ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015995
Parties:
| Complainant | Respondent |
Anonymised Parties | Warehouse Operator | Grocery Distribution centre |
Representatives | Self | Killian O'Reilly McDowell Purcell Solicitors |
Complaint(s):
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-00019911-001 | 21/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00019911-003 | 21/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00020623-002 | 18/07/2018 |
Date of Adjudication Hearing:25/02/2019
Workplace Relations Commission Adjudication Officer:Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant is a warehouse operator who works at the Respondent’s regional distribution centre. The Complainant’s claim is that he is being paid less than the amount due to him in terms of his weekly wages, holiday pay and public holiday pay.
He also claimed he was not paid a bonus due to him.
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Summary of Complainant’s Case:
CA-00019911-001
This complaint is in relation to at what point his work commences. The Complainant explained that he arrives at the distribution centre ready for work. The Respondent requires him to wear certain clothing, shoes and equipment and these are kept in his locker. His case was that it takes approximately twenty minutes for him to get changed and to go to the “clock in station”. For that 20-minute period, he is not being paid.
His further explained that he had to clock out for break time and had to walk to the canteen and clock back in again. As before, he was not being paid for that time.
The Complainant’s case is that this time is not resting time and he should be paid for it.
He had a further complaint about clocking out and preparing to go home and he should be paid for this.
In summary, his case is that by any definition these periods should be counted as working time and should be compensated in accordance with his normal rate of pay.
CA-00019911-003
This complaint related to the payment of a bonus. The Complainant set out how he was not paid his bonus in March 2016 and March 2017. He referred to two letters from his employer dated 25th of February 2015 and 10th of March 2016. He set out that this bonus was a contractual entitlement and not a discretionary bonus.
CA-00020623-002
This is a complaint under the Organisation of Working Time Act and is a carbon copy of the complaint brought under the Payment of Wages Act reference CA-00019911-001 above save that it relates to annual leave and public holidays. |
Summary of Respondent’s Case:
CA-00019911-001
The Respondent’s case is that the claims are misconstrued. Section 5 of the Payment of Wages Act regulates the way an employer may make deductions from the employee’s wages. They argued that if there is no deduction, there cannot be a contravention of Section 5. In this case there is simply no deduction.
Without prejudice to same, the Respondent went on to detail how it felt that the Complainant was incorrect in relation to the substance of his assertions. Submissions were made as to how the clock in station is at the selections desk and the Complainant is under no obligation to spend time changing from his normal attire into work clothes. The Respondent submitted that the Complainant grossly exaggerated the time he says it takes to travel between the entry door to the distribution centre and the clock in station. The Respondent set out that the time it would take to travel the distance involved on an electric pick truck would be slightly over one minute and at normal walking speed would be no more than two and a half minutes.
CA-00019911-003
The Respondent referred to Section 6(4) of the Payment of Wages Act 1991. The complaint was submitted to the WRC on the 21st June 2018. Six months before that is the 21st December 2017. Even if the Complainant could demonstrate that there was reasonable cause which prevented the presentation of the complainant within the six-month period, the claim is still out of time.
CA-00020623-002
The Respondent’s case is that the Complainant is factually incorrect in his application and that he as grossly exaggerated his assertions. |
Findings and Conclusions:
CA-00019911-001
The Payment of Wages Act governs the method of payment of wages. Section 5 of the Payment of Wages Act deals with the regulation of deductions made by employers. The relevant parts are 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.
Wages is defined under the Payment of Wages Act 1991 as:
“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:
I am asked by the Complainant to establish that he should be paid for his time on the Respondent’s premises prior to clock in in the morning and after clock out in the evening and for his break times. Essentially this case is in relation to a non-payment of wages and whether this is a deduction.
To give effect to the legal definition of wages, wages payable means wages “properly payable”. In Sullivan –v- The Department of Education PW 2-97 the Employment Appeals Tribunal held that while there was no specific definition of deduction in the Payment of Wages Act, guidance can be taken from the definition of wages which includes all sums to which the employee is properly entitled.
Working time is defined in the Organisation of Working Time Act 1997 as meaning: “working time” means any time that the employee is—
(a) at his or her place of work or at his or her employer's disposal, and
(b) carrying on or performing the activities or duties of his or her work,
and “work” shall be construed accordingly.
Rest period means any period means any period which is not working time.
From the definition of working time, the use of the conjunctive “and” means that an employee must both be carrying on the activity of his work and doing so while in the workplace or while at his employer’s disposal.
I have heard the evidence of both sides and considered same. My preference is for the evidence of the Respondent. In practical terms, I cannot accept the Complainant’s submission that he is working when putting on his uniform which is not any way onerous and his preparation to clock in as working time.
The same applies to the rest break at work.
Therefore, I find that the case is not well founded.
CA-00019911-003
The Complaint is out of time even applying an extension of time. I do not have jurisdiction to hear the complaint.
CA-0020623-002
Sections 20, 21 and 22 of the Organisation of Working Time Act apply.
The Complainant’s entitlement to holiday and public pay is calculated based on what he is paid prior to taking holidays or the fall of public holidays.
The Organisation of Working Time (Determination of pay for holidays) Regulations 1997 clearly oblige the Respondent to make such calculations by reference to the factual reality of what the Complainant was paid prior to taking holidays or the fall of public holidays.
The Complainant brought his claim in respect of pay he should have been entitled to rather than what he was paid. This calculation is not allowable under the Act or the Regu
I find that the Complainant received all his entitlements under the Act. The complainant is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00019911-001: Not well founded.
CA-00019911-003 : The claim is still out of time.
CA-00020623-002: Not well founded. |
Dated: 16th May, 2019
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
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