PWD1920

The Complainant commenced work for the Respondent in November 2008.He was appointed a Night Line Manager in May 2011. In February 2016, in circumstances that are disputed, the Complainant transferred from the Navan store to a Drogheda store and he transferred from night work to day work. His salary was decreased from €44,880 to €34,081. In August 2016, the Complainant forwarded a complaint to the WRC that his pay had been reduced contrary to s. 5 of the Act.
The AO decided that the complaint was not well founded and the Complainant appealed to the Court.

Complainant’s arguments

The Complainant did not seek to move jobs and no explanation was given to him for the reduction in salary.
The Complainant has a contract from May 2011, which states his salary to be €44,100, (increased subsequently to €44,880 following a pay review). This contract makes to reference to a night premium payment element of the Complainant’s remuneration.
The Complainant did not sign the alleged contract of 14 January 2014 that was produced by the Respondent at the WRC. This alleged contract and minutes allegedly signed by the Complainant at meetings in February 2016, are false documents. These documents cannot be relied upon. The matter has been referred to the Gardai.
The Complainant is entitled to all wages due in accordance with his 2011 contract and subsequent upward pay review. He is entitled also to have a 2% bonus due in 2015, a wage increment of 2% in 2016 and a 1.5% Christmas bonus in 2016 and 2017 based on the contractual amount.

Respondent arguments

The Complainant requested a change from night shifts to day shifts for personal and health reasons at a meeting with his Store Manager on 2 February 2016 and he signed the minutes of that meeting. In a subsequent meeting in February 2016, the Complainant was advised of a daytime Line Manager vacancy in Drogheda, where he was living. He was advised that acceptance of this role may involve a lower salary. The Complainant acknowledged this and confirmed that he still wanted to move to day shift. Again, he signed the minutes of that meeting.

When he learned subsequently of the impact on his salary, the Complainant refused to sign a new daytime Line Manager contract.

Clause 2 of the contract signed by the Complainant in January 2014 set out clearly that his salary included a premium of one-third of salary for working nights and that in the event of a transfer to day work, this premium would cease to apply.

When the Complainant stated that he had never sought to move to day work, he was offered the opportunity to apply for a return to his previous post. He declined the offer.

No illegal deduction was made to the Complainant’s pay. He received the rate applicable to his position.

Witness evidence

Mr. David Madden

Mr. Madden gave evidence that he is a Forensic Examiner with a Certificate in hand-writing, who had given 80 witness reports in proceedings.

The witness stated that he had examined the alleged contract of January 2014 and the minutes of the two alleged meetings in February 2016. In his view, it was ‘strongly probable’ that the signatures that were purported to be those of the Complainant on those documents were not those of the Complainant. He stated that, in his view, there were differences between those signatures and the signature of the Complainant on other documents. The witness stated also that, in his opinion, it was strongly probable that the three signatures concerned had been applied at one sitting, though he accepted under questioning that this opinion was not included in his report supplied to the Court.

Under cross examination, the witness stated that he secured his qualifications through distance learning.

The witness stated that his was a qualified report as he examined copies rather than original documents.

The witness accepted that he was engaged to give evidence on behalf of one party to the proceedings but stressed that he was a witness for the Court and that he he would always offer his professional opinion. It was his professional opinion that it was ‘strongly probable’ that the signatures concerned were not those of the Complainant but he accepted that he could not state definitively that this was the case.

Mr. Dawid Bialowas

Mr. Bialowas gave evidence of his career with the Respondent, as set out above.

The witness stated that the only contract that he had signed was that of May 2011. This contract made no reference to any element of his pay being dependent on night work. He denied that he had signed another revised contract in January 2014. He denied that he had signed minutes of meetings in February 2016 that indicated a wish on his part to move to days.

The witness drew attention to the fact that he started work in the Drogheda store on 23 February 2016, the date shown in the minutes of one of the alleged meetings with his Store Manager in Navan.

The witness stated that there was no reason why he would have signed a contract ‘out of the blue’ in January 2014.

