ADJ-00012647

Complainant

Respondent

Anonymised Parties

Cleaner/Operations Manager

Cleaning Company

Representatives

Marius Marosan Marius Marosan

Colin McGlynn CMG Consultants

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-00016813-001

14/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016813-002

14/01/2018

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

CA-00016813-004

14/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016813-005

14/01/2018

The complainant worked as a cleaner and Operations Manager for the respondent from Jan. 7th, 2013 to Sept. 15th, 2017. His hourly rate was €10.60 and he (allegedly) worked 60 hours per week.

CA-00016813-001 - The claimant alleges that on Sept. 22nd, 2017 he should have received a payment of €7,716.80. He alleges that this amount is comprised of the overtime rates as set out in the Employment Regulation Order (E.R.O.) for the Contract Cleaning industry. His calculation is based on the allegation that he worked 60 hours per week (with 44 hours due to be paid at the normal rate, another 4 hours to be paid at 1.5 of the normal rate and the remaining 12 hours to be paid at double rate). However, he contends that he was paid for all work hours at the normal rate.

CA-00016813-002 – The claimant alleges that for the period 02/03/2017 to 13/09/2017 he was working an average of 60 hours per week, in breach of working time regulations.

CA-00016813-004 – The claimant alleges that the contract he received in April 2017 did not comply with the aforementioned E.R.O.’s provisions.

CA-00016813-005 – The claimant alleges that he had to leave his job, as the respondent was exploiting him and refusing to adhere to work time regulations or to pay the appropriate overtime hours’ rates.

CA-00016813-001 - The claimant alleges that on Sept. 22nd, 2017 he should have received a payment of €7,716.80. He alleges that this amount is comprised of the overtime rates as set down in the Employment Regulation Order (E.R.O.) for the Contract Cleaning industry. His calculation is based on the allegation that he worked 60 hours per week (with 44 hours due to be paid at the normal rate, another 4 hours to be paid at 1.5 of the normal rate and the remaining 12 hours to be paid at double rate). However, he contends that he was paid for all work hours at the normal rate and that ‘surplus hours’ (over and above those enabling compliance with the Organisation of Working Time Act, 1997) were paid to an ‘absent employee’, albeit into the complainant’s bank account (into which payments to the complainant’s sister and brother in law were also made). The complainant’s calculations are based upon an estimated average of 60 hours per week paid at €10.60 per hour, yielding a payment of €636 per week (€636 per week was paid). However, if paid overtime, the payment should have been: for the first 44 hours €466.40; for the next 4 hours (at 1.5) €63.60 and for the outstanding 12 hours (at 2.0/double time) €254.40. This gives a total of €784.40. €784.40 minus €636 is €148.40. By multiplying the €148.40 over 52 weeks a total shortfall is calculated at €7,716.80. Given the contrasting assessments, the complainant argued that the onus is on the respondent to show that the complaint is not well founded. Related thereto, he asked for the respondent to produce ‘sign in - sign out’ sheets (as they are obliged to maintain under the Organisation of Working Time Act). The claimant also noted the absence of the ‘absent employee’ from the ‘Deep Clean’ listing as proof of the aforementioned arrangement.

CA-00016813-002 – The claimant alleges that for the period 02/03/2017 to 13/09/2017 he was working an average of 60 hours per week, in breach of working time regulations.

CA-00016813-004 – The claimant alleges that the contract he received (in April 2017) did not comply with the aforementioned E.R.O.

CA-00016813-005 – The claimant alleges that he had to leave his job, as the respondent was exploiting him and refusing to adhere to work time regulations or to pay the appropriate overtime rates.

