ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00025402

Parties:

	Complainant	Respondent
Anonymised Parties	A customer assistant	A retail chain

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00032243-001	11/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00032243-002	11/11/2019

Date of Adjudication Hearing: 04/02/2020

Workplace Relations Commission Adjudication Officer: Jim Dolan

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 commenced employment with the Respondent on 23rd February 2019, she was employed as a Customer Assistant working between 20 to 25 hours per week at a rate of €10.65 per hour.

Complaints were received by the Workplace Relations Commission on 21st May 2019, 28th June 2019, 2nd September 2019 and 11th November 2019.

Complaints received on 11th November 2019 were registered as ADJ – 00025402 and included complaints, CA – 00032243 – 001 and CA – 00032243 – 002.

Summary of Complainant’s Case:

The complainant was advised that she would be paid during her maternity leave. If she had not been dismissed while pregnant, this is a benefit which she would have received. This is now a loss that she will incur during the course of her maternity leave which is due to commence in or around 6th August 2019. This claim will be issued either before the WRC or the Courts.

The Complainant is seeking payment for the October public holiday, as well as any public holidays which would have occurred had the Complainant stayed employed with the Respondent and commenced maternity leave.

Summary of Respondent’s Case:

In relation to CA-00032243-001, the Complainant is seeking payment for the October public holiday, as well as any public holidays which would have occurred had the Complainant stayed employed with the Respondent and commenced maternity leave. As the Complainants employment ended long before “the week ending of the day before a public holiday” the Complainant does not have any entitlement to payment for any public holidays. This claim is also covered under CA-0030727-001 and is a dual claim.

Claim under the Payment of Wages Act: CA-32243-002

The Respondent refutes the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred in line with the renumeration stated in the Complainant’s contract. At no point has the Complainant received a salary below her contractual salary. In making this statement the Respondent is considering not only the Complainant’s clear written contract of employment, but also the operation of this contract in reality and the established norms of the Respondent more generally.

The Complainant is arguing that the Respondent has not paid her or has paid her less than the amount due. The Payment of Wages Act, 1991, under section 5(6) states:

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.

Thus, the important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment. No deduction as defined in Section 5 of the Act has been made. Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard.

Any deduction made to the Complainant’s salary were made in accordance with Section 5 of the Act, namely deductions required by virtue of statute, and are awful deductions.

The Complainant is seeking top up for maternity pay, for which she has no entitlement to, whether that be legislative, contractual or otherwise. The Complainant was provided with a copy of the probationary policy upon commencement of her employment which outlines: “There are a number of benefits that are unavailable to probationary colleagues. You should refer to the individual policies which set out the service requirement for staff benefits. As a quick summary here is an example of some of the benefits that are not available to colleagues in their probation: sick pay, pension, SAYE, Paid Maternity Benefit.” This probation policy was signed by the Complainant and was outlined to her by management upon her commencement of the role.

There is no clause in the Complainant’s contract that would provide her with an entitlement to paid maternity top up. No Customer Assistant colleague in the Respondent company receives such a payment and the Respondent cannot fathom why this would form part of any claim.

The Complainant’s contract outlines that “A probationary period of 13 weeks will apply from the commencement of your employment”. As noted, the Complainants performance was not up to standard and her contract was terminated prior to the end of the 13-week probation period.

Even if the Complainant was still employed at the time of her maternity leave, there was no entitlement for the Complainant to receive a top up payment while on maternity leave, as this benefit is not provided for in her contract of employment or applied to any Customer Assistant in the Respondent’s business. The Complainant was aware of this, and had signed and accepted the handbook, the probationary policy, the maternity policy and the contract of employment.

The Labour Court case of St Patricks Mental Health Services v Asma Ayyaz supports this argument, as it found that “The employment policies operated by St Patricks Mental Health Services were set out in writing to the Complainant. She signed and accepted employment in accordance with those policies. They make no provision to pay the Complainant for any period of time after the contract expires. It makes no exception for maternity leave. Accordingly, the Court can find no grounds on which it can decide that the monies claimed by the Complainant were properly payable under the contract of employment she entered into with St Patricks Mental Health Services.”

Findings and Conclusions:

CA – 00032243 – 001– complaint submitted under section 27 of the Organisation of Working Time Act, 1997.

In relation to CA-00032243-001, the Complainant is seeking payment for the October public holiday, as well as any public holidays which would have occurred had the Complainant stayed employed with the Respondent and commenced maternity leave. As the Complainants employment ended long before “the week ending of the day before a public holiday” the Complainant does not have any entitlement to payment for any public holidays. This claim is also covered under CA-0030727-001 and is a dual claim.

This complaint is not well founded.

CA – 00032243 – 002 complaint submitted under section 6 of the Payment of Wages Act, 1991.

Even if the Complainant was still employed at the time of her maternity leave, there was no entitlement for the Complainant to receive a top up payment while on maternity leave, as this benefit is not provided for in her contract of employment or applied to any Customer Assistant in the Respondent’s business. The Complainant was aware of this, and had signed and accepted the probationary policy, the maternity policy and the contract of employment.

This complaint 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.

The complaints as presented are not well founded.

Dated: 20-05-2020

Workplace Relations Commission Adjudication Officer: Jim Dolan

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