Under cross examination regarding the contract of May 2011, the Complainant confirmed that he had signed it, even though the Respondent had no copy of it and had doubts as to its authenticity. With regard to the fact that there were two copies of this document before the Court, the witness stated a belief as to the identities the two people who had signed for the Respondent. When it was put to him on behalf of the Respondent that the two people concerned had not done so, the witness stated that it was some time ago and he could not be certain but he believed that it had been the two people concerned.

The witness acknowledged that he knew that the Respondent paid extra to night workers. However, he referred to his contract and stated that he knew that contractual arrangements varied in the Respondent company.

The witness offered the view that he had been moved to day work to avoid paying him redundancy or compensation when the night shift was closed down, which happened in 2018.

The witness acknowledged that the possibility of a move back to Navan had been mooted to him but stated that he had made adjustments in his family life that rendered such a return to be very difficult.

The witness confirmed that he was not aware of any other staff member in the Respondent company who worked days and received a night premium. But stressed that his contract had been changed without notification.

The witness confirmed that the failure to offer redundancy or compensation to him formed part of his grievance.

When it was put to him that the Court had ruled against a colleague of his in the Navan store in an earlier determination in similar circumstances,Tesco Ireland and David Coleman PW/18/66,the witness stated that he was not aware of the case.

Ms. Louise Kelly

Ms. Kelly gave evidence that she is an Employee Relations Partner with the Respondent.

The witness stated that all contracts are issued from Head Office to the Regional teams who complete the individual details. She explained that there is a template contract for Night Line Managers and that this cannot be altered by Store Managers. This template makes provision for a night premium payment of one-third of pay and all management contracts contain a mobility clause.

The witness explained that, in 2014, a review was undertaken of night shift arrangements across the country. As a result, some stores ceased these arrangements in early 2015. Staff covered by collective agreements were compensated. Management were offered redundancy or redeployment. No Night Manager who was moved to day work continued to receive the night premium. At the time the Navan store was unaffected. The night shift was abolished there in 2018.

Under cross examination and questions from the Court, the witness stated that she believed the document produced to the Court purporting to be a contract with the Complainant from 2011 was, in fact, the contract of a Day Line Manager.

When it was put to the witness that this case differed from theColemancase, as the Complainant in the instant case is not covered by collective agreements and his agreement is required before his contract can be varied, the witness drew attention to the fact that the Determination in that previous case rejected the Worker’s appeal on the basis of the ‘normal arrangements applicable in the company’, which was equally relevant in the instant case.

The witness stated that she would not expect there to be formal correspondence in cases such as the instant case as there was an informality in the engagement between Store Managers and Regional Managers in such cases.

Ms. Geraldine Murray

Ms. Murray gave evidence that, while working as a Personnel Officer, in 2014 she had conducted file audits. As a result, she had identified gaps in various personnel files such as the absence of contracts. While she could not recall the Complainant’s situation specifically, the fact that she had counter-signed the 2014 disputed contract indicated to her that she must have identified the absence of a valid employment contract on the Complainant’s file and that she must have asked him to sign a new contract. She confirmed that her signature was on the 2014 contract. She totally refuted any suggestion that she would have ever forged a signature.

The witness explained that although the signed contract referred back to the date of the Complainant’s engagement as a manager, she would have included his then current pay rate.

The witness stated that she always followed the same procedure with colleagues in respect of such matters and that she would always check that they were happy to sign and, if not, that she would discuss any issues.

The witness stated that all contracts for Night Line Managers contained specific reference to the premium payment of one-third for night work and that this could not be changed.

Under cross examination and questions from the Court, the witness stated that she had never given a colleague the wrong contract to sign.

The witness said that, as part of the 2014 audit, she had looked at all Managers’ personnel files in her area and that some others had gaps and anomalies that required correcting.

The witness confirmed that the Complainant could not have had the original of any 2011 contract as these were kept on file and a copy was given to the employee. She said also that if she had come across a Day Line Manager contract on the file of a Night Line Manager, she would have sat down with the colleague and sought to correct this by getting them to sign the correct contract, in which case she would leave the other contract on the file.

