ADJ-00014770

Complainant

Respondent

Anonymised Parties

A Cleaner

A Cleaning Company

Representatives

Hugh HegartyManagement Support Services (Ireland) Ltd

Act

Complaints Reference No.

Date of Receipt

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

CA-00018940-001

04/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00018940-002

04/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00018940-003

04/05/2018

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

CA-00018940-004

04/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00018940-005

04/05/2018

The complainant was employed by the respondent as a cleaner on the 9^th June 2004. She works 40 hours per week, and she is paid €11.48 per hour. She was transferred under the TUPE Regulations to the respondent company in October 2010. The complainant referred these complaints to the WRC on the 4^th May 2018. She is claiming that the respondent contravened the TUPE Regulations, the Payment of Wages Act 1991 and the Industrial Relations Act 1946 regarding her pay. She is also claiming that she has been discriminated against on the grounds of age under the Employment Equality Act, 1998.

The complainant submits that the respondent is in breach of TUPE regulations because they failed to pay her pay increases under the Employment Regulation Order JLC rates for contract cleaners which came into operation in 2015 and 2016. She said she was employed by a contract cleaning Company X in 2004 and her pay was higher than the JLC rates, but it was always linked to increases granted under the JLC and her pay was increased in line with these rates. In 2010, her employment was transferred under the TUPE Regulations to the respondent company. The complainant said all her employment rights transferred including her right to maintain the link with the JLC rates. A new JLC rate for contract cleaning workers S.I. No. 418/2015 came into operation in October 2015 and S.I. No. 548/2016 came into operation in December 2016.  It was only applied to new workers and the transferred employees including the complainant were not given any increases in line with the new JLC rates. 

In support of her contention that there was a link between her pay and increases granted under the JLC rates, the complainant submitted a memorandum which was issued to all staff by her previous employer on the 1st of September 2004 which stated:

"Following the JLC order regarding overtime we are currently adjusting overtime payments, including back pay relating to the implementation date, please find below the changes as detailed and the date of the application.

.....

If you have worked any overtime that is effected by this since the 1^st July, you will find a payment on your payslip for the period week ending 5^th September 2004, under ‘Sundry’ payment, this will be the back pay owed to you for any relevant overtime.

there have also been some inquiries about JLC increases and the base rate. As you are aware, there was an increase in March of 3% which was applied to the base rate across site and retains the position of all Company XX staff on site above the statutory minimum.

The next increase is due from 1st December 2004. Please refer to the JLC order, a copy of the nominated minimum wage rates as printed from the JLC website on 31st August 2004, on the notice board."

The complainant submits that this document supports her contention that her wages automatically increased in line with increases granted under the ERO.

On the 1^st October 2015 a new ERO S.I. No.418 of 2015 granting 25c per hour was implemented for the cleaning industry and an Order amending this ERO S.I. No. 548 of 2016 granting an increase of 30c on 1^st December 2016, and an additional 0.35 cent per hour starting December 2017 and 40 cents per hour on 1st December 2018. The complainant is claiming that she is entitled these increases.

It was submitted that it is very clear under the TUPE Regulations, when a transfer takes place, the new employer has a legal obligation to follow all the rules and regulations of the previous employer. The respondent must continue to observe the terms and conditions of employment which were applicable before the transfer. The complainant said that a representative of the respondent told the employees on the 4th of May 2010, that nothing would change and that they would observe the terms and conditions they had with the previous employer, but this has not happened.

The complainant submits that she has been discriminated against on the age ground in relation to pay contrary to the terms of the Employment Equality Act. The complainant said that she was discriminated against in relation to her length of service by the respondent, when they failed to grant her a pay increase under the JLC, whereas new employees with shorter service were all granted pay increases. She said that she has been working for the company for 18 years and she had not got a pay increase in the last 10 years. She said that a pay increase should have been given to all employees and not to only those on the JLC rates. She said that she is discriminated against in relation to her working conditions and the equal division of labour. She said that newly hired employees are given much easier jobs and yet they are the ones who received salary increases. She said that employees with the longer service including herself and those who transferred under TUPE are sent to do the special jobs and in particular the hard jobs and also to carry out staff training because of their expertise in doing these jobs.

The complainant commenced employment with the company on the 9^th June 2004, as a cleaning operative, after being transferred to the respondent company under to TUPE regulations from XX Company Limited. She was assigned to work as a cleaner on Site A.

