Complainant

Respondent

Anonymised Parties

{A Cleaner}

{A Services Company}

Representatives

none 

John Barry Management Support Services (Ireland) Ltd

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-00018949-001

04/05/2018

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

CA-00018949-002

04/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00018949-003

04/05/2018

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

CA-00018949-004

04/05/2018

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-00018949-005

04/05/2018

The Complainant is employed with as a cleaner since 1st December 2001.

CA-0018949-001

The Complainant complains the Respondent has selectively implemented Employment Regulation (Amendment) Order (Contract Cleaning Joint Labour Committee) 2016 statutory instrument 548 on the site she is employed. The statutory instrument is on implementation until 1st December 2018 and the six month time-limit for lodging a complaint to the Workplace Relations Commission should not apply.

An appeal letter was lodged by a number of employees on the site to the Respondent relying on SI 548 2016 and the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 SI 131/2003 and the Complainant was one of the signatories.

The employees sought a salary increase based on the Employment Regulation Order of .30 euro per hour starting on 1st December 2016, .35 euros per hour December 2017, .40 euros per hour for December 2018.

This is based on a memorandum from the former service company who employed the staff dated 1st September 2004 which confirms the joint labour committee increase in the base rate of 3% was applied in March and retains the Respondent staff above the statutory minimum. The Complainant is one of the employees of the former service company who transferred to the Respondent. They also seek a wage increase as there has been no increase for 10 years, and this be implemented with retroactive effect from 1st December 2016 for all staff including new hires.

The Complainant seeks payment of €1,342.00 pursuant to S6 of the Payment of Wages Act 1991 from 10th July 2017 and says her employer has made an unlawful deduction from her wages.

CA-0018949-002

The Complainant complains the Respondent has selectively implemented Employment Regulation (Amendment) Order (Contract Cleaning Joint Labour Committee) 2016 statutory instrument 548 on the site she is employed. The ERO has only been implemented on site to newly hired employees. No correspondence has been received from management to staff on the issue. This has been requested verbally by staff to supervisors since 2016. The staff received a memo from HR dated 10th January 2017 stating the increase applied to all staff on a €9.75 hourly rate of pay who were increased to €10.05. The Respondent did not apply the increase to all other employees. The staff sought the increase by letter of 3rd July 2017 and notified the Respondent they would lodge complaints to the Workplace Relations Commission.

The Complainant complains of a breach of S45A of the Industrial Relations Act 1946 and that she has not received the minimum rates of pay in the ERO.

CA-0018949-003

The Complainant says she is being discriminated against by the Respondent on the grounds of age in her conditions of employment in the application of ERO 2016 SI 548 by the Respondent which she claims is indirectly discriminating against staff based on their years of service. The most recent date of discrimination is 10th July 2017.

The ERO has only been implemented on site to newly hired employees. No correspondence has been received from management to staff on the issue. This has been requested verbally by staff to supervisors since 2016. The staff received a memo from HR dated 10th January 2017 stating the increase applied to all staff on a €9.75 hourly rate of pay who were increased to €10.05. The Respondent did not apply the increase to all other employees. The staff sought the increase by letter of 3rd July 2017 and notified the Respondent they would lodge complaints to the Workplace Relations Commission.

CA-0018949-004

The Complainant seeks payment of €1,342.00 pursuant to S6 of the Payment of Wages Act 1991 and says her employer has not paid her or has paid less than the amount which was due on 1st December 2015.

The ERO has only been implemented on site to newly hired employees. No correspondence has been received from management to staff on the issue. This has been requested verbally by staff to supervisors since 2016. The staff received a memo from HR dated 10th January 2017 stating the increase applied to all staff on a €9.75 hourly rate of pay who were increased to €10.05. The Respondent did not apply the increase to all other employees. The staff sought the increase by letter of 3rd July 2017 and notified the Respondent they would lodge complaints to the Workplace Relations Commission.