Mr. Gavin Doyle

Mr. Doyle gave evidence that he was the Complainant’s Store Manager when, after Christmas 2015, it was brought to his attention by Ms. Breda Bergin, Personnel Manager, that the Complainant was seeking to work days. To give the Complainant time to deal with his difficulties, he was given 2 weeks’ work on days in January 2016, following which Ms. Bergin confirmed the Complainant’s wish to move totally to days for both health and personal reasons.

The witness said that he believed that he was conveying good news to the Complainant some weeks later when he was able to inform him of a vacancy in a Drogheda store, a short distance from his home. He said that the Complainant was ready to move immediately and the transfer was arranged to take place within days. He said that he would not normally have agreed such a transfer as he had no ready replacement and, pending securing a replacement, he had to cover the night shift with Day Managers. However, the Complainant was keen to transfer.

The witness denied that he had conspired to take false meeting notes.

When asked, the witness stated that all night workers in the company receive a premium payment of one-third and that he had indicated to the Complainant that, as a consequence of moving to day work, he could suffer a drop in income, without giving details.

Under cross examination and questions from the Court, the witness acknowledged that it was rare for a Store Manager to get involved in such a transfer unless there was a significant issue but he said that Ms. Bergin had enlisted his assistance in this case.

The witness stated that he was certain that he had been at a meeting with the Complainant and Ms. Bergin on 2 February 2016 as recorded in minutes taken by Ms. Bergin. He accepted that there was no reference to a pay reduction in those minutes.

The witness could not account for the fact that minutes of a purported meeting on 23 February 2016, at which the same three people were said to be present, could not be correct as the Complainant had moved to Drogheda on that date. He stated that the minutes were taken by Ms. Bergin. He believed that those minutes were signed by the Complainant and Ms. Bergin on the day of the meeting.

The witness confirmed that he had dealt with other requests for staff to leave night work and that all had understood that they would lose the one-third pay premium as a result.

Ms. Breda Bergin

Ms. Bergin gave evidence that she was Personnel Manager in the Navan store when in late 2015 or early 2016, she used to meet the Complainant on mornings when she went to work and the Complainant was finishing his shifts. The Complainant had been in a motor accident and was finding the night work to be physically difficult. Also, he had personal issues that were creating difficulties for him. He was keen to move to day work. The store had no vacancy for a Day Line Manager but she spoke to Mr. Doyle to see if something could be done for the Complainant. Following this, Mr. Doyle and herself met the Complainant. She took notes at the meeting on a relatively informal basis. From what she could recall, the witness said that she gave the notes to the Complainant to sign and she signed them also.

The witness stated that she was shocked and upset at any suggestion that she would have faked the Complainant’s signature. She described such a suggestion as ‘ridiculous’ and noted that such actions could be of no benefit to her. She stated that it was disheartening to face such suggestions when she had been there to support the Complainant.

The witness said that after the Complainant had been on days for two weeks, he said that he enjoyed it and it gave him more time with his daughter.

The witness accepted that the minutes shown dated 23 February 2016 were mistaken regarding the date shown and she stated that this was her mistake, most likely caused by the fact that it was agreed at the meeting that the Complainant would transfer to Drogheda on that date. She was ‘100%’ certain that the meeting occurred before the Complainant moved to Drogheda as there was no other way he could have moved.

She stated that the Complainant would have been aware that his pay included a premium for night work as he had staff working to him who had moved, including Mr. Coleman, to whose case reference had been made in these proceedings, and because all managers were aware of this fact.

She noted that the store had been willing to facilitate the Complainant with a return to his previous role.

Under cross examination and questioning by the Court, the witness acknowledged that a reference in the minutes of the second meeting to the location of the Drogheda store being ’20 minutes’ from the Complainant’s home was incorrect as he lived much nearer.

The witness acknowledged that the fact that the Complainant’s original contract from 2008 and his later contract as a manager from 2011 were missing from his file was most unusual. She stated that she had first seen the 2011 contract when it was produced at adjudication.

The witness stated that there was no need to refer the Complainant for medical attention when he voiced concerns about his health as he continued to attend for work.

The witness said that she told the Complainant that he would lose income by transferring to day work and told him that he had to make the choice between his income and his family as he was well aware of the standard pay practice.