On transferring the complainant was on a rate of pay of €11.48 per hour, which was the rate of pay applicable on the site at the time. This rate of pay was in excess of the JLC rate pay which, at the time, was €9:50 per hour.

The JLC was declared unconstitutional in 2011 and after that time the rates of pay where set by each individual company. In 2015, a new JLC was established setting rates of pay for contract cleaners

On Site A, it was acknowledged that the staff were in receipt of a site-based rate of pay and this was confirmed in the due diligence documentation that was provided at the date of the transfer. This also confirmed that there were no staff on the JLC rate of pay.

On further examination of the due diligence documentation it is clear there is no indication that the rate of pay was linked to the JLC, which at the time of transfer was still in existence.

The complainant is maintaining, as part of her terms and conditions of employment which transferred with her to the respondent company, that she is entitled to the same increases that applied to those on the JLC rates, even though they were not even applied on her site. In support of this she seems to be relying on a document dated in 2004 only.

The complainant is seeking to establish a relativity with the JLC in order to have her rate of pay adjusted by the JLC increases. However, it is very clear there is no established relativity between the rates of pay defined by the JLC and the complainant's rate of pay.

The respondent also contends there is no basis for claiming that within the industry people on a higher rate of pay are entitled to an increase purely and simply because there has been an increase in the statutory minimum rate of pay. In this particular case, there were no employees on the minimum rate of pay on this site, so this means that the complainant is attempting to create a link to rates of pay for employees who are in other locations which have nothing to do with the site the complainant works on.

The respondent submitted that in both the contract cleaning and security industries, it is not uncommon to have different rates in operation on different sites and if one moves from one site to another, the rate of pay applicable to that site is paid. In fact, within Site A, where the respondent company also provide security cover, the officers who transferred into the respondent company were on a higher rate which was not linked to the JLC rate and continues not to be linked even though there are staff employed there now on the JLC rate.

The respondent also contends it is well accepted that where the statutory minimum rate of pay is increased this does not create a basis for a claim that all rates of pay in excess of that should be increased, unless there is a specific agreement to this effect.

The complainant is already in receipt of a rate of pay which is well above the industry rate and to increase this further would only add to the competitiveness of this contract and create a relationship which places the cost of operating the site out of the control of the company.

Payment of Wages Act, Time Limits

The respondent stated that the complainant has, in her claim, stated that the deduction upon which the complainant is basing her claim was made on 1st December 2016. Accepting this to be the date of the claimed contravention, in accordance with section 41, Workplace Relations Act, 2015, the complainant has six months in which to lodge a claim for unlawful deduction of wages. This means that this claim which was submitted to the WRC on the 4th of May 2018 applies only back to the 5th of November 2017.

The complainant has two complaints under the Payment of Wages Act and is attempting to claim in one of them that there is a liability going back to the 1st of December 2016 and in the other that there is a liability going back to October 2015.

Section 41(6) of the Workplace Relations Act 2015 provides that a claim must be lodged with the WRC within 6 months of the contravention and this may be extended to 12 months if reasonable cause can be shown for the delay. It is submitted that this complaint has been referred outside the statutory 6 months and I have no jurisdiction in the matter.

The respondent submitted that the new contract cleaning JLC introduced a new ERO minimum wage in October 2015, but the complainant only made a complaint on the 1st of December 2016. This too shows there was no expectation of an increase at that time and no employees on the site were entitled to an automatic increase in their basic rate of pay when the new JLC was created, only those who were on or below the JLC rate. The respondent therefore contends that there is no entitlement or agreement to link the complainant's rate of pay to the JLC, the complainant is not entitled to an automatic increase. It was submitted that there was no unlawful deduction made by the employer.

The complainant is claiming that there has been a breach of the TUPE Regulations when she was transferred to the respondent company.

Under the TUPE Regulations the complainant must bring such a complaint within six months of the date of the breach. The transfer to the respondent took place in 2010 and the complainant was paid €11.48 per hour, in accordance with the information provided in the due diligence. At this time the JLC in existence had set a rate of €9.50 per hour.

The next time there was a change in minimum rates was when a completely new JLC was established and, on 1st October 2015, the rate set was €9.75 per hour. However, at this time the complainant's rate of pay remained the same. The company contends that if the complainant was correct in her contention that she is entitled to an increase then the date of that breach is October 2015, which is outside the six months allowed to make a complaint and also outside the 12-month extension. The respondent contends that the complainant cannot support a claim that there was a breach of the Regulations for the reasons as outlined as there was no entitlement to the increase within her terms and conditions and the claim is now out of time. Therefore, this claim fails.

