Complainant

Respondent

Anonymised Parties

A Supervisor

A Cleaning Company

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-00019648-001

06/06/2018

The Complainant has worked for the Respondent a Contract Cleaning Company since March 2013. He currently works a 44-hour week as a Supervisor in return for a gross pay of €999.12, paid on a fortnightly basis. His claim arose from a change in his working role in March 2015. At that time, he agreed with his Area Manager that he would take on supervisory duties and receive a supervisory allowance. He has never received this payment. The Supervisory position was accepted against a backdrop of a “catch 22 “situation, where if he had not accepted it, he was informed that he would be threatened with redundancy.

The Complainants representative detailed that the complainant had made exhaustive efforts to secure the promise payment through three sequential Area Managers and was unsuccessful. A new Manager was appointed in March 2017.

On 28 March 2018, the complainant addressed the Respondent by means of written correspondence. In this letter he sought payment of a Supervisory allowance based on the undertakings given to him in 2015 by the Company.

The Complainant submitted a list of his duties which ranged from Administrative to Supervisory duties. The Complainant is currently in receipt of an hourly rate of €11.28 per hour which was the pre- Supervisory role rate of pay. The Complainant confirmed that he had been offered a derisory upward alignment to €11.60 per hour in May 2018 plus the JLC increase in December 2018.

The Complainants representative outlined that the complainant was very proud of his work but was underpaid in the augmented role from 2015. He contends that a payment of €100 per week would reflect an adequate supervisory allowance and sought alignment and full retrospection to March 2015.

The Complainant submitted an email dated February 2018 where he sought mediation under the Work Place Relations Commission to resolve the long-standing issue.

The Complainants representative disputed that the claim was time barred.

The Respondent accepted the chronological background of the complainant’s accession to the position of Supervisor but denied that he had suffered a deduction in his wages since 2015.

The Respondent raised a Preliminary Argument that the case was out of time as the date of origin given to the claim was March 2015. This brought the matter outside the parameters of the Act.

The Respondent outlined that the Complainant was the highest paid employee on site a while the Respondent accepted that the Complainant took on the supervisory role in 2015, there was no agreement on a wage increase, nor had the complainant furnished any evidence of agreement reached in this regard. The Respondent agreed that the Area Manager in post at the time of the complainant’s accession had been on long term sick leave until formally replaced in March 2017.

The Respondent argued that the claim constituted a pay claim rather than a pay deduction and was not properly before the Adjudication service. The Respondent had reviewed the complainants pay structure and had made a compromise offer of €11.60 per hour which stood rejected. The Respondent also highlighted that the JLC rate for Supervisor was €11.28 and another member of staff had pay reduced now to facilitate the transition in work.

On a point of clarification at the hearing, the Respondent detailed the company disputes resolution mechanisms available.

The Respondent relied on the jurisprudence in Sullivan V Dept. of Education [1998] ELR 217 as precedence in how the EAT addressed a properly payable allowance from the outset. The Respondent contended that there was no legal entitlement to a pay increase in the case and submitted that the non-payment of an increase to the complainant is not a deduction.

The Respondent sought that the claim be dismissed.

I have considered both party’s submissions in the case. I will first address the Preliminary issue as raised by the Respondent.

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 8 of the Complaint form dated 6 June 2018, the complainant submitted that he should have received payment in June 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 was given an undertaking on an upwardly aligned allowance, I must find that the complainant 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.

I must find that the claim 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 Act 1991 requires that I decide in relation to the complaint in accordance with the relevant provisions of Section 5 of that Act.

I have found that I lack the jurisdiction to deal with the complaint in the matter in which it is framed. The complaint is not well founded.

As an addendum, I would strongly advise the parties to re-open the earlier discussions under the newly appointed Area Manager through the agreed Disputes Resolution Mechanisms referred to at the hearing.

Wages that are properly payable