ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025715
Parties:
| Complainant | Respondent |
Anonymised Parties | Beauty Therapist | Beauty Salon |
Representatives | Self represented |
Complaints:
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-00032575-001 | 28/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00032575-002 | 28/11/2019 |
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. 131 of 2003) | CA-00032575-003 | 28/11/2019 |
Date of Adjudication Hearing: 25/08/2020
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act 1991 and Section 79 of the Employment Equality Acts, 1998 - 2015,and Regulation 10 of the European Communities(Protection of Employees on Transfer of Undertakings) Regulations 2003 S.I. 131 of 2003, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant’s employment was taken over by the Respondent in November 2019. The Respondent proposed to cut the Complainant’s wages without her agreement and required her to sign a new contract with lower rate of pay. |
Summary of Complainant’s Case:
The Complainant worked 3 days a week and was earning €335 per week, until the Respondent took over the business in or around 21st November 2019. The Respondent provided the Complainant with a new contract which would have the affect of reducing her wages from €16 per hour to €11 per hour and from 3 days to 2 days a week. The Complainant stated that she could not sign this contract as it reduced her pay. The Complainant stated that she was due to work on 23rd November 2019 and 27th November 2019, but the Respondent cancelled her work for those days, working herself on the 23rd November and cancelling the Complainant’s appointments on 27th November 2019. On Saturday 23rd November 2019, the Complainant asked the Respondent was she aware of employees’ rights during a transfer of business, to which the Respondent said “yes”. The Complainant told the Respondent that she had spoken to the Workplace Relations Commission who told her that reducing her wages was illegal. The Complainant asked the Respondent to get back to her but the Respondent did not reply to her message asking about work on the Wednesday 27th November 2019. The Complainant also states that she was discriminated against as another employee, Ms N had informed her that she was working without signing the contract. The Complainant also stated that she felt she was being bullied out of her employment. |
Summary of Respondent’s Case:
The Respondent stated that she had been asked at short notice to take over the business by the previous owner. She considered that €11 per hour was an appropriate rate. She stated that €16 per hour was “a bit rich”. She had not agreed any higher pay or managerial role for the Complainant. She had talked to staff individually on 14th November and gave them the rate and conditions. She handed the contracts to staff and received them back signed on 20th November 2019. |
Findings and Conclusions:
CA-00032575-001 - Payment of Wages Act 1991 The Act governs the circumstances in which employers may make deductions from the wages of employees. Section 5 provides:
|
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. |
Section 5 (6) provides:
(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. In this instant case, I note that the Complainant was rostered and due to work for a number of days specifically 23rd November and 27th November 2019. The Respondent unilaterally withdrew the hours due to be worked and I find that this constituted an illegal deduction of wages properly payable to the Complainant. I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €223.
CA-00032575-002 - Employment Equality Act 1998. |
The Employment Equality Acts 1998 – 2015 prohibit discrimination in employment on nine grounds i.e. on grounds of gender, marital status, family status, age, disability, sexual orientation, race, religion, and membership of the travelling community. For the purposes of the Act, civil status includes being single, married, separated, divorced, widowed, or in a civil partnership. In this instant case, the Complainant cited “Civil Status” as the ground of her complaint under the Act. She also stated that she was discriminated against by the Respondent by (a) cancelling her beauty therapy bookings and (b) by allowing others to work without signing their contracts of employment. In this case there are no valid grounds cited for the Complainant’s complaints that would permit the consideration of her complaints under any of the nine grounds in the Employment Equality Acts and I find her complaint to be not well founded.
CA-00032575-003 S.I. 131/2003 European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.
The Regulations provide for rights and responsibilities of transferors and transferees in relation to transfers of businesses or parts of businesses.
Regulation 4 provides:
“4, - (1) The transferor’s rights and obligations arising from a contract of employment existing on the date of transfer shall, by reason of such transfer, be transferred to the transferee.
Regulation 5 (3) provides;
“5 (3) If a contract of employment is terminated because the transfer involves a substantial change in working conditions to the detriment of the employee concerned, the employer concerned shall be regarded as having been responsible for the termination of the contract of employment”.
I note the evidence of the Complainant that she asked the Respondent if she was aware of employees’ rights during a transfer of business to which the Respondent replied that yes she was aware. I note that the complaint regarding alleged breach of the Transfer of Undertakings Regulations is contained in the narrative of the Complainant’s complaint and I am satisfied that the Respondent was therefore on notice that this was the core of the Complainant’s complaint. I am satisfied from the evidence that the Respondent was aware that the unilateral reduction of wages was not permissible under the Regulations. I note that the Respondent did not respond to texts or phone calls from the Complainant in or around 26th November 2019 and made no contact since with the Complainant. I find that by her actions, the Respondent denied the transfer of the rights and obligations due to the Complainant under the Regulations. I declare the Complainant’s complaint to be well founded and in accordance with Regulation 10 (5) I require the Respondent to pay to the complainant compensation in the sum of €5,000 which I consider just and equitable in the circumstances.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003) requires that I make a decision under that S.I.
CA-00032575-001 Payment of Wages Act 1991
The complaint is well founded and I require the Respondent to pay to the Complainant the sum of €223.
CA-00032575-002- Employment Equality Act 1998. The complainant is not well founded. CA-00032575-003 – European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003) The complaint is well founded and I require the Respondent to pay to the Complainant the sum of €5,000. |
Dated: 13th November 2020
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Payment of Wages, Transfer of Undertakings, Complaints well founded. |