Employment Equality Act

The complainant is maintaining that she was discriminated against on the grounds of age in relation to her terms and conditions of employment. The first consideration is whether the complainant has established a prima facie case pursuant to section 85A of the Act. The Labour Court has consistently held that the facts, from which the occurrence of discrimination may be inferred, must be of sufficient significance before a prima facie case is established and the burden of proof shifts to the company.

It has been well established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably then another person is, has been, or would be treated, on the basis of the discriminatory ground cited. I was referred to the Labour Court jurisprudence in the Southern Health Board v Mitchell, DEE011, 2001 ELR 201, where the Court set out what is required to establish a prima facie case.

In this case the complainant has stated in her claim that the basis for her claim for age discrimination is based on years of service and it has nothing to do with her age.

It was submitted that the complainant is trying to substitute service for age which is not contemplated by the Act itself. Furthermore, the complainant has failed to identify a comparator who is on the same rate of pay and has been treated more favourably. The respondent contends that the complainant has failed to establish a prima facie case of discriminatory treatment on the age ground and therefore her claim must fail.

 CA-00018944-01 Payment of Wages Act 1991

 Preliminary Issue Time Limits

The respondent submitted that this claim was referred outside the statutory time limit.  The complainant referred a complaint under the Payment of Wages Act concerning the non-payment of pay increases under S.I. No. 418/2015 Employment Regulation Order (Contract Cleaning Joint Labour Committee 2015 and S.I. No. 548 of 2016 Employment Regulation (Amendment) Order (Contract Cleaning Joint Labour Committee 2016 on the 4^th May 2018.

The Workplace Relations Act 2015 at Section 41(6) provides:

 “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.”

And Section 41(8) provides

(8) “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In considering the above sub-sections of the Act, I have applied the jurisprudence of the High Court Judgement in the case of Health Service Executive v John McDermott [2014] IEHC 331 concerning time limits in the Payment of Wages Act 1991 and the “date of the contravention to which the complaint relates.”. Judge Hogan held that: “In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

Judge Hogan went on to hold that there is a “rolling time limit in the law”.

The complainant is claiming that there was alleged on-going deductions from her wages due to the respondent’s failure to pay increases in the 2015 and 2016 EROs and said that the deductions were made on the 1^st December 2017. I note that the 2016 ERO, which amended the 2015 ERO, provided for the continued payment of the increased hourly rate provided for in the 2015 ERO up until the 1^st December 2016, and then provided further increases on 1^st December 2016, 1^st December 2017 and 1^st December 2018. Applying the judicial guidance of the High Court in the above case concerning the date of the contravention and time limits, I am satisfied that the cognisable period for the purposes of the Payment of Wages Act is 5^th November 2017 to the 4^th of May 2018, the date on which the complaint was referred and that “every distinctand separate breach”  which occurred each week in this period amounts to a “contravention” of the Act.  I note the complainant claimed that the respondent made an unlawful deduction on the 1^st December 2017 and this date of the alleged breach is within the cognisable period. I am satisfied therefore that the complaint was referred within the statutory time limit and I have jurisdiction in the matter.

Substantive Complaint

The complainant’s case is that she is entitled to an increase in her wages in line with the increases granted under the Employment Regulation Order for 2015 and 2016. She said her wage increases were always linked to the ERO rate increases and she always got these increases prior to the TUPE transfer even though her hourly rate of pay was greater than the ERO rates.

““wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with her employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to her employment, whether payable under her contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of her contract of employment without her having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

 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 her 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,

Section 5(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.”

The cognisable period for the purposes of the Payment of Wages Act is 5th November 2017 to the 4th of May 2018, the date on which the complaint was referred.

The respondent disputes that there was any link between the complainant’s rate of pay and increases granted by the JLC ERO. The due diligence carried out prior to the TUPE transfer does not support this contention. The complainant maintained that, while she was paid in excess of the JLC rate, the previous employer always granted wage increases in line with the JLC rates.  She produced a memorandum concerning the application of JLC increases which was issued to all staff, which I have quoted above, to support her case. The document refers to the JLC increases in respect of overtime and back pay due to the staff and the due date for new JLC rates. It also states that the new rates retain the position that all staff on the site are paid above the statutory minimum rate.

