payment of wages where the Complainant submitted that she was not paid the hours of work in accordance with her contract of employment.

Summary of Complainant’s Case:

The Complainant, a Latvian National, submitted that she commenced work in September 2006, was issued with a new contract of employment in January 2018, and that she was not provided with the hours of work as laid out in her contract of employment.

The Complainant advised she was on minimum wage, where she worked Sundays with no Sunday premium, and was contracted to work for a 39hour week. She was paid fortnightly. She maintained that on average she was only rostered for 34 hours a week and was therefore not provided with her contracted hours. Consequently, she submitted that the Respondent was in breach of the Payment of Wages Act for making deductions from her wages based on her contracted working hours.

The Complainant contended that as the contract of employment referred to normal working hours of a 39-hour week, and that the hours may be increased, there was no right for the Respondent to reduce the hours, or pay the Complainant less hours than as laid out in her contract.

The Complainant also submitted that in February 2019 she was advised that her hours of work were to be cut and following a meeting with, and correspondence from the Respondent, her working hours were further reduced for two week period in April 2019.

The Complainant submitted that overall, she had been unlawfully deduced 76 hours of pay amounting to €744.80

Summary of Respondent’s Case:

The Respondent acknowledged that the Complainant commenced employment in September 2006 and was issued with new written contract in January 2018, which she signed at that time. The Respondent advised that the contract referred to a normal working week of 39 hours, and there may be additional hours required when authorised and as necessary.

The Respondent submitted that the Complainant also received an employee handbook as part of her contract of employment and signed a statement advising she had read, understood, and accepted that the employee handbook formed part of her contract of employment.

The conditions set out in the employee handbook included a statement regarding temporary shortage of work, and reduced hours. The Respondent advised that due a downturn in the business the Complainant along with other staff was advised by letters on 21st February 2019 and 26th February 2019, and a meeting that her hours would be reduced. On 6th March 2019 the Respondent again wrote to the Complainant that her hours would be reduced to 32 hours per week, and also that she may qualify for voluntary redundancy. The Complainant sought voluntary redundancy but due to her skillset, level of knowledge, and experience she was not made redundant. The Respondent subsequently reduced the Complainant’s hours of work to 32 hours per week from 1st to 14th April 2019. The Complainant went on sick leave between 16th April 2019 to 27th June 2019, and when she returned she was provided with her normal hours of work.

The Respondent maintained the Complainant’s normal hours of work were 32 to 35 hours per week as some years earlier the Complainant has sought to start work at 11am as she also had another job. The Respondent facilitated this request, and as the market closed in the evening it was not possible to provide more working hours. Evidence provided at the hearing verified this practice, and where in August 2019 the Complainant had sought to start work at 10am. The Complainant confirmed at the hearing that the arrangement to start two hours later had been in place for some years.

Findings and Conclusions:

Section 5 (1)(c) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—in the case of a deduction, the employee has given his prior consent in writing to it.

Having considered the evidence presented I am satisfied that a long-standing arrangement existed between the Complainant and the Respondent that facilitated the Complainant starting her work at 11am so she could hold employment elsewhere. This meant the Complainant worked less hours per week than the 39 hours week as outlined in her contract.

I also find that due to a downturn in the business the Respondent sought and consulted with employees regarding a shorter working week for two weeks in April 2019. The option of a shorter working week is contained in the employee handbook which forms part of the Complainant’s contract of Employment. The Complainant agreed to and confirmed to these conditions by signature on 2nd January 2018.

I therefore conclude the Respondent is not in breach of the payment of wages act and has not deducted from the wages of the Complainant without the consent of the Complainant. I am satisfied the Complainant was paid for the hours she worked and had agreed with the Respondent to start at 11am in the mornings. As such she chose to work less hours each week. It would be unreasonable for an employee to expect to be paid for hours she did not work.

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. Section 6 of the Payment of Wages Act 1991 requires that I make a decision under the relevant sections of that Act.

As I have found the Complainant sought and agreed to a later start time she was paid for the hours she worked. I therefore do not find that the Complaint is well founded.

Dated:   17.12.19

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words:

Payment of Wages, Shorter Working Week