Complainant

Respondent

Anonymised Parties

A Cleaner

A Contract Cleaning company

Act

Complaint Reference No.

Date of Receipt

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

CA-00036256-002

12/05/2020

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

CA-00036256-003

12/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00036256-004

12/05/2020

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

CA-00036256-005

12/05/2020

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. No. 131 of 2003)

CA-00036256-006

12/05/2020

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. No. 131 of 2003)

CA-00036256-007

12/05/2020

The complainant commenced her employment with the respondent on April 1st, 2020 following a transfer of undertakings.

The complainant says that she is owed wages and that the respondent failed to provide her with statutory information about her terms of employment.

She says that she was told in the course of a conversation on her first day that the hourly rate was €10.80 per hour when according to the TUPE information €11.40 per hour had been stated as the rate.

She believes relevant information was not passed on to the correct person following the transfer.

She was then paid €10.80 per hour for first few payments until she questioned it and pointed out that it was supposed be €11.40 per hour.

She was not offered a contract and says the respondent should have provided her with their own contract.  When asked for a copy of her previous contract she refused to provide it because of GDPR and data protection issues, or without the permission of the transferor as these were private and confidential documents.

She also had to ask for a pay slip. This should not have been a problem as wages’ staff were all working on line and when wages were being made up this could have been provided.

She does not accept the excuse that her manager could not meet her because of the lockdown being in place. All essential company employees were allowed to travel during the lockdown restrictions and that is not an excuse.  

Other methods of online communication were available during the lockdown.

About the wages, TWSS payment and being over paid the email she received from the respondent did not refer to TWSS payment being received. Nor was she informed beforehand about the fact that she would be receiving only 70%-85% of the wage

All this was said only after she inquired why she was receiving less wages.

The issues over pay slip and communications were resolved only after a complaint was lodged in the WRC.

Regarding the complaint about not getting a pay slips the complainant transferred to the respondent  during the Covid-19 lockdown and she was not included in the Revenue payment scheme.

This has been an issue for all employees who transferred under TUPE at that time as they had to have been working for the company in March to be included.

While efforts were being made to sort this out the complainant was paid her wage directly into her bank account. There was some mix up initially with her rate per hour as it was not a standard rate of €10.80 but this was corrected;

The complainant has now received all her pay slips, this took longer than usual as payroll was being completed outside of the office during the lockdown period.

Pay slips were submitted in evidence. 

Secondly, the complainant has been paid all wages due to her.

The complainant is now receiving 85% of her wages.  This should be the COVID 19 subsidy as the office she is working in is on reduced hours and is closed except for one day a week.

However, Revenue still has not agreed to pay the Covid-19 employer subsidy in respect of the complainant as she was not working for the respondent at the qualifying date in March. So, the respondent has covered the full cost of this to date.

A summary of wages paid to date was submitted 

Regarding various complaints about non-compliance with the Terms of Employment information legislation requirements, in particular that she did not receive a statement in writing of her terms of employment, she received an email from the respondent HR office confirming her terms and conditions on Thursday the 2nd of April and this addresses all complaints under this heading.

The public health lockdown prevented a meeting with the complainant to issue this in person. Also, as the complainant transferred to the respondent under TUPE regulations her terms and conditions remained the same as they previously had been under the transferor. 

The same applies in respect of her complaint that she did not receive the terms and conditions as laid down by an Employment Regulation Order.

See above and also email submitted in evidence confirming terms and conditions sent 2nd of April.

The respondent has since requested a copy of the complainant’s original contract direct from her but she has refused to provide it.

She has also been requested to sign a copy of a contract of employment but she has refused to do so.

Regarding her complaints under the TUPE Regulations all terms and conditions known to the respondent at the time of the transfer have been observed and applied, unless there were terms and conditions not communicated by the transferor.

The respondent has accepted that the complainant was underpaid due to an error about her correct rate of pay on transferring from her previous employment.

This was not disputed at the hearing and this matter was resolved very soon afterwards.

This is the episode also grounding the complaints under the Transfer of Undertakings Regulations and therefore nothing remains outstanding in that regard; any breach was an error and corrected at the earliest opportunity.

While it should have been provided as part of the transfer discussions the refusal of the complainant to provide a copy of her own contract of employment did not help. There is no reason why she should not have done so.

There were other issues raised by the complainant about her earnings but these were issues that arose from a reduction of the work available to her on the contract to which she was assigned, and her possible transfer to another location when the work in her normal pace of work became unavailable as the building was closed.

There was nothing there to ground a complaint under any of the statutes referred to as this had its roots in pandemic related issue. They were not related to the transfer.

I find that she was advised by her manager on April 2nd, a day after the transfer, that her terms of employment would remain the same. I accept that the face to face meeting the respondent said it would normally have with a new employee could not happen because of public health restrictions related to the pandemic. But in any event there is n requirement on the employer to hold a face t face meeting, although it ay be desirable to do so.

The Terms of Employment (Information) Act 1994 requires an employer ‘not later than two months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the certain g particulars of the terms of the employee's employment’.

It proceeds to define them.

In addition, the Employment (Miscellaneous Provisions) Act 2018 has added the requirement to give a statement of a number of core terms of the employment much earlier; within five days.

Is an employee transferring under TUPE regulations ‘commencing’ employment, and therefore entitled to the statements under these two pieces of legislation?

In my view they are not. The entire thrust of the transfer regulations is to ensure a seamless transfer and continuity of employment by operation of law.

The employee acquires a new employer, but has not, in any legal sense ‘commenced’ employment. A transferring employee continues to enjoy the benefits of previous service and continuity of employment.

Where details have changed, and one obvious one will generally be the name and address of the employer, there is an obligation to amend details and the respondent in this case should have done so.

Section 5 of the Act states;

 Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

This was not part of the complainant’s specific complaint but in general it might be regarded as best practice to re-issue the Statement, even if in every respect, other than the employer name and address, it is identical to the previous statement.

In respect of that detail only a complaint could be well-founded, except the complainant did not make such a complaint. He complaint was very specific that she received ‘no statement’ and this is not correct.

There is a power contained in Section 7(2) (c) of the Terms of Employment Information Act to direct a respondent to issue the statement to the complainant noting this and any relevant changes within two weeks of the date of this decision. However, as the complainant has ceased her employment with the with the respondent it would not make any sense to do so.

In summary, the complaints under the Payment of Wages Act and the TUPE (CA-00036256-002, 006 and 007) all relate to the temporary reduction in her wages.

While there was a technical breach of the relevant provisions, I find that it was an error that resulted in an insignificant detriment to the complainant and was remedied quickly. Therefore, I do not find the complaints to be well founded.

In respect of complaints CA-00036256-003, 004 and 005, and as already noted the complainant’s case was that she was given no statement.

I have found above that she was not in the position of a ‘new’ employee as envisaged by the relevant Acts but I do find that the statutory statement should have been amended to take account of any changes in the detail specified in the Acts (for example, employer’s name, address).

However, again this is a very minor breach and, having regard to what is fair and equitable no sanction arises, especially noting that the complainant made no such specific complaint.

For the reasons set out above I find complaints CA-00036256-002, 003, 004, 005, 006 and 007 not to be well founded.

Payment of Wages, Terms of Employment, TUPE,