Complainant

Respondent

Anonymised Parties

A cleaner

A Limited Company

Representatives

Nicola Dowling Williams Solicitors

Did not attend 

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-00035858-001

27/04/2020

The Respondent provides a contracted cleaning and security service to a wide variety of business clients.

The Complainant is a Mongolian national who was employed by the Respondent as a part-time employee within the meaning of Section 7(1) of the Protection of Employees (Part-Time Work) Act, 2001. She was initially employed by another agency to work as a part-time cleaner in the XX Building in Dublin.

Her contract of employment was subsequently transferred to the respondent pursuant to the provisions of S.I. 131/2003 European Communities (Protection of Employee’s on Transfer of Undertakings) Regulations 2003.

The Complainant’s substantive terms and conditions of employment were not affected by the said transfer and otherwise remained unchanged throughout her employment. i.e. from the commencement of her employment until March 2019, she worked the same twenty-five hours per week, in the same location.

On or about 28th February 2019, she attended a meeting with the respondent’s Contract Manager at which she was informed that the respondent proposed to make certain changes to her working arrangements.

By subsequent email to the complainant dated 1st March 2019, she set out the proposed changes as follows:

“Please be advised that in order to meet the client’s needs more efficiently, we need to change your position of work. I refer to our meeting on 28/02/2019, at the meeting the below offer of alternative work was offered to you.

YY 10am-3.30 pm (5hrs) which is the same time you are currently working.

The above position is offered with a 4 week notice period or an immediate start if this suit.

As you are aware, we are looking to make changes to current working hours from days to nights. A flexibility clause is included in your contract of employment and we are looking for employees to facilitate us in making the necessary changes to meet the needs of the client”

The complainant was surprised by the aforementioned meeting and correspondence in circumstances where she had worked the same twenty-five hours per week in the XX Building throughout the previous nine years of her employment.  

She was unaware of any recent developments which might have given rise to a change in the client’s needs, and by extension to a change in her working arrangements.

Furthermore, she was unaware of the existence of any alleged “flexibility clause” in her contract of employment.

The said contract presumably dates from the commencement of the complainant’s employment, i.e. it predates her transfer to the within named respondent. To date she has not been given that contract.

Upon receipt of the email, the complainant made enquiries of management in the XX office, who confirmed that the decision to change her working arrangements was a management decision made by the respondent, in which XX had no involvement.

Accordingly, while the respondent's email suggests that it was necessary to change the complainant working arrangements due to an alleged “need to meet the client’s needs more efficiently”, that need was not identified to her by XX, nor has it been evidenced in correspondence.

On 1st March 2019, MS emailed the respondent’s HR Business Partner NC in the following terms:

“ (Complainant) has changed her mind about accepting the job in YY and insists she is staying in XX. I explained that in 4 weeks’ time we will not have this position available. She said ‘I don’t care I am not leaving’ she is staying in XX regardless and I asked her if she can work evening and she said no.

The existing 2 day Janitors are going to take on this job during their working hours.”

Contrary to MS’s suggestion that the complainant had “changed her mind about accepting the job in YY, the reality was that she had not indicated her acceptance of that job as suggested or at all.

The position was, and remains, that the complainant did not accept that the respondent was entitled to make changes to her place and/or hours of work on a unilateral basis.   Insofar as the respondent may have been contractually entitled to change the complainant’s place and/or hours of work, she believed that it was fair and reasonable for her employer to explain why her working arrangements should be changed in preference to those of her full-time colleagues.

On the 5th March 2019, MS emailed the complainant the following terms:

“ I was sorry to hear you are no longer interested in the position that was available in YY. Please find attached the updated letter to confirm your decision.

From March 1st the changes across the campus have been implemented, and as discussed, the position in P.. will cease from 06/03/2019. We will accommodate your hours across campus until the 28th March.”

The complainant submitted a complaint to the Workplace Relations Commission under the Protection of Employees [Part-Time] Work Act 2001 in relation to her removal from her employment at the XX Offices.

That complaint was compromised under Terms of Settlement dated 7th August 2019.

In accordance with her obligations under the Terms of Settlement, the complainant withdrew her claims before the Workplace Relations Commission.