I am satisfied from the evidence and the document presented by the complainant that the employer, prior to the TUPE transfer, awarded increases to the complainant in line with increases awarded by the Employment Regulation Orders JLC for the contract cleaning industry and this evidence supports the complainant’s claim. I find therefore, that the complaint is well founded.

I order the respondent to pay the complainant for the cognisable period, 25 cent per hour plus 30 cent per hour increase from the 5th November 2017 and a further increase of 35 cent per hour from the 1st December 2017, in accordance with the increases set out in out in S.I. No. 418 of 2015 Employment Regulation Order (Contract Cleaning Joint Labour Committee) 2015 and  S.I. No. 548 of 2016 Employment Regulation (Amendment) Order (Contract Cleaning Joint Labour Committee) 2016.

CA-00018944-002 Section 45A of the Industrial Relations Act 1946.

The complainant is claiming a breach of the ERO S.I. No 418/2015 and ERO S.I. No. 548 as she was not paid the pay increases granted for contract cleaners under either of those Statutory Instruments.

I note that the complainant was paid €11.48 per hour, a rate in excess of the statutory rate set in the in the ERO. I find that this complaint is not well founded.

CA-00018944-003 Employment Equality Act, 1998

The complainant is claiming that she is being discriminated against on the grounds of age in relation to her pay and conditions of employment.

Section 6(1) of the Employment Equality Acts provide:

“discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would

be treated in a comparable situation on any of the grounds specified in

subsection (2) (in this Act referred to as the ‘discriminatory grounds’)”

Section 6(2) provides:

“As between any 2 persons, the discriminatory grounds (and the descriptions of

those grounds for the purposes of this Act) are—

…….

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and

a provider of agency work shall not discriminate against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider of agency work

shall be taken to discriminate against an agency worker unless (on one of the

discriminatory grounds) that agency worker is treated less favourably than another

agency worker is, has been or would be treated.

…….

(5) Without prejudice to the generality of subsection (1), an employer shall be taken

to discriminate against an employee or prospective employee in relation to access to

employment if the employer discriminates against the employee or prospective

employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom

employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements

for employment which are not specified in respect of other persons or

classes of persons, where the circumstances in which both such persons or

classes would be employed are not materially different,”

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides:

"Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary."

 In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The LC stated that the complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established she was discriminated against on the age ground.  It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the Respondent to rebut the prima facie case raised.

The complainant said in evidence that she was discriminated against because she has longer service than other workers and she was treated less favourably because they were granted pay increases. She was asked to do more difficult work and was not granted equal working conditions with persons who has less service than she has. 

The complainant has put forward no cogent evidence whatsoever to support her contention that she was treated less favourably on the age ground, in relation to her pay or conditions of employment, than another person was treated in similar circumstances. Therefore, she has failed to demonstrate a prima facie case of discrimination on the age ground.  I find therefore that the complainant was not discriminated against on the age ground contrary to the Act.

CA -00018944-004 Payment of Wages

The respondent submitted that this claim was referred outside the statutory time limit.  The complainant referred a complaint under the Payment of Wages Act 1991 concerning a breach of the Act which he stated occurred on the 1^st December 2015.

The Workplace Relations Act 2015 at Section 41(6) cited above provides a 6-month time limit and sub-section 8 provides for an extension to 12 months provided reasonable cause for the delay can be shown.

The cognisable period for the purposes of the Payment of Wages Act is 5th November 2017 to the 4th of May 2018, the date on which the complaint was referred. As the claim referred relates to an alleged breach of the Act in 2015 it is outside the statutory time limits cited above. Therefore, I have no jurisdiction in the matter.

CA-00018944-005 TUPE Regulations 2003 S.I. No 131 of 2003  

The respondent submitted that this complaint was referred outside the 6-month statutory time limit since the date of the alleged breach.  The TUPE transfer took place in 2010 and the JLC rate was €9.50 per hour and the complainant rate of pay was €11.48. The next time there was a change to the ERO by the JLC was in 2015, when a new JLC was established, and the rate was increased to €9.75 per hour from 1st October 2015. The complainant’s hourly rate of €11.48 remained the same. Given that the complainant did not make any complaint in respect of the ERO for 2015 or 2016, it was submitted that any claim is now outside the statutory time frame. The complainant said that in a letter to management on the 3rd July 2017 signed by all the employees who transferred that she requested the pay increases contained in the 2016 ERO as she had been paid in line with the ERO increases before the TUPE transfer. The complainant also submitted that the six-month time limit for referring a complaint should not apply as the S.I. No. 548 of 2016 is in implementation until 1st December 2018. 