CA-00016813-001 The complainant’s employment ended on the 15th September 2017. His claim therefore applies to the 6 months prior to his resignation (i.e. for the pay period 15th March 2017 to 15th September 2017). The claimant set his own working hours depending on business demands, which he then confirmed by email on a fortnightly basis. At the WRC hearing on the 12th September 2018 it is alleged that the claimant gave testimony that he knowingly submitted falsified staff work hours via email to the company, asking that hours that he had worked be paid to another employee, who was not in the country at that time (i.e. the ‘absent employee’). At the same hearing, the respondent contends that weight was placed on an email sent to the respondent, outlining bonuses paid to a number of staff for undertaking ‘deep clean’ activities. The aforementioned ‘absent employee’ was not listed in this email. The claimant’s testimony on the day allegedly implied that this was proof that the company were aware that the ‘absent employee’ was not working for the company at the time and therefore that is why a ‘deep clean’ related bonus was not paid to him. However, it is the respondent’s understanding that the ‘absent employee’ had not undertaken ‘deep clean’ work and therefore had no entitlement to payment for same. Furthermore, the respondent alleges that he/she never (before) saw the email dated July 19th, 2017 (from the complainant to the respondent), that lists staff ‘deep clean’ work hours. At the same hearing, it was alleged that the claimant gave testimony relating to ‘false emails’ that he sent to the respondent, who knowingly participated in behaviour designed to ensure that the claimants’ working hours did not exceed the average working week of 48 hours (as required under the Organisation Working Time Act). The respondent categorically denies being aware of any such behaviour. As far as the respondent is aware, the emails submitted by the complainant which outlined his hours, the hours of the ‘absent employee’ (and other staff hours under the claimant’s supervision) were correct and legitimate. Based on an analysis of payslips, the respondent contends that the claimant never worked more than an average 42.5 hour working week - in line with the Contract Cleaning E.R.O. (i.e. S.I. 548 of 2016) - and was not entitled to a premium payment for his working hours, as a premium payment on overtime only applies after 44 hours, even though the respondent alleges that they overpaid the claimant on a number of occasions in 2017.

The respondent submitted a summary spreadsheet analysis of the claimant’s payslips for 2017, (allegedly) confirming the following:

1. The claimant was paid €10.60 per working hour – the E.R.O. rate from 2017 was €10.05. In 2017 the claimant was paid an average hourly rate of €10.64. His average hourly rate of €10.64 was 5.9% above the 2017 E.R.O. rate. In 2017, based on working a total of 906 hours at €0.59 above the E.R.O. rate, the claimant was overpaid by a total of €531.10.
2. The claimant’s average working week was 32.46 hours based on a fortnightly payroll.
3. The claimant never worked more than 85 hours in any given fortnight (i.e. an average 42.5 hours per week).
4. Even though the claimant never worked more than an average of 42.5 hours in any working week, in 2017 he still received overtime payments for 107 hours in line with company policy. These hours were paid at premium hourly rates that varied from €12 to €25 per hour. In total, the claimant received payments of €1,482 for overtime in 2017.
5. In 2017, based on payslip working hours, the claimant earned €9,636.40. Accruing annual leave at 8% would place his accrued annual leave entitlement at €770.91 but the claimant was paid €1,993.25 (i.e. he was overpaid for annual leave by a sum of €1,303.80).

The respondent also contends that the claimant was paid a total of €1,089.95 in cash bonuses in 2017. Furthermore, evidence supplied by the claimant’s rep. on 26th September 2018, are (allegedly) inaccurate as:

• The calculations submitted are not based on the prevailing E.R.O. rates of the time and are all incorrect. For example, the complainant claims overtime premiums in 2015/2016 on a base rate of €10 even though the E.R.O. rate in 2015/2016 was €9.75. He also claims overtime premiums in 2017 on a base rate of €10.60, though the E.R.O. rate in 2017 was €10.05. The respondent offered 3 examples (taken from the claimant’s submission (allegedly) showing inflated claims of 26, 98 and 20 per cent respectively.

·         The claimant’s calculations make no reference to the fact that he was paid above the E.R.O. rate at the time and the respondent alleges that he can confirm that the claimant was paid a total of €531.10 in excess of the E.R.O. rate in 2017 (see Point 1 above).

·         The claimant’s calculations make no reference to bonus payments made to him (i.e. a total of €1,089.95 in cash bonuses in 2017).

• The claimant’s calculations make no reference to annual leave overpayments – the claimant was overpaid annual leave of €1,303.8 in 2017 (see point 5 above).
• The claimant’s calculations make no reference to overtime payments – the claimant was paid overtime of €1,482 in 2017 (see point 4 above).

