FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DAVID COLEMAN (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer Decision No. ADJ-00009613.
BACKGROUND:
2. This is an appeal of an Adjudication Officer's Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 9 January 2019 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr David Colman in a complaint under the Payment of Wages Act 1991 (the Act) claiming that his employer Tesco (Ireland) Limited was in breach of Section 5(1) of the Act when unlawful deductions were made from his salary from 5thJune 2017. The Adjudication Officer found that the Complainant was in receipt of salary properly payable for his role at that date and accordingly did not uphold the complaint under the Act.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr David Colman will be referred to as “the Complainant” and Tesco (Ireland) Limited will be referred to as “the Respondent”.
Background
The Complainant commenced employment with the Respondent in February 2010. He was promoted to night crew Team Leader in November 2011 in its Rush Store. In 2014 a decision was made to close the night operation in the store. The Complainant applied for and was granted a buyout of his night crew contract. In January 2015 he moved to a Day Shift Contract and received a lump sum payment of €21,259.96 in compensation for the buyout of his night shift premium and a change to his terms and conditions of employment.
In August 2016 the Complainant took up a position as Team Leader in the Navan Store, working on nights. He was paid the night shift premium for this role which continued until 4thJune 2017, when he was no longer required to work on nights and commenced working on days. The Respondent made a decision to restructure and make changes to the operational profile of the night crew. As a result, the Complainant was given two weeks’ notice of this change. He was returned to day work and paid a day rate of pay with effect from 5thJune 2017.
The Complainant claimed that the Respondent was in breach of the Act as he was no longer paid the night premium. He submitted his claim under the Act to the Workplace Relations Commission on 17thJuly 2017.
Summary of the Complainant’s Case
Mr Willie Hamilton, Mandate on behalf of the Complainant submitted that as the Complainant was not paid the correct rate of pay from 5thJune 2017, that the Respondent had made an unlawful deduction from his wages when it ceased paying him the night shift premium from that date.He claimed that the Complainant was given a commitment that his transfer to the Navan Store as night crew Team Leader was on a four-week trial basis after which the transfer would be on a permanent basis. Mr Hamilton said that the Complainant was also informed by management that he would be placed on a fast track management programme with the chance of progressing to a Night Crew Manager role.
Mr Hamilton denied that the Complainant’s transfer was on a temporary basis and that his transfer was to accommodate personal circumstances. He submitted that as the Complainant was contracted to work nights in Navan, and was accordingly paid a night shift premium, he was entitled to the night shift premium when he was reverted to day working in June 2017. Therefore, he contended that the night shift premium was “properly payable” to the complainant as provided for in the Act.
Summary of the Respondent’s Position
Ms Ursula Sherlock, Ibec, on behalf of the Respondent, stated the Complainant’s position on the night shift crew in Navan was a temporary role to be reviewed in early 2017 and was provided to him in an effort to support his personal circumstances. This arrangement ceased on 5thJune 2017 when for operational reasons the Respondent decided to change the profile of the night shift. Night shift working was totally removed in February 2018. Ms Sherlock stated that when the temporary position expired, and the Complainant returned to his contractual day time hours, his rate of pay reverted to a day rate. She stated that since the Complainant had accepted a buy-out compensation payment for the loss of his night shift premium in 2014, he was contracted to work days and the arrangement to work night in the Navan store was a temporary arrangement only.
Following his removal from night working in June 2017, he was afforded the opportunity to work on nights again from 6thNovember 2017, also on a temporary basis. The Respondent stated that the entire night shift in the Navan Store was removed from 17thFebruary 2018 by which time the Complainant was advised that he would resume his obligations under his day shift contract and return to a day roster.
The Applicable Law
The Act at section 5 provides in relevant part as follows
- 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.
- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
“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,
- (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
Subsection (6)(a) of section 5 of the Act above provides, in effect, that where the total amount of salary properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction. Consequently, the Court must turn to a consideration of the amount that was properly payable to the Complainant in the six-month period covered by the claim, i.e. from 5thJune 2017 until 17thJuly 2017.
Amount Properly Payable
The Complainant is claiming that the amount properly payable to him at the material time is to be assessed by reference to his contractual obligations at the time, which he claims was a permanent night crew contract. He accepted that he did not receive a copy of such a contract, however, he maintained he was entitled to such.
In that regard, the Complainant had submitted a separate claim under the Terms of Employment (Information) Act 1994 – 2012 alleging that he was not notified in writing of a change in his terms of employment when he was moved from working day shift in its Rush Store to working night shift in its Navan Store. The Adjudication Officer found that the Respondent had failed to notify the Complainant of changes to his conditions of employment and accordingly awarded him the sum of €500 in compensation.
The question this Court must decide is whether the claimed monies were “properly payable” to the Complainant by the Respondent.
Witness Testimony
Ms Louise Kelly, Employee Retail Manager, gave evidence on behalf of the Respondent. She told the Court that a worker who is contracted to work on permanent night shifts is entitled to the night shift premium only when working nights. She said that there are no occasions when such a worker would be requested by the employer to work days on a casual/temporary basis. She said that only in a situation where night working ceased in a store would a situation arise where those on permanent night contracts could be transferred to day working and, in such circumstances, they would be paid the agreed buy out payment, as applied to the Complainant in 2014.
The Complainant gave evidence to the Court. He told the Court that he was asked if he would be interested in moving to the Navan store in August 2016 to work on nights as a Team Leader/Acting Manager. He said that the first four weeks were a trial period, during which time he was paid an unsocial hours’ allowance for working at night as applicable to those on day working contracts. This changed after the four weeks when he was then paid the night shift premium, applicable to those working on permanent night shift working. He denied that this was a temporary arrangement.
Conclusions of the Court
The Court must first decide whether the claimed unlawful deduction was in fact properly payable to the Complainant.
InDunnes Stores (Cornelscourt) v Lacey and Nuala O’Brien[2005] IEHC 417, unreported Finnegan P., the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the claimant.
It is not disputed that the Complainant was paid a night shift premium until 5thJune 2017, when he ceased working nights and reverted to day working. The Complainant submitted his claim under the Act on 17thJuly 2017. Consequently, the Court must turn to a consideration of the amount that was properly payable to the Complainant from 5thJune 2017, the date of contravention claimed by him, until 17thJuly 2017.
Having considered the submissions of both parties and the evidence given the Court is satisfied that after he was transferred to the Navan store, for the periods he worked nights he was paid the night shift premium. When he worked on days he no longer attracted the night shift premium, as the Respondent argued that no such payment was due. Based on the evidence given to the Court, regardless of whether he was on a permanent or a temporary night shift contract, the Court is satisfied that the payments which applied in this case were in line with the policy and the normal arrangements applicable in the company. Accordingly, the Court does not find that an unlawful deduction was made for the period in question when he was not paid a night shift premium while he was working days.
Determination
The Court concurs with the Adjudication Officer’s findings, upholds her Decision and rejects the Complainant’s appeal.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
30 January 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.