Complainant

Respondent

Anonymised Parties

An Employee

A Telemarketing company

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997

CA-00029791-001

20/07/2019

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

CA-00029791-003

20/07/2019

The complainant submitted complaints under Section 18A of the Organisation of Working Time Act, 1997 and under section 6 of the Payment of Wages Act, 1991 on the 20th of July 2019.   The complainant was employed by the respondent from the 26th of November 2018 and submitted her resignation on the 4th of July 2019.   I proceeded to a hearing of these matters on the 21st of October 2019 and both parties were in attendance at the hearing.

The complainant submits that

She was not placed on the appropriate band of hours and submits that her employer was obliged to provide a banded hours contract by 2nd of October 2018,

The complainant was employed from 26th of November 2018 to 18th of July 2019,

Prior to accepting an offer with the respondent, she stated what her desired work schedule would be, and was assured this would be adhered to,

Upon receiving her contract of employment, she noted the agreed upon salary- €20000/year. The contract did specify that she would be expected to work up to 37.5 hours. However, article 4 paragraph 1 of said contract also stated that should a mutual agreement be reached between the two parties, she would be expected to work the agreed number of hours,

an agreement was reached between the complainant and the recruitment representative Ms. C for a 28 hour week work schedule as follows: Monday 2-10pm Tuesday 2-6pm Wednesday- OFF Thursday 2-10pm Friday 2-10pm. This schedule was adhered to for the period of the complainant’s employment with the respondent,

a few days before receiving her wage payment in June, she received an email from the respondent stating that she had failed to report that she worked part- time hours, and had been paid for full time hours and so had been overpaid for the entire period of 6 months employment,

prior to commencing her employment, she agreed on a salary of €20.000/year, and the above-mentioned work schedule of 28 hours per week and considers that no overpayment occurred,

the respondent has now stated that the complainant must repay them over €4,000 due to the alleged overpayment.

The respondent submits that

The complainant was employed from 26th of November 2018 to 18th of July 2019 having resigned her employment on the 4th of July ,

The complainant claims that she was not placed on the correct banded hours under the provision 18A contained in Employment (Miscellaneous Provisions) Act 2018 which came into effect on the 4th of March 2019,

Section 18A provides that you must have at least 12 months service to be classified into one of the hour category bands. The complainant was employed from 26th of November 2018 to 18th of July 2019,

This act came into effect after the complainant commenced her employment and she worked a regular pattern of hours each week during her employment period of eight months.

“18A. (1) Where an employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours specified in the Table to this section.

(2) In accordance with subsection (1), where an employee believes that he or she is entitled to be placed in a band of weekly working hours, he or she shall inform the employer and request, in writing, to be so placed.

(3) The employee shall be placed by the employer in a band of weekly working hours from a date that is not greater than 4 weeks from the date the employee made the request under subsection (2).

…….. (8) Where an employee believes that his or her employer has failed to place the employee in a band of weekly working hours in accordance with subsection (3), having been requested to do so under subsection (2) or unreasonably refused a request to be placed on a band of weekly working hours, the employee may make a complaint in accordance with Part 4 of the Workplace Relations Act 2015  

(9) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a failure to comply with this section shall do one or more of the following, namely—

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

(b) where the decision is that the complaint was well founded, require the employer to comply with this section and place the employee on the appropriate band of hours.  

(10) Notwithstanding section 27(3)(c), a decision in accordance with subsection (9)(b) shall not order an employer to pay compensation to the employee for the employer’s failure to comply with this section.

…….(14) In this section ‘reference period’ means a period of 12 months after the commencement of employment with the employer and immediately before the employee makes a request under subsection (2), and a continuous period of employment with that employer occurring immediately before the commencement of section 18A shall be reckonable for the purposes of this section.

In accordance with this section an employee has a statutory entitlement to a banded hours contract where their contractual working hours over the previous 12 months do not reflect their actual working hours. If the employee requests such a contract, he/she must be given the banded hours contract save in certain circumstances as set out.

The complainant in this case was not employed for a 12-month period as her period of employment lasted eight months from 26th of November 2018 to 18th of July 2019.   In addition, both parties agree that the complainant worked a regular pattern of hours each week during her employment period of seven months. The complainant resigned her employment with the respondent on the 4th of July 2019 giving two weeks’ notice.

Accordingly based on the totality of the evidence adduced here I declare this claim to be not well-founded.

I declare this claim to be not well-founded.

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

CA-00029791-003

20/07/2019

The complainant submits that

she was employed from 26th of November 2018 to 18th of July 2019,

her employer has made an unlawful deduction from her wages on the 25th of June 2019,

the amount of the deduction was €704,

Prior to accepting an offer with the respondent, she stated what her desired work schedule would be, and was assured this would be adhered to,

Upon receiving her contract of employment, she noted the agreed upon salary- €20000/year. The contract did specify that she would be expected to work up to 37.5 hours. However, article 4 paragraph 1 of said contract also stated that should a mutual agreement be reached between the two parties, she would be expected to work the agreed number of hours,

an agreement was reached between the complainant and the recruitment representative Ms. C for a 28 hour week work schedule as follows: Monday 2-10pm Tuesday 2-6pm Wednesday- OFF Thursday 2-10pm Friday 2-10pm. This schedule was adhered to for the period of the complainant’s employment with the respondent,

a few days before receiving her wage payment in June, she received an email from the respondent stating that she had failed to report that she worked part- time hours, and had been paid for full time hours and so had been overpaid for the entire period of 6 months employment,

prior to commencing her employment, she agreed on a salary of €20.000/year, and the above-mentioned work schedule of 28 hours per week and considers that no overpayment occurred,

the respondent has now stated that the complainant must repay them over €4,000 due to the alleged overpayment.