CA-0018949-005

The Complainant complains of a breach of Regulation 10 of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 SI 131/2000 and seeks to invoke her rights under S6 of TUPE regulation 2003 that all the rights and obligations of an employer under a contract of employment (including terms inserted by collective agreements) other than pension rights existing on the date of transfer are transferred to the new employer on the transfer of the business or part thereof and seeks an increase be implemented with retroactive effect from 1st December 2016.

CA-0018949-001

The Respondent says the Complainant commenced employment with the former services company on 10th December 2001 and was transferred to the Respondents employment under the TUPE regulations on an hourly rate of €11.48 in 2010. The JLC rate of pay at the time was €9.50 per hour.

In 2011 the JLC was declared unconstitutional in 2011 and rates of pay were set by individual employers. In 2015 a new JLC was established.

The Respondent says due diligence documentation at date of transfer confirmed that staff were in receipt of site based rate of pay and no staff were on the JLC rate of pay. There was no indication that the rate of pay was linked to the JLC which was in existence at the time of transfer.

The Respondent says there is no relativity with the JLC between the rate of pay defined by the JLC and the Complainant’s rate of pay. The Respondent is of the view the Complainant is not entitled to any increase based on an increase in the statutory minimum rate of pay. There are no employees on the minimum rate of pay on the site, and the Complainant is trying to make a link to rates of pay on other sites. Where the minimum rate statutory rate of pay is increased this does not create a basis for a claim that all rates of pay in excess should be increased unless this is agreed.

The Complainant’s rate of pay is already well above industry rate and an increase would place of the cost of operating the site out of control of the company.

Claim 001 & 004

The Complainant says the deduction was made on 1st December 2017.

S41 of the Workplace Relations Act 2015, the Complainant had 6 months in which to lodge a claim so this applies back to 5 November 2017. The Complainant is also claiming there is a liability going back to 1st December 2016 in claim 001 and October 2015 in claim 004.

The Respondent says there is no provision for an Adjudication Officer to investigate a period before the stated date of contravention as it is within the 6 months time-limit. The JLC introduced a minimum rate in October 2015 well before 1st December 2016, which shows there was no expectation of an automatic increase in pay.

The Respondent says as there is no entitlement or agreement to link the Complainant’s rate of pay to the JLC there can be no deduction by an employer. The Respondent relies on the High Court HSE v McDermott [2014] IEHC 331 and submits the claim is out of time under S 6 (4) of the Act as the manner in which the claim was framed does not limit the period of time.

Industrial Relations Act claim CA-0018949-002

The Respondent says it is not permissible to pursue claims under the Payment of Wages Act 1991 and the Industrial Relations Act 1946. Without prejudice to the foregoing, the claim relates to the implementation of the JLC pay increases. The JLC sets only the minimum rate of pay and the Complainant is on a rate significantly in excess of the JLC rate, there is no basis for any further increase based on the increase of the minimum rate.

The Complainant is on a significantly higher rate than the JLC rate and the company does not have the resources to increase pay for the Complainant which would be a basis for numerous other claims.

Employment Equality Act claim CA-0018949-003

The Complainant claims she is being discriminated against on the grounds of age in relation to her terms and conditions of employment.

The Respondent says the Complainants claim of discrimination based on age (years of service) does not necessarily amount to age discrimination. S 6 (1) provides discrimination occurs where one person is treated less favourably than another is, has been or would be treated and that they are of different ages.

The Complainant is trying to substitute service for age which is not contemplated by the Act. No comparator has been identified who was on the same rate of pay and is being treated more favourably.

The Respondent says the Complainant has failed to establish a prima facie case and her complaint must fail.

European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 CA-0018949-005

The Complainant claims there is a breach of the Regulations when she was transferred to the Respondent. The transfer took place in 2010 and she was paid €11.48 per hour. The JLC rate was €9.50 per hour.

The new JLC was established and the rate was set in October 2015 of €9.75 per hour. The Complainant’s rate of pay remained the same. If the Complainant was correct that she was entitled to an increase then the date of breach is October 2015, which is in excess of the 6 months allowed to make a claim.