Based on the respondent’s dataset for 2017, the claimant was paid €4,406.85 in excess of his E.R.O. and statutory entitlements (i.e. he was paid in excess: of the E.R.O. hourly rate at €531.10, of overtime premiums at €1,482, of the statutory annual leave entitlement at €1,303.8 and paid cash bonuses of €1,089.95). Furthermore, on the basis of the emails received from the claimant, all staff were paid appropriately and legitimately. Notably, the respondent also pointed out that as supervisor, it was the claimant’s responsibility to return the hours worked by staff.

CA-00016813-002 The claimant’s employment ended on the 15th September 2017. His claim therefore applies to the 6 months prior to his resignation (i.e. for pay period 15th March 2017 to 15th September 2017). As Operations Manager for the respondent, the claimant set his own working hours depending on business demands and which he then confirmed by email on a fortnightly basis. At the W.R.C. hearing on the 12th September 2018, the respondent alleges that the claimant gave testimony that he knowingly submitted false emails to the company asking that hours that he had worked be paid to another employee (i.e. the aforementioned ‘absent employee’). In line with the respondent’s position in respect of the claim addressed above (i.e. CA-00016813-001), it is the respondent’s understanding from the relevant emails, that the ‘absent employee’ had not undertaken deep clean activities and therefore had no entitlement for payment for same.

At the same hearing, it is alleged that the claimant gave testimony that the behaviour as outlined above, relating to false emails sent by the claimant, was known by the respondent and that they knowingly participated in this behaviour to ensure that the claimant’s working hours did not exceed the average working week of 48 hours (as required under the Organisation Working Time Act). The respondent insists that this is a false claim. The respondent confirms that - as far as they were aware - the emails submitted by the claimant, which outlined his hours, the hours of the ‘absent employee’ and other staff hours under the supervision of the claimant were correct and legitimate and has submitted a summary spreadsheet analysis of the claimant’s payslips for 2017. This summary spreadsheet analysis of the claimant’s payslips for 2017 confirm the following:

1. The claimant’s average working week was 32.46 hours, based on a fortnightly payroll.
2. The claimant never worked more than 85 hours in any given fortnight i.e. average 42.5 hours per week. (Note: The figures submitted by the claimant’s representative by email on the 26th September 2018 to the respondent and the W.R.C. indicate that between the period 02/03/2017 and 13/09/2017 the claimant worked an average working week of 54.6 hours). However, based on an analysis of payslips in 2017 the respondent alleges that the claimant worked an average working week of 32.46 hours, based on a fortnightly payroll and that he never worked more than 85 hours in any given fortnight (i.e.an average 42.5 hours per week).

CA-00016813-004 The Contract Cleaning E.R.O. (i.e. S.I. 548 of 2016) states as follows: ‘All employers will, on request or within two months of the commencement of employment, provide each employee with a written statement of the employee’s terms of employment in compliance with the Terms of Employment (Information) Act, 1994.’ With reference to same, the respondent notes that a contract of employment was provided and a signed copy of same was submitted in evidence. The respondent also points out that in the claimant’s submission it is verified that that a contract of employment was provided to him.

CA-00016813-005 With reference to the constructive dismissal allegation, page 9 of a document (i.e. an Employee Handbook type doc.) which was allegedly issued to all employees states as follows: ‘Where a dispute or a grievance arises between management and staff, the onus is on the staff member to present with a clear written detail of the grievance which management will aim to resolve ASAP. Failing to find resolution, the grievance will go to an outside impartial HR consultant who will meet with the staff member and aim to find a solution or compromise.’ However, it is alleged that at no point did the complainant raise any grievance with company management prior to his resignation in September 2017.

The background to his resignation was outlined by the respondent as follows:

• The claimant came to company management on 05/09/2017 and handed in his notice, stating that he wished to pursue another career in London in which he had invested substantial funds. This came as a shock to company management.
• The claimant only gave one weeks’ notice, which was in breach of his contract of employment.
• He then requested that his partner - who was employed by the company as a cleaner - take on his role as Operations Manager. The company’s response, after some consideration, was that she be given a 3-month trial as supervisor. The company went on to offer the claimant 1 month in which he could change his mind and return to his job. He neither accepted nor rejected this offer, leaving the respondent in a limbo situation.