The complainant resigned her employment on the 4th of July providing two weeks’ notice which she was unable to work due to stress.

The respondent submits that

It came to their attention on 16th of June 2019 that the complainant was being paid for a 37.5-hour week despite the fact that she had only worked 28 hours per week since the December 2018,

The yearly salary agreed was for €20,000 for a 37.5-hour week which the complainant signed as part of her contract and letter of offer on 20th of November 2018,

The respondent discovered in June 2019 that the complainant had been paid at the full-time rate of a €20,000 p.a. despite the fact that she had worked 28 hours per week and not 37.5 hours per week,

The respondent notified the complainant of this on the 17th of June 2019 and advised of its proposals to rectify the matter,

The respondent notified the complainant of the amount of the overpayment and proposed a repayment plan,

The respondent notified the complainant of her correct rate of pay and advised that she would be paid in line with her 28-hour week from now on,

The complainant disputed that she had been paid incorrectly and disputed that she had been overpaid,

The respondent did not deduct any money owed from the complainant on the stated date but sought to discuss a repayment plan with her in order that she could repay the overpayment,

The complainant resigned her position on the 4th of July 2019 and did not work her notice period.

Section 5 of the Payment of Wages Act 1991 states the following:

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.

………….

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

The respondent advised the hearing that the complainant had initially been employed on the basis of a 37.5-hour week on a salary of €20,000.   The respondent provided the hearing with a copy of the letter of offer sent to the complainant on the e 20th of November 2018 and a copy of her contract both of which set out that the salary is €20,000 for a 37.5 hour working week. The contract also states that the role is a full-time role. The complainant stated that she had worked a full week at the start of her employment as this was a training week but after this, she had agreed to work a 28-hour week as per an agreed schedule.     The complainant advised the hearing that she agreed this work schedule with the recruitment representative Ms. C.     She was a remote worker and so did not have to come in to an office on a daily basis.   The respondent does not dispute that the complainant worked the hours stated by her only that she was paid a full-time salary for those hours when she should not have been.   The respondent advised the hearing that it had in June 2019 discovered that the complainant had been paid the full-time salary while working a 28-hour week.  The respondent advised the hearing that it had initiated a discussion with the complainant about this matter on the 17th of June and advised her that she was on the wrong rate of pay for her hours and that she had been overpaid for the past few months. The complainant disputed this and at the hearing argued that she had been entitled to a salary of €20,000 per year despite the fact that she had only worked a 28-hour week.   The complainant at the hearing did not dispute that the letter of offer and the contract signed by her both stated that the salary of €20,000 was for a 37.5 hour working week.

The respondent advised the hearing that it was not credible that the complainant expected to be paid the same salary when she reduced her working hours to a 28 hour week and though it is not disputed that she was permitted to reduce her working hours what is in dispute is her assumption that she would still be paid the full time salary for these reduced hours.  

The respondent in advancing its case relies on Section 5(5) which states

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

The complainant has submitted that her employer has made an unlawful deduction from her wages on the 25th of June 2019 in the amount of €704.

The respondent advised the hearing that it had engaged in correspondence with the complainant on 17th of June 2019 in respect of the overpayment of her wages and had suggested a repayment schedule for the overpayment.   The respondent stated that the complainant did not agree to any repayment and disputed the fact of an overpayment and so no money was deducted by the respondent in respect of the overpayment at this point in time.  

The respondent stated that the complainant’s pay was however reduced in her next pay check as she had been moved to the correct pay rate for her hours of work and she was also placed on the same pay schedule and pay period as other part time workers which was different to the pay schedule and pay period for full time workers which she had previously been in receipt of.     The respondent advised the hearing that this was the reason for the reduction in her pay on the 25th of June 2019 but stated that no recoupment of the overpayment had taken place at this stage as none had been agreed with the complainant. The respondent added that it had at this stage assumed that the complainant would continue in their employment and that a repayment schedule would be agreed with her.

The respondent advised the hearing that the difference in pay was not an unlawful deduction as the amount claimed was not properly payable to the complainant.   The respondent advised the hearing that the difference in her payment on the 25th of June 2019 was due to the fact that she was now on the correct pay rate and pay period for a 28 hour working week and was paid all wages due to her for the hours worked in that pay period in accordance with the new rate of pay and pay period for part time workers.   The respondent added that the complainant had been on notice of this fact and had engaged in email discussions with the respondent before her salary was rectified to reflect her actual hours of work and part time position.  The complainant at the hearing acknowledged that she had been notified of this in advance.    The respondent told the hearing that it has to date been unable to recoup the entire overpayment from the complainant due to the fact that she resigned her employment on 4th of July 2019 giving two weeks’ notice which she did not work.   The complainant stated that she was unable to work her two week notice period as this incident caused her a huge amount of stress as she felt that her good character was being called into question by the respondent when she had done nothing wrong. The complainant stated that she was unable to work her notice period due to this stress.  

Having regard to the totality of the evidence adduced in relation to this matter and given all of the circumstances of this case I find that the reduction in the complainant’s wages on the 25th of June 2019 does not amount to an unlawful deduction within the meaning of Section 5 of the Act. Accordingly, I find that the complaint is not well founded.

I declare that this complaint is not well founded.