The Respondent says the decision of the High Court in HSE v McDermott [2014] IEHC 331 cannot apply as it is specific to Payment of Wages cases and it is not transferable.

Even if the decision is applied the claim must still be out of time. The case is framed in a manner which would make it out of time. The claim must fail as any agreement that may have been in existence at the time of transfer ceased at the time the JLC was declared unconstitutional.

S4(2) of SI 131/2003 provides that the transferee shall continue to observe terms and conditions agreed in any collective agreement on the same terms applicable to the transferor until the date of termination or expiry of the collective agreement or the application of another collective agreement.

Any agreement that transferred expired when the JLC was declared unconstitutional. The claim is out of time.

I have heard and considered carefully the written and oral submissions of the parties.

CA-0018949-001

The Complainant who is part of a group of 5 employees of the Respondent complains of an unlawful deduction of €1,342.00 from her wages on 10th July 2017 pursuant to S6 of the Payment of Wages Act 1991.

Evidence was given at the hearing by a witness for the Complainant employed at the site since 2001. Staff transferred to the Respondent from a previous service provider around 2009/2010. The Complainant relies on a memo furnished by the previous service provider which says increases from Employment Regulation Orders increase base pay for staff, the employees are seeking this from the company since 2016. The Respondent expects more from its experienced staff who teach new staff. Existing staff have not received a pay rise in line with the Employment Regulation Order of 2015 and SI 548 of 2016. Newly hired staff have received pay rises in line with the ERO.

The Respondent says there is no collective agreement, and there is no indication that the rate of pay is linked to the JLC. Staff pay was not reduced by the client during the downturn. The joint labour committee rate is well below the 5 staff current rate of pay.

The Complainant’s complaint form was received by the Workplace Relations Commission on 4th May 2018.

S41 (6) of the Workplace Relations Act 2015 provides an Adjudication Officer shall not entertain a complaint if it has been presented after the expiration of 6 months beginning on the date of contravention to which the complaint relates. The High Court in HSE v McDermott [2014] 331 IEHC outlines the statutory interpretation of the time-limit applicable which relates to the date of contravention to which the complaint relates. Each instance of failure to pay monies owed weekly or monthly is a further breach. The date of contravention to which this complaint relates is 10th July 2017. The date on which the complaint was received by the Workplace Relations Commission is 4th May 2018 which is outside of the required statutory period of 6 months under the Payment of Wages Act 1991 from the date of contravention. S41 of the Workplace Relations Act 2015 provides the statutory period of 6 months can be extended to 12 months where there is reasonable cause.

The Complainant is not legally represented. A number of staff (including the Complainant) lodged a grievance with their employer in July 2017 seeking monies due, this was refused in January 2018.

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

Normally, ignorance of the person’s legal rights, as opposed to the facts giving rise to the complaint cannot provide a justifiable excuse for the failure to bring the complaint within time. There was a delay of 3 months by the Complainant in lodging her complaint which deals with a number of contractual issues. This is not unreasonable in the circumstances. I find there is reasonable cause to extend time.

The Complainant has provided evidence in writing from payroll from 2004 confirming application of the Employment Regulation Order to the base rate of staff, increasing this in line with the increase in the minimum statutory rate which I accept. The increase set out in S.I. 548/2016 Employment Regulation (Amendment) Order (Contract Cleaning Joint Labour Committee) 2016 was not applied to the Complainant’s wages from 10th July 2017 to 4th May 2018 and accordingly there has been an unlawful deduction by the Respondent pursuant to S5 of the Payment of Wages Act 1991.

The complaint is well founded. I direct payment of arrears of wages at an additional .30 euro per hour from 10th July 2017 of €12 euro for 43 weeks of €516, and an additional .35 euro per hour from 1st December 2017 to 4th May 2018 of €8.05 per week for 23 weeks of €185.15 by the Respondent to the Complainant.

CA-0018950-002

The Complainant claims a breach of the Employment Regulation Orders S I 418/2015 and SI 548/2016 which sets the hourly rate payable to cleaners at €9.75 per hour. The Complainant is paid well in excess of the statutory rate. There is no breach. The complaint is not well founded.