The Workplace Relations Act 2015 at Section 41(6) provides:

 “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.”

And Section 41(8) provides

(8) “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In considering the respondent’s submission and the statutory time limits in the 2015 Act for referring a claim, I have applied the judgment of the High Court in the case of the Health Service Executive v John McDermott [2014] IEHC 331.  This case concerned the time limits in the Payment of Wages Act 1991 now amended by the Workplace Relations Act 2015 which had similar wording to the 2015 Act cited above.  Hogan J considered the construction of the time limit section and the meaning of the words “on the date of the contravention to which the complaint relates” and stated the following:

“The construction of s. 6(4) of the 1991 Act

12. It is at this point that we can return to the construction of the relevant language of s. 6(4), namely, “within the period of 6 months beginning on the date of the contravention to which the complaint relates”. The first thing to note is that no special meaning has been ascribed to the word “contravention” by the 1991 Act, so that it must be given its ordinary, natural meaning.

13. We may next observe that the actual language of the sub-section is clear, because it is the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly, and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period.

14. Yet the relevant statutory language takes us somewhat further, because the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.”

Judge Hogan went on to hold that there is a “rolling time limit” in the law.

Pursuant to the interpretation of statutory time limits by the High Court in the above cited HSE case, I consider the judicial guidance given by Judge Hogan is similarly applicable in the instant complaint concerning time limits under section 41(6) of the 2015 Act. The complainant referred the complaint on the 4th May 2018. Therefore, the cognisable period for the purposes of the TUPE Regulations is 5th November 2017 to the 4th of May 2018, the date on which the complaint was referred.  I will examine the evidence to establish if the complainant referred a contravention within this “rolling time limit” period. The complainant is claiming that the respondent has contravened TUPE Regulations by failing to honour pay increases following the transfer which was a term of her contract of employment.  I note that the complainant is seeking an entitlement to the increases granted under SI No 548 of 2016 Employment Regulation (Amendment) Order (Contract Cleaning Joint Labour Committee) 2016 which amended S.I. No.418/2015 Employment Regulation Order (Contract Cleaning Joint Labour Committee 2015, and continued the increases granted under the 2015 ERO and provided for further hourly increases from 1^st December 2016, 2017 and 2018.  The High Court in the HSE case cited above, Judge Hogan held that “every distinct and separate breach of the 1991 Act amounts to a “contravention”.   Applying the above jurisprudence of the High Court, I am satisfied that the alleged contravention (i.e. the non-payment of increases in accordance with the 2015 and 2016 EROs) which occurred in the cognisable period from the 5th of November 2017 to the 4^th of May 2018 was referred within the statutory time period as each week of the non-payment of the hourly rate increase amounts to a separate contravention of the TUPE Regulations.  Furthermore, I am also satisfied that the complainant’s complaint in relation to 1st December 2017 was referred within the statutory 6-month period.  I find that the complaint in respect of a contravention of the TUPE Regulations is not statute barred and I have jurisdiction in the matter.

Substantive Issue

The complainant submits that she was paid €11.48 per hour which was above the ERO rate, but it was a term of her contract of employment before the TUPE transfer that when the ERO rate increased she was paid the relevant increase which applied. In support of this contention, she provided a document in evidence which was issued to all staff by the previous employer dated 1st of September 2004 which stated:

"Following the JLC order regarding overtime we are currently adjusting overtime payments, including back pay relating to the implementation date, please find below the changes as detailed and the date of the application.

.....

If you have worked any overtime that is effected by this since the 1^st July, you will find a payment on your payslip for the period week ending 5^th September 2004, under ‘Sundry’ payment, this will be the back pay owed to you for any relevant overtime.

there have also been some inquiries about JLC increases and the base rate. As you are aware, there was an increase in March of 3% which was applied to the base rate across site and retains the position of all Company XX staff on site above the statutory minimum.

The next increase is due from 1st December 2004. Please refer to the JLC order, a copy of the nominated minimum wage rates as printed from the JLC website on 31st August 2004, on the notice board."

The respondent rejects the contention and stated that the due diligence did not establish any such link.

The relevant law is Statutory Instrument 131/2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. This transposes the European Directive 2001/23 “on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertaking or businesses or parts of undertakings or businesses.”  

