Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019665-001

07/06/2018

The Complainant has worked as a Cleaner since April 7, 2004. He joined the present Respondent employer through a transfer of undertakings in 2012.

Currently, he works a 32.5-hour week in return for a fortnightly pay of €703.95 gross. The Complainant is seeking arrears of an hourly rate of €11.28 back to November 6, 2015. Prior to May 2015 the complainant worked a 25-hour week. His hours were increased in May 2015 when he was assigned to take on an extra building. At that time, he retained the standard rate of €11.28 for these additional hours. He was paid 32.5 hrs @11.28 euro per hour.

The Complainant raised the matter with the then Area Manager and he received a letter which stated:

November 6, 2015

“I am writing to confirm the agreed changes to your rates of pay. You have been receiving €11.28 for all hours worked in Company A and it was supposed to be 25 hrs @€11.28 and remainder @€9.75 per hour. We have now agreed that you are going to be paid €10.51 per hour”

When he queried this, his representative submitted that this was “the only rate he would receive in the future “The Complainant submitted that it was never his intention to accept the lower averaged rate.

The Area Manager was on long term absence and the complainant subsequently raised the matter with Human Resources and a newly appointed Area Manager without success. He then referred his case to the WRC on June 7, 2018.

The Complainant identified a €25-euro deficit per week since November 2015 and he sought continuous arrears since November 6, 2015. He had not been provided with a contract of employment.

The Respondent made a Preliminary application to dismiss the complaint because it was Statute barred as being outside the statutory time limits allowed under Section 41(6) of the Workplace Relations Act, 2015.

In responding to the substantive issue, the Respondent representative introduced the Company as a Contract cleaning and facilities company. He outlined that the complainant had transferred to the Respondent from another cleaning company in 2012 and provided records of his payments at that time. He submitted that the complainant was paid €11.28 per hour in respect of 25 hours and € 9.50 per additional hours.

The Respondent submitted that an overpayment arose when the complainant was assigned different contracts and this coincide with a period of sick leave when he was paid in error.

The Respondent outlined that the complainant entered discussions on the overpayment and the hybrid rates of pay. This culminated in an agreement where the rate of pay for all work was set at a conflated rate of €10.51 per hour in November 2015.

The Respondent maintained that this rate favoured the complainant and it exceeded the JLC rate at the time. The Company had no knowledge of the complainant’s level of dissatisfaction until 2018 when he outlined the current claim.

The Respondent argued that the €11.28 rate per hour was not universally available to the complainant and the €9.50 rate was the rate applicable to the contracts post transfer. The Respondent submitted that the complainant had not suffered an unlawful deduction of wages and had not raised it at the time of the amalgamation of the hourly rates 2015. The Company understood that agreement had been reached on the conflation.

The Respondent confirmed that the complainant had worked three hours on site where he was formerly paid on the higher rate December to June 2018 if a cognisable period is applied to the complaint.

The Respondent submitted that an agreement existed to cover the amalgam in the rates of pay to a composite €10.51 and requested that the WRC decide accordingly.

I have carefully considered each parties presentation in this case. the case is lodged under the Payment of Wages Act 1991 and subject to statutory time limits.

This complaint was received by the WRC on the 7 June 2018.

Preliminary Issue: The Respondent has submitted that the claim before the WRC is out of time. The Complainant disagreed

Section 41(6) of the Workplace Relations Act 2015 provides the following:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Considering the commentary of Hogan J in HSE v Mc Dermott [2014] IEHC 331 I have considered how the complaint was framed in this case. In Mc Dermott, the complainant was permitted to succeed in his claim for a deduction in pay due to his complaint being lodged on 16 June 2011 with a reference period of January 2011- June 2011. The facts of that case are distinguished from the instant case.

On Page 9 of the Complaint form dated 7 June 2018, the complainant submitted that he should have received payment of continuous arrears from 6 November 2015. His written submission indicated that full retrospection was sought for this period. This places the complainant well outside the acceptable limits of 6 months of contravention or of 12 months by extension through reasonable cause. The complaint is not framed in a manner to enable my jurisdiction in the case. It is of note that Hogan J reflected that “every distinct and separate breach constituted a contravention.” However, there remains a statutory time limit.

While I have sympathy for the complainant’s position, I fully accept that he did not give a written permission for the revised wage. However, his seamless silence from November 2015 to late 2017 to 2018 was fatal to his case under the Act.

I must find that the complaint is outside the statutory time limits in the way the complaint was framed. I placed Mc Dermott before the parties at the hearing and invited commentary. The Respondent agreed. The Complainant sought to consider the matter but confirmed that “time had run out “. The matter was not assisted by the vacuum created by long term sick leave of the then Area Manager. It is of note that the record reflects that the complainant was a Trade Union member at the time of transfer to the Respondent.

I must find that the complaint is not well founded and outside the statutory time limit for such claims.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide 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 requires me to decide in relation to the complaint in accordance with the provisions of Section 5 of the Act.

I have deemed the claim not well founded and outside the statutory time limit for such claims.

As an addendum, I would urge the parties to return to the table and explore the issue through the company’s internal disputes resolution framework.