The Law

Payment of Wages Act 1991

Interpretation

“contract of employment” means—

(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer

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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee)

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), 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,

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

Deliberation

The Court heard a great deal of argument regarding contracts, alleged contracts and disputed contracts in this case. Both sides claimed that there was, to put it mildly, doubt about the authenticity of documents produced to the Court that purported to be contracts. Indeed, the Complainant went so far as to engage a hand-writing expert to cast doubt about the authenticity of his alleged signature on a 2014 document that, on the face of it, looked like a contract for a Night Line Manager. This expert also cast doubt on the signatures, allegedly of the Complainant, on two sets of minutes that , if valid, substantiate the Respondent’s argument that the Complainant sought to leave night work.

This Court has no expertise in hand-writing but notes the strong refutations of witnesses at any suggestion that they might have been involved in wrong-doing and the fact that they could not gain personally from such actions. Indeed, on the contrary, such is the seriousness of these claims that it is worth noting that any person who engaged in a forgery would face, at the very least, the possibility of disciplinary proceedings by their employer.

In any event, despite the heavy concentration on what alleged and/or disputed contracts said or did not say, this Court has found in previous cases,Department of Public Expenditure v Brian Collins PW/18/14,Aer Lingus v Matchett PW/18/18andTesco Ireland v Marek Balans PWD 191that a contract need not be the sole determinant as to what is ‘properly payable’ within the meaning of the Act.

In the instant case, there is no dispute that premium payments are paid to staff who work on nights. In addition, it is common knowledge in the company that this is the case and that the value of these payments is an additional one-third of salary. Even if there was no doubt about the validity of the 2011 contract, (and the Court takes note that this question of doubt was not raised by the Respondent prior to the Court sitting or even in the submission made at the outset of the hearing), in the circumstances of the instant case, there can be little doubt that the Complainant would have been aware of this practice. Therefore, it can be implied that this was a term of the Complainant’s contract. The test for implied terms was set out inShirlaw v Southern Foundaries Ltd (1939) 2 KB 206as follows;

‘Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying that if, while the parties were making a bargain, an officious bystander were to suggest some express provision for it in the agreement they would testily suppress him with a comment ‘Oh of course’

A somewhat over-lapping test of ‘custom and practice’ was set out inO’ Reilly v. Irish Press (1937) 71 ILTR 194where the practice was defined to be

‘..so notorious, well-known and acquiesced in that in the absence of agreement in writing it is to be taken as one of the terms of the contract between the parties…’

An example of this test was that applied inMcCarthy v. HSE (2010) 21 ELR 165where the Court held that the retirement age applicable was so well known that it was an implied term of every public servant’s contract.

From the moment that he ceased to work nights, it must have been clear to the Complainant that he would cease to be paid the night premium. Therefore, as this premium was a term of his contract whether explicit or implicit, the only argument on which he could rely to substantiate his case is that he was forced, against his will, to move to day work, in breach of his contract and that the consequential reduction of his salary amounts to a breach of his rights under the Act. However, if that was the case, the Complainant was offered the opportunity to return to night work in his previous role when he complained about the salary effect on him of the transfer. That does not suggest that the Store Manager and Personnel Manager were conspiring to infringe his rights. On the contrary, it appears to substantiate their evidence that they responded to a request from the Complainant to move from night work, even if that caused significant disruption and inconvenience for the Store Manager, in particular. The fact that the Complainant chose not to avail of the offer could also be interpreted as indicating a wish to continue day working above any consideration of the impact on the Complainant’s earnings. That is, of course, his right and he put forward reasons for this that the Court does not question but it does indicate that day work had priority, which suggests further that he instigated the process that led to his transfer.

In circumstances where the custom and practice regarding extra pay for night work is constant and unvaried and is known throughout the company, the Complainant could not reasonably have expected to be paid the relevant premium upon moving to day work. If that caused him a problem then the solution was offered to him when he was afforded the opportunity to return to night work. It was his decision, and his decision alone, not to avail of this opportunity. No blame for the consequences can be laid at the door of the Respondent and it is clear that no breach of his rights occurred under the Act.

Determination

The Court upholds the decision of the Adjudication Officer.

Signed on behalf of the Labour Court



Tom Geraghty
FMC______________________
23rd July 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.