Unfortunately, the respondent failed to implement the Terms of Settlement in full.  

In so far as the respondent has partially complied with their obligations under the Terms of Settlement, the complainant was paid three weeks’ wages under Clause 2 of the agreement as a contribution to her legal costs.

The respondent failed to furnish the complainant with a statement of her Terms and Conditions of Employment within 30 days of execution of the agreement in accordance with Clause 1 of the Terms of Settlement. The complainant had not received any written statement of her Terms and Conditions of Employment with the respondent and in so far as she call recall, she did not receive a written statement of her terms and conditions of employment from its predecessor under the Transfer of Undertakings.   The respondent failed to re-engage her at her place of work in accordance with Clause 3 of the Terms of Settlement, being the XX Offices in Dublin between the hours of 10:00 and 15:00 Monday to Friday.

The complainant met with the respondent on the 6th September 2019 to discuss her return to work. The complainant was advised that she would not be returning to work at the XX offices and the respondent proceeded to refer to offers of alternative work.

The respondent failed to offer any explanation as to why they failed to re-engage her at the agreed place of work.  

It is acknowledged that the respondent did offer the complainant alternative place of work however, the location and hours did not suit the complainant and the only reason the complainant compromised her claims was because she was being restored to working at the XX offices, a hirer in respect of which she had provided cleaning services for 9 years.

By email dated the 7th November 2019, the respondent’s legal advisors indicated no further documentation or information would be forthcoming in relation to the employer’s failure to re-engage the complainant at the agreed place of work.

The complainant’s submitted a claim to the Workplace Relations Commission in respect of the pay due to her under the Terms of Settlement under Section 6 the Payment of Wages Act and a claim in respect of the failure to furnish her with a written statement of her terms and conditions of employment under Section 7 of the Terms of Employment and Information Act 1994 as amended.

The matter came before the Workplace Relations Commission on the 18th February 2020 and a determination issued on the 22nd April 2020 in the complainant’s favour. The Adjudicator awarded the following sums to be paid;

Four weeks pay in the amount of €1080 in respect of the failure to furnish the complainant with a written statement of her terms and conditions of employment;

The sum of €2970 for the pay due to her in respect of the period of time between the execution of the Terms of Settlement on the 7th August 2019 and the date of the complaint was lodged.

On the 25th April 2020, the within Complaint under the Payment of Wages Act was submitted to the Workplace Relations Commission in respect of the failure to remit payment to the complainant for the period 24th October 2019 to the 24th April 2020 being six month’s salary, calculated as follows;

€540 (fortnightly pay) x 13 = €7020

Notwithstanding the fact the complainant has not been re-engaged at the XX offices, her contractual entitlement to pay in the hourly rate for the hours agreed subsists.

There was no appearance for or on behalf of the Respondent. I am satisfied that the respondent was on notice of the date, time and venue of the within hearing

The complainant is alleging that the respondent was in breach of Section 5 of the Payment of Wages Act 1991 as amended in failing to discharge the obligation to pay the complainant’s wages due to her in respect of the period 25th October 2019 to the 25th April 2020. The amount due to the complainant is € 7020.00.

S5 of the Payment of Payment of Wages Act 1991states:

(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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.  

(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(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,

or

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941 , amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or  

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(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.  

It is clear that Section 5 outlaws all deductions and reductions except authorised deductions.

A deduction under the Act therefore occurs where the amount paid is less than that wage ‘properly payable to an employee’ Dunnes Stores (Cornelscourt) Limited -v- Lacey [2005] IEHC 417

The complainant’s agreed fortnightly renumeration is € 540. Due to an issue with the complainant’s place of work she has not been paid since the 25th October, 2019. Her claim was filed on the 27th April, 2020. Leaving any contractual argument in relation to her normal place of work aside, I note that in an agreement entered into between the complainant and the respondent dated the 7th August, 2019 wherein it was agreed that the complainant would be returned to her normal place of work at the XX building. I note from the within claim that the respondent is in breach of that term of the agreement.

In all of the circumstances I find that the respondent is in breach of Section 5 of the Act and accordingly I find that the complainant is well founded.

I award the complainant € 7020.00.

The complainant is well founded. I award the complainant € 7020.00