Complainant

Respondent

Anonymised Parties

Administrative assistant

Recruitment Agency

Representatives

Self

Darren Whelan IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00028808-001

01/06/2019

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

CA-00028808-002

01/06/2019

The Complainant is an administrative assistant. She started working for the Respondent on the 19th of February 2018. Her employment ended on the 8th of March 2019.

The Complainant lodged her complaint on the 1st of June 2019.

CA-00028808-001

The Complainant submitted she had not received a written contract of employment.

The Complainant relied on verbal and written advices from the recruitment agency and the end user that she was at grade 3 at the top of the current end user’s pay scale. The Complainant took this to be €37,661.00.

CA-00028808-002

She received a pay increase (as did her colleagues) in October 2018 of 1%. At this stage she discovered that she was being paid at the twelfth point of the scale which was €34,537.00.

She queried this discrepancy but received not satisfactory response.   She was sent back and forth for clarification between her line manager at the recruitment agency and the end user as to what was her correct rate of pay. She had a meeting with her manager/end user. She submitted she was informed that she should “count herself lucky that she was receiving what she was”.

She also had a dispute in relation to how her holiday pay was calculated.

The Respondent raised a preliminary argument regarding time limits. It submitted that as the Complainant lodged her case on the 1st of June 2019, the cognisable period for the claim was the 2nd of December 2018 to the 1st of June 2019.

It relied on provision Section 41 (6) and Section 41(8) of the Workplace Relations Act 2015. It submitted that there was no reasonable cause on the Complainant’s part to extend the time limit.

It submitted that any alleged breaches from when her employment commenced in February 2018 were well outside the six- and twelve-month time period. It relied on the Labour Court decision of Cementation Skanska case of DWT0338.

CA-00028808-001

The Respondent submitted that the Complainant did receive her contract of employment. She was sent several documents by email and this led her to access via a platform which gave her access to her written contract, payroll etc.

As the Complainant was engaged in agency work the contract was supplemented by assignment details outlining her salary and place of work.

The Respondent submitted that the Complainant chose not to sign the contract.  

CA-00028808-002

The Respondent submitted that prior to commencing her assignment the Complainant was informed that the rate of pay was €17.77 per hour.

It submitted that the Complainant received all monies due to her.

It explained how in October 2018 the Complainant’s salary was increased to €19.57 per hour along will all other members of staff.

The Complainant was paid back pay in February 2019 the difference between €17.77 per hour and €19.57 per hour for hours worked between October 2018 and February 2019. This amounted to €693.76. It submitted that no further money was owing.

CA-00028808-001

I was furnished with an email which was addressed to the Complainant’s first name, but the email was not dated and seemed to have been generated from a systems platform. The Complainant denied that she received this email. She pointed out that this email was not in the data access request that she received from the Respondent prior to the hearing of this case.  

The Respondent is a very large recruitment agency and I was struck by the complexity of the different systems to access contract, data, upload your CV to create a personal matter. I accept that a lot of their documents are automated due to the volume of employees they have.

I accept that the Complainant received her contract by accessing their system. She may not have read it.

Section 3 of the Terms of Employment (Information) Act 1994 sets out that an employer shall give or cause to be given to the employee a statement in writing continuing the list of particulars as set out in the Act.   Section 3 (4) sets out that the statement furnished by an employer under sub section (1) shall be signed and dated by or on behalf of the employer. The copy of the statement of terms of employment set out in the Respondent’s booklet provided to me at the hearing was not signed or dated. No evidence was presented to me regarding the signing or dating of same.

On the basis of same I hold that there was a technical breach of the Terms of Employment (Information) Act 1994 and I award the Complainant under Section 7 of that Act compensation what I calculate to be one week’s wages which is €489.00 as I consider just and equitable having regard to all the circumstances.

CA-00028808-002

The email referred to at the start of these findings stated the Complainant’s rate of pay was at the top point of the salary grade 3 = €34,195.00. It stated that it was a thirty-seven-hour week at €17.77 per hour. There was a link in the email to submit the Complainant’s PPS and bank account details.

I was furnished with an email from the Respondent to the Complainant dated the 6th of November 2018 and the subject of the email was 1% increase.   It stated that her current rate of pay of €17.77 would increase to €19.57 with twenty-four days annual leave.   It stated the Respondent would organise a back payment dating back to the date effective of the 1st of October 2018.

This pay increase referred to more than just the 1% increase that was across the board. It included an increase of the 1% plus a further €1.62 per hour.

I was furnished with the Complainant’s payslip for period 7/2019.   The pay date was the 18th of February 2019. It referred to back pay. This was calculated at €693.76. The Respondent submitted that it covered 210 hours October to November and 169 hours December to the 15th of February 2019.  The Respondent was not able to give a written break down as to how the back pay paid for period 7/2109 with a pay date of the 18th of February 2019 gross pay was calculated.

At the hearing of the claim the figures quoted by the Respondent did not match exactly the figure listed in the payslip. I direct that the Respondent carry out further investigations as to how this calculation came about and set it out in better detail for the Complainant. The same applies for the holiday pay which was paid to her on the 10th of May 2019.

My experience is that a number of these type of complaints could be avoided if clearer communication between the parties and a better explanation as to how the calculations came about.

Having considered the evidence presented to me I am bound by the provisions of Section 41 (6) of the Workplace Relations Act 2015. The Complainant made an application to extend time under Section 41 (8) of the Act. She explained that she was engaging with her employer and the end user since the commencement of her employment as to her correct rate of pay.   The Complainant did not give any reason why she did not take advice or lodge a complaint earlier than the 1st of June 2019.

I find that the cognisable period for these claims is from the 2nd of December 2018 to the 1st of June 2019. The Complainant’s employment ended on the 8th of March 2019.

The Complainant on her own complaint form stated she worked twenty-five hours a week. This was disputed at the hearing. I reviewed the payslips furnished and most of them were in or around the twenty to twenty-five-unit mark.

Section 6 of the Payment of Wages Act 1991 sets out:

(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 deductions 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,

or

(b) if the amount of the deduction or payment is greater than the amount presented to paragraph (a), twice the former amount.

(2)

(a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment.

(b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment.]

I accept the Complainant’s case that there was an unlawful deduction from her wages properly payable to her. The difference between the two scales produced to me was a gross annual payment of €387.00. This according to my calculations yields an hourly difference in the rate of 0.29 cent.  

On the basis that the Complainant worked at twenty-five-hour week and the cognisable period was a fourteen-week period I calculate the deduction to the Complainant was 0.29 x 25 x14 = €104.19. I award this sum to the Complainant. This is taxable in the normal manner.  

I also award the Complainant compensation under Section 6 of the Payment of Wages Act being one week’s wages which is €489.00 for the series of errors she had to endure in her employment by the Respondent and the failure on the part of the Respondent to address her queries on her rate of pay in a clear and timely manner. On the basis of same I am not making any award in respect of the complaint on the calculation of holiday pay. This payment of €489.00 is compensation and not taxable.

CA-00028808-001

This claim is well founded. I award the Complainant compensation of €489.00

CA-00028808-002

This claim is well founded. I award the Complainant compensation of €489.00 and a gross payment of €104.19 for the deduction made by the Respondent.    

Unlawful deduction.   Compensation. Payment of Wages Act 1991