The respondent submits that Section 8 of the Unfair Dismissal Act, 1977, as amended, provides for making complaints regarding unfair dismissal in contravention of Section 6 of that Act. However, the respondent contends that for a claim of constructive dismissal to be properly brought under the Act, the complainant must satisfy the definition in Section l(l)(b) of the Act, which defines ‘constructive dismissal’ as ‘the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer’. Related thereto, it is contended that the burden of proof in constructive dismissal lies with the complainant. For example, in Allen v Independent Newspapers (Ireland) Ltd. 2002 ELR 84) it was held that the onus is on the complainant to prove her/his case and to meet the test as to whether it was reasonable for her/him to terminate the contract. The respondent contends that the complainant has provided no evidence to prove his case or to show that it was it was reasonable for him to terminate his contract. The respondent also notes the endorsement of this precedent by the Labour Court (in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468) and by the UK Court of Appeal (in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713). The relevant 'contract' test sets down that: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.’ It is the respondent’s position that the complainant has provided no evidence to prove the company were ‘guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract’. The relevant ‘reasonableness’ test assesses the conduct of the employer and whether he/she ‘... conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.’ Furthermore, according to the Supreme Court (in Berber -v- Dunnes Stores [2009] E.L.R. 61): ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances. It is the respondent’s case that the claimant has provided no evidence to prove his ‘resignation was justified in all the circumstances’.

Hence, the respondent contends that legal authorities have made it clear in a series of decisions that the use of company procedures to address a grievance is a necessity. The claimant did not raise any grievance with the company nor did he access the company grievance procedure as referred to in the company code of practice.

CA-00016813-001 The respondent alleges that he/she never before saw the email dated July 19th, 2017 (from the complainant to the respondent), that lists staff ‘deep cleaning’ work hours. However, in the course of the hearing the A.O. searched the complainant’s email records and found the relevant email in his GMAIL account, prompting the employer’s response that the relevant email must have gone into ‘cyberspace’. However, whilst one can easily delete an email, it is not as easy to ‘invent’ an email for insertion into one’s ‘Sent’ folder. Notwithstanding same, the failure of the complainant to produce the ‘absent employee’ or another credible witness substantiating his allegations meant that his claim was (largely) based upon documentation he prepared, that was (allegedly) designed to sidestep legal obligations. Accordingly, it may be concluded that if he was underpaid, he was party to that arrangement and failed to produce any documentary evidence showing that he complained to the respondent about the fall-out therefrom. Notably, with regard to the suggestion that the respondent was complicit in this arrangement, this is a matter for the consideration of the Revenue Commissioners, who are allegedly liaising with the respondent on the matter.

CA-00016813-002 In line with the claim addressed above (i.e. CA-00016813-001), the failure of the complainant to produce the ‘absent employee’ or another credible witness substantiating his allegations meant that his claim was (largely) based upon documentation he prepared, that was (allegedly) designed to sidestep legal obligations. Notably, with regard to the suggestion that the respondent was complicit in this arrangement, this is a matter for the consideration of the Revenue Commissioners, who are allegedly liaising with the respondent on the matter.

CA-00016813-004 The apparent failure to provide a written statement of all appropriate terms and conditions of employment within 2 months of starting (as per the aforementioned E.R.O.) can be addressed as set out in Section 7 of the Terms of Employment (Information) Act, 1984 (as covered at Part III of S.I. No. 548) enabling an award up to 4 weeks’ remuneration by way of compensation.

CA-00016813-005 Both statute and common law substantiate the case for the use of company procedures to address a grievance. The claimant did not raise any grievance with the company, nor did he access the company grievance procedure as referred to in the company code of practice. The complainant failed to produce any documentary or other evidence showing that he complained to the respondent about the issues addressed at hearing.

CA-00016813-001 The claim is not well founded and is not upheld.

CA-00016813-002 The claim is not well founded and is not upheld.

CA-00016813-004 The claim is well founded and is upheld and a compensatory award of €1,696 to the claimant is made.

CA-00016813-005 The claim is not well founded and is not upheld.

Constructive dismissal       Hours of Work   Payment of Wages Contract Provision