Complainant

Respondent

Parties

Arunas  Joksas

MCR Outsourcing Limited.

Representatives

Dave Curran SIPTU

 Did not attend hearing.

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-00041490-001

09/12/2020

The Complainant’s employment as a Security Officer transferred to the Respondent on 3rd January 2019, he had service with three other security providers prior to this transfer, this must all be considered continuous service.

Prior to hearing the facts of this complaint, I informed all present at the hearing of the developments in the case of Zalewski -v- An Adjudication Officer, the Workplace Relations Commission, Ireland and the Attorney General and that following delivery of the judgment of the Supreme Court in that case on 6 April 2021, hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised.

All present at the remote hearing agreed to proceed with the hearing of the complaint.

At the commencement of the hearing the representative of the Complainant drew my attention to the fact that the Respondent’s name on the complaint form was incorrect, this being due to inadvertence. Pursuant to section 39 of the Organisation of Working Time Act, 1997, as a relevant authority, I agreed to change the Respondent name to that shown above.

The case is taken under the Payment of Wages Act 1991.

The claim is that the employer has breached Section 5(1) of the above Act by not paying the Complainant his full weekly wages following a determination under the Protection of Employees (Transfer of Undertakings) Act.

Prior to a transfer of undertakings in January 2019, the claimants had an agreement with their employer that should their weekly working hours drop below 39, they would still be paid their fully weekly wage.

Upon his transfer to the Respondent in 2019 his transferee employer refused to honour this contractual term of their contract. Their hours were reduced to 32 hours per week, and their employer failed to pay them the additional 7 hours.

The claimant pursued a case under the Protection of Employees (Transfer of Undertakings) Act 2006.

The claim was upheld, and he was awarded compensation for breaches of the TUPE Regulations.

The employer (the Respondent) did not correct his pay following the WRC hearing and determination, and he is now seeking compensation for this period under the Payment of Wages Act, 1991.

Background

The Complainant was employed with Company A, based in a shopping centre in Drogheda. 

In 2018 they transferred to Company B.

While employed with Company B the claimant had an agreement with his employer to always pay him his full 39 hours per week in cases when his actual hours of work fell short of this.

In January 2019 his employment transferred to the Respondent.

Prior to the transfer in January 2019 SIPTU contacted the Respondent informing them of the agreement between the member and Company B in relation to the Complaint’s contracted hours.

However, following the transfer, the claimants’ hours of work were reduced from 39 to 32 per week, and he was paid 32 hours per week.

SIPTU attempted to resolve the issue through local discussions with the employer, however the company did not engage.

The matter was referred to the Workplace Relations Commission under the TUPE Regulations

The Complainant was awarded compensation for lost wages under this Act.

Furthermore, the WRC determination stated the following:

“I require that the employer pays the complainant for 39 hours per week from the date of the hearing going forward, in circumstances where fewer hours are available.”

SIPTU contacted the employer on a number of occasions following the determination seeking payment. The employer communicated to SIPTU that they would not willingly pay the sums awarded.

The Complainant was made redundant on July 17th, 2020.

SIPTU referred the cases to a solicitor for enforcement. In December 2020 the Complainant received payment of the figures stated in the WRC determination.

However, the employer never corrected the Complainant’s wages going forward, for the period between the WRC hearing on January 22nd, 2020 and the termination of his employment in July 2020.

The Complainant’s Case

The Complainant’s contract clearly state that his hours of work are 39 per week.

Furthermore, the previous employers have agreed to ensure they are paid 39 hours per week even on occasions where they are offered fewer hours than this.

By not paying the Complainant his contracted hours, nor offering him shifts to make up his hours, the Respondent have breached the contract with the Complainant.

The Adjudication Service of the Workplace Relations Commission heard the case under the Transfer of Undertakings Regulations on 22nd January

The Adjudicator determination stated the following:

“I require that the employer pays the complainant for 39 hours per week from the date of the hearing going forward, in circumstances where fewer hours are available.”

The employer has not yet paid the Complainant for this period.

Our position is that the WRC determination further establishes a contractual right for our member to be paid the full amount under the contract.

Therefore, this constitutes wages properly payable to them.

Conclusions

1.       We believe that our member has established that a term of his contract is that he should be paid his full 39 hours per week in circumstances where his hours of work fall short of this.

2.       In light of this we are seeking the following sums be awarded to our members under the Payment of Wages Act 1991:

We (SIPTU) are also seeking any additional compensation which the Adjudication Officer may consider fair and reasonable given the circumstances.

The Respondent did not attend the hearing of the complaint.

By letter dated 5th March 2021 and emailed to the Respondent the same day the Respondent was notified of the date and time of the hearing. By email dated 13th April 2021 the Respondent ‘s Operations Director informed the Workplace Relations Commission that they would not be in attendance at the hearing of the complaint.

The Complainant had a contract of employment that clearly stated that his working week was for 39 hours. Added to this was an agreement with his previous employers that should his weekly hours ever fall short of 39 hours he would be paid for 39 hours per week. This agreement was honoured by all previous employers and must be considered as part of the contract.

A term can be implied into a contract of employment by what is known as custom and practice. This arises where a custom or practice is so well known, clear and uninterrupted that it can be implied into a contract.

In Albion Automotive Ltd v Walker ([2002] EWCA Civ 946) the Court of Appeal (England and Wales Court of Appeal) listed the relevant factors as follows:

(a)    Whether the policy was drawn to the attention of the employees;

(b)    Whether it was followed without exception for a substantial period;

(c)     The number of occasions on which it was followed;

(d)    Whether payments were made automatically;

(e)    Whether the nature of communication of the policy supported the inference that the employer’s intended to be contractually bound;

(f)      Whether the policy was adopted by agreement;

(g)    Whether employees had a reasonable expectation that the enhanced payment would be made;

(h)    Whether terms were incorporated in a written agreement;

(i)      Whether the terms were consistently applied.

In the instant case there can be no doubt that the payment of 39 hours per week was implied into the Complainant’s contract. The Complainant’s representative produced wage slips from the previous employer that clearly show when adjustments had to be made.

Section 5(1) of the Act reads as follows:

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.

In the instant case I am satisfied that the Respondent has breached the Payment of Wages Act, 1991 by not paying the Complainant his contracted weekly wage that is properly payable to him.

The Complainant had submitted a complaint to 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). As part of his decision my fellow Adjudication Officer stated, “I require that the employer pays the complainant for 39 hours per week from the date of the hearing going forward, in circumstances where fewer hours are available.”

The Respondent did not appeal this decision, they totally disregarded it.

The complaint as presented under the Payment of Wages Act, 1991 is well founded.

I now order the Respondent to pay the Complainant a sum of €2,038.75.

This sum should be paid to the Complainant within 42 days from the date of this decision.

As outlined above.

Payment of Wages Act, 1991.