ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028061
Parties:
| Complainant | Respondent |
Anonymised Parties | Warehouse General Operative | Logistics Provider |
Representatives | none | none |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00035886-001 | 28/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00035886-002
| 29/01/2021
|
Date of Adjudication Hearing: 29/01/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a complaint of a contravention of regulations specified in the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012.
Background:
The Complainant is seeking payment of an allowance he believes he is entitled to. The Complaint form is dated the 28th of April 2020 and will relate to the period of six months immediately preceding this date. |
Summary of Complainant’s Case:
The Complainant gave evidence on his own behalf. His wife was with him to assist. At the outset it is clear that the Complainant is not a Mobile Worker as stipulated in the relevant Statutory Instrument detailed in Complaint CA-00035886-001 above. It was clear from reading the Workplace Relations complaint Form that the Complainant was maintaining a claim under the Payment of Wages Act. |
Summary of Respondent’s Case:
The Respondent evidence was provided by the General Manager Mr. W and the HR Manager Ms SC. I had an outline of the Respondent’s case in advance of the hearing by an informed letter dated the 2nd of July 2020 addressed to the WRC. The Respondent met the claim outlined by the Complainant in his narrative in the workplace relations complaint form. The Complainant is a warehouse operative and the regulations pertaining to persons performing mobile road transport activities do not relate to him. |
Findings and Conclusions:
I have carefully considered the evidence I have heard. I have formally added a claim on behalf of the Complainant. This is a claim under the payment of wages Act and is the claim the Complainant articulated in his complaint form and in oral evidence and is also the complaint which the Respondent has met in advance submission and in oral evidence. I am satisfied no prejudice occurs in adding this complain reference CA-00035886-002. I am also satisfied that the parties accept the appropriateness of adding the complaint under the correct legislation. The Complainant had worked in logistics since 2016. He was transferred to the present Employer in and around June 2017 and stayed with the Respondent Employer up to his resignation in February of 2020. In the course of his employment with the Respondent company the Complainant maintained that he was entitled to be paid an allowance called the Team Leader Allowance which amounts to the extra sum of €1.25 per hour being applied to the standard rate of pay which for him was €10.36. The Complainant therefore asserted that the loss of the Team Leader allowance could amount to somewhere between €40 and €50 per 40-hour week. The Respondent on the other hand states that it has no record of the complainant having a recognised ongoing entitlement to a Team Leader Allowance. It states that the records from the previous Employer simply stated that the Complainant would be entitled to a Team Leader Allowance of “€1.25 per hour when worked”. The Company has suggested that this language imposes no commitment and simply asserts an entitlement in the event that the Complainant acts up in this capacity. The Respondent had always understood that this Employee had been transferred to its employment as a Warehouse Operative simpliciter. The Respondent accepts he might have received the Allowance on occasion in the past but only when he was specifically asked to take on that role on a specific shift and when the need arose. They understood the payment not to form part of a guaranteed remunerative package. The Complainant believes that he was training up other Employees in the same way as he had with the previous Employer and which had entitled him, in the past, to the Team Allowance. The company suggested that the Complainant might historically have done more shifts as Team Leader but this was not the case at the date of transfer and certainly not the case since he was in their employment since June 2017. The Respondent indicated that from the start of the employment, the Complainant was given Team Leader status and associated payment perhaps once a week – usually on a Sunday. The Complainant was not particularly happy about this but the arrangement continued until March 2019 (albeit by that time he was not even acting as Team Leader but was getting the payment on Sundays anyway). The Complainant was then notified that as the workplace structure was changing, he would no longer be required to sporadically act up as team leader. The Respondent witness gave evidence that he knew that the Complainant was unhappy about the incremental reduction in salary but was adamant that the complainant had no entitlement and indeed had been overpaid the allowance for a period of time before it was stopped all together. The Complainant had a Solicitor contact the Employer, but the Respondent witness said whilst he looked again at the TUPE arrangements when the Complainant came to work for him and he was satisfied that he was correct. The Complainant tendered his resignation some 11 months after the cessation of the payment of the Team Leader allowance. On balance, I have to accept that the Complainant had no contractual entitlement to a Team Leader allowance. If he genuinely did have that belief, there is no way he would have allowed the reduction from having the payment in every shift to just the Sunday shift. I accept that the Complainant was not happy with his new employer and was aggrieved at the loss of the allowance. However, nearly a year has passed by since he was last paid that allowance and in those circumstances, I find it curious that the complainant did not assert his entitlement whilst in the workplace and only raised it after tendering his resignation. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 CA-00035886-001 This complaint is not well founded Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00035886-002 This complaint is not well founded |
Dated: 2nd July 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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