CA-0018950-003

The Complainant alleges she is being discriminated against by the Respondent on the grounds of age specifically length of service in relation to her conditions of employment. The last act of discrimination took place on 10th July 2017.

I have already found in CA-0018950-001 there is reasonable cause to extend time to allow the Complainant’s complaint to proceed.

The burden of proof is set out in Section 85A(1) of the 1998-2015 Acts which provides that:

“Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

S6 of the Employment Equality Acts 1998-2015 states that discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the discriminatory grounds which exists, existed but no longer exists, may exist in the future or is imputed to the person concerned.

Evidence has been given on behalf of the Complainant that new hires of the Respondent are paid the Employment Regulation Order SI 548/2016 rate of €9.75 per hour from the date of their recruitment. The Complainant alleges discrimination as she did not receive an increase in her base rate of pay which is in already in excess of €9.75 because of her longer length of service with the company.

No evidence has been adduced of a difference in age between the Complainant and a new hire as comparator and less favourable treatment. Evidence has been given by the Respondent that new hires are on a lower starting salary than the Complainant.

The European Court of Justice in Horgan & Keegan v Minister for Education & Skills and others C-154/18 considered whether lower starting salaries of teachers applied since 2011 were indirectly discriminatory on the grounds of age and found:

“… that criterion, which renders the application of the new rules dependant exclusively on the date of recruitment as an objective and neutral factor, is manifestly unconnected to any taking into account of the age of the persons recruited ….

… the answer … is that Article 2(2)(b) of Directive 2000/78 must be interpreted to the effect that a measure such as that at issue in the main proceedings which, as of a specific date, provides for the application on the recruitment of new teachers of a salary scale and classification on that scale which are less advantageous than that applied, under the rules previous to that measure, to teachers recruited before that date does not constitute indirect discrimination on the grounds of age within the meaning of that provision.”

No prima facie case of discrimination has been made and the complaint fails.

CA-0018950-004

The Complainant seeks payment of €1,342.00 pursuant to S6 of the Payment of Wages Act 1991 and says her employer has not paid her or has paid less than the amount which was due on 1st December 2015.

I have outlined my jurisdiction under s41 of the Workplace Relations Act 2015 above in CA-0018950-001. The complaint form was received by the Workplace Relations Commission on 4th May 2018. This complaint relates to monies which the Complainant says is due since 2015. The complaint is not well founded and is statute-barred.

European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 CA-0018950-005

The Complainant complains of a breach of Regulation 10 of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 SI 131/2000 and seeks to invoke her rights under S6 of TUPE regulation 2003 that all the rights and obligations of an employer under a contract of employment (including terms inserted by collective agreements) other than pension rights existing on the date of transfer are transferred to the new employer on the transfer of the business or part thereof and seeks an increase be implemented with retroactive effect from 1st December 2016.

Evidence has been given on behalf of the Complainant that the transfer took place in 2009/2010. The Respondent says the transfer took place in 2010.

I have outlined my jurisdiction under S41 of the Workplace Relations Act 2015 above in CA-0018950-001. The complaint form was received by the Workplace Relations Commission on 4th May 2018. This complaint relates to a transfer which occurred in 2010. The complaint is not well founded and is statute-barred.

CA-0018950-001

The complaint is well founded. I direct payment of arrears of wages at an additional .30 euro per hour from 10th July 2017 of €12 euro for 43 weeks of €516, and an additional .35 euro per hour from 1st December 2017 to 4th May 2018 of €8.05 per week for 23 weeks of €185.15 by the Respondent to the Complainant.

CA-0018950-002

This complaint is not well founded.

CA-0018950-003

No prima facie case of discrimination has been made and the complaint fails.

CA-0018950-004

The complaint is not well founded and is statute-barred.

CA-0018950-005

The complaint is not well founded and is statute-barred.

Extension of time, reasonable cause, indirect discrimination age ground, TUPE