Article 3(1) of the Directive which has been transposed in the Regulations as Regulation 4, provides that:

“The transferor’s rights and obligations arising from a contract of employment or an employment relationship, existing on the date of a transfer, shall, by reason of such transfer, be transferred to the transferee.”

Regulation 9.   (2) provides: “A provision in any agreement which is or becomes less favourable in relation to an employee than a similar or corresponding entitlement conferred on the employee by these Regulations shall be deemed to be modified so as not to be less favourable.

(3)   Nothing in these Regulations shall be construed as prohibiting the inclusion in an agreement of a provision more favourable to an employee than any provision of these Regulations.”

It is clear from the document provided by the complainant that the previous employer, prior to the TUPE transfer, awarded increases to the complainant in line with increases awarded by the Employment Regulation Orders JLC for the contract cleaning industry. I am satisfied that the respondent was in contravention of Regulation 4 of the TUPE Regulations in relation to the complainant’s contractual right of pay increases equivalent to the pay increases granted under S.I. No. 418/2015 Employment Regulation Order (Contract Cleaning Joint Labour Committee 2015 and S.I. No 548 of 2016 Employment Regulation (Amendment) Order (Contract Cleaning Joint Labour Committee) 2016 which amended the 2015 ERO.  I find therefore that the complaint is well founded.

CA-00018944-01 Payment of Wages Act 1991

I find therefore that the complaint is well founded.  Section 6 of the Payment of Wages Act provides for redress as follows:

6. (1) A decision of an adjudication officer under  section 41  of the Workplace Relations Act 2015, in relation to a complaint of a contravention of  section 5  as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding  —

(a)   the net amount of the wages (after the making of any lawful deduction therefrom) that —

(i)  in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or 

(ii)   in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, 

I order the respondent to pay the complainant in the period the 5^th November 2017 to the 4^th May 2018 the following hourly increases:  25 cent and 30 cent per hour increase from the 5th November 2017 and a further increase of 35 cent per hour from the 1st December 2017 to the 4^th May 2018 based on the hours worked in this period and in accordance with the increases set out in S.I. No. 418/2015 Employment Regulation Order (Contract Cleaning Joint Labour Committee 2015 and S.I. No 548 of 2016 Employment Regulation (Amendment) Order (Contract Cleaning Joint Labour Committee) 2016.  This payment is subject to any lawful deductions.

CA-00018944-002 Section 45A of the Industrial Relations Act 1946.

I find that this complaint is not well founded.

CA -00018944-004 Payment of Wages

The claim was referred outside the statutory time limits. Therefore, I have no jurisdiction in the matter.

 CA-00018944-005 TUPE Regulations 2003 S.I. No 131 of 2003

I find that the complaint is well founded.

Section 10 (5) of the Regulations provides as follows:

(5) “A decision of a rights commissioner under paragraph (4) shall do one or more of the following:

(a)     declare that the complaint is or, as the case may be, is not well founded;

(b)     Require the employer to comply with these Regulations and, for that purpose, to take a specified course of action; or

(c)     require the employer to pay to the employee compensation of such amount (if any) as in the opinion of the rights commissioner, is just and equitable in the circumstances, but -

(i)      in the case of a contravention of Regulation 8, not exceeding 4 weeks remuneration and,

(ii)      in the case of a contravention of any other Regulation, not exceeding 2 years remuneration,”

I order the respondent to comply with the terms of the TUPE Regulations in relation to her contract of employment and to increase the complainant’s hourly rate of pay in line with the increases under No. 418/2015 Employment Regulation Order (Contract Cleaning Joint Labour Committee 2015 and S.I. No. 548 of 2016 Employment Regulation (Amendment) Order (Contract Cleaning Joint Labour Committee) 2016 from the date of this decision.  

Pursuant to Regulation 10(5)(c) of the TUPE Regulations, I can order compensation of up to 2 years remuneration which amounts to about €47,750 for the breach of the Regulations. In deciding the appropriate amount of compensation, I have taken into account the fact that it is a contravention of EU law which requires that sanctions should be effective, dissuasive and proportionate.  I order the respondent to pay the complainant €6,500 compensation for the contravention of her rights under the TUPE Regulations which is just and equitable in the circumstances.

Payment of Wages Act, 1991 – unlawful deduction failure, to pay increases, Section 41 (6) Workplace Relations Act, 2015 – time limits for referring a complaint, Section 45A of the Industrial Relations Act, Employment Regulation Orders, Contravention of TUPE Regulations.