ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029210
Parties:
| Complainant | Respondent |
Parties | Bridgette Brew | Galway Cultural Development & Activity trading as Galway 2020 |
Representatives | Self-Represented | Self-Represented |
Complaint:
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-00038871-001 | 23/07/2020 |
Date of Adjudication Hearing: 26/05/21 & 16/09/2021
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced employment on 8th January 2018. At all times the Complainant’s role was described as “Head of Tourism Engagement”. The Complainant was initially contracted to work one day per week, this increased to two days per week within the course of the employment. On 30th June 2020, the Complainant’s employment was terminated by reason of redundancy. On 23rd July 2020 the Complainant lodged the present complaint with the Commission. Herein, she alleged that the Respondent had made an unlawful deduction from her wages by refusing to pay overtime that she had accrued. By response, the Respondent denied the claim, stating that the overtime payment sought was not permitted under the contract of employment and did not constitute “wages” for the purposes of the Act. A hearing in relation to this matter was initially convened for 26th May 2021. On this date, it became apparent that the matter involved a substantial conflict of evidence, and would have to be adjourned pending the enactment of the Workplace Relations Amendment Act 2021. The matter was re-convened and finalised on 16th September 2021. Both hearings were conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by wither side in the course of the hearing. Both parties issued lengthy submissions in advance of the hearing, and expanded upon these during the hearings. The Complainant gave direct evidence herself, while the Respondent called three witnesses on their behalf. All witness evidence was subject to cross-examination. No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings. |
Summary of Complainant’s Case:
The Complainant was engaged as the “Head of Tourism Engagement” by the Respondent on 8th January 2018. Initially, it was envisioned that this role would occupy one day per week of the Complainant’s time, leaving the rest free for her to work on other projects. Notwithstanding the same, from the outset, the Complainant frequently worked in excess of these agreed hours. It was agreed with her line manager that the Complainant could accrue these additional hours as “Time Off in Lieu” (hereafter referred to as “Toil”), to be taken at a later date. Given that the Complainant’s role involved a significant amount of international travel, work out of hours and attendance at events over weekends, the Complainant soon accrued a considerable amount of said Toil. In late 2018, the Respondent agreed to compensate the Complainant for these additional hours, based on her records of the same. In circumstances whereby the Complainant was routinely working in excess of her contractual hours, an agreement was reached whereby these were increased to two days per week in January 2019. Notwithstanding this increase in the Complainant’s set hours, she still found that she was unable to complete her set tasks within her scheduled hours. The Respondent had introduced a flexible working system in early 2019 that allowed the Complainant to accrue additional hours as long as these were agreed with her manager. The nature of the Complainant’s role was that she was particularly busy in 2019, when the majority of the marketing for the event would be undertaken. In February 2019, the Complainant received an assurance from her line manager that the additional hours she was working would be repaid at a later date. The Complainant stated that the understanding was that the nature of her role was front-loaded and she would avail of these as paid time off when the project had commenced and the marketing element was essentially completed. The Complainant stated on 29th March 2019, she commenced an email thread with her line manager whereby this process of banking Toil was approved. The Complainant outlined that over the year of 2019, she banked 35 days of Toil. She submitted that she availed of 1.5 of these days as paid leave in December 2019 and a further 6 days in March 2020. Given that the project was based on incoming domestic and international travellers, the commencement of the restrictions arising from the Covid-19 pandemic meant that the project was no longer feasible and, unfortunately, had to be cancelled. As a consequence of the same, the Complainant entered into a redundancy process in June 2020. As part of this process the Complainant enquired as to the payment of the outstanding hours she was due. At this point, the Complainant was advised that she could not recover these as payment must be pre-approved by a line manager. Despite the Complainant’s submission that this time had, in-fact, been pre-approved, the Respondent maintained that the outstanding payment was not due. In summary the Complainant submitted that she was entitled to a payment for an additional 27.5 day of work, valued at €9,157.50. She submitted that she had completed this work in good faith and with the approval of her line manager at the time. She further submitted that the non-payment of this sum represented an unlawful deduction from her wages in contravention of the Act. |
Summary of Respondent’s Case:
The Complainant commenced employment on 8th January 2018 on a fixed term contract with an expiry date of 31st January 2021. The Complainant’s job title was that of “Head of Tourism Engagement”. The role was essentially responsible for marketing Galway as a tourist destination based on the designation of European Capital of Culture, this included attendance at tourism trade fairs and liaising with national and international tourism organisations. Initially, the Complainant’s contractual working hours were defined as one day per week, with a salary of €16,000. In January 2019, the Complainant’s working time was increased to 2 days per week, with a commensurate increase in salary. In spring of 2019, the Complainant requested that he contractual hours be increased to 3 days per week, following a period of consideration, this request was refused. In April 2020, the Complainant was placed on lay-off. Following a period of consultation, the Complainant was made redundant on 30th June 2020. In disputing the Complainant’s claim for unpaid wages, the Respondent referred to a contract of employment, Section 11 of which stated that “Your hours of employment are one day per week. In the event that you are required to work additional hours, no additional salary will be payable over the normal hours of work.”. In addition to the same, the Respondent opened the amendment to her contract introduced in January 2019. This amendment increased the Complainant’s working hours to two days per week and stated that “the changes are intended to provide additional hours and flexibility to allow you to successfully fulfil the requirements of the head of tourism role”. It was submitted that the Complainant received and agreed to this amendment to contract at the relevant time. In January 2019, the Respondent also introduced a flexitime policy which governed the use of Toil. This policy states that the Respondent does not pay overtime and that the Respondent “will not pay for accrued but unused Toil” and that “Toil must be approved in advance”. In light of the foregoing, the Respondent submitted that payment for Toil is outside the terms of the Complainant’s contract and cannot therefore constitute wages for the purposes of the Payment of Wages Act. They further denied that the Complainant’s line manager approved the Toil in advance, in support of this submission, they open an email dated 26th March whereby the Complainant’s line manager expressed surprise at the level of Toil being claimed and advised that this should have been pre-approved by him. In summary, the Respondent submitted that the Complainant had no contractual entitlement to the monies owed and the overtime worked did not fall within the flexible working time policy. As the alleged outstanding payment did not constitute “wages” for the purposes of the Payment of Wages Act, no unlawful deduction occurred under the terms of the Act. |
Findings and Conclusions:
Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”. In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act, “Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which if there is a deficiency in respect of those such payments”. Section 5 of the Act prohibits any deductions from wages deemed properly payable, unless certain prescribed criteria are met. It is noted that the case advance by the Complainant is that she was not paid for accrued benefit on the termination of her employment. In defending this allegation, the Respondent has submitted that the benefit was not properly payable in any instance. As a consequence of the same, the steps set out in Section 5 are irrelevant for the purposes of this complaint. The benefit to which the complaint relates is known within the Respondent organisation as “time off in lieu” or Toil. The Complainant’s right to this benefit does not derive from statute and emanates purely from her contract of employment. The Respondent contends that at the outset of the Complainant’s employment she was issued with a written contract. Amongst these contractual terms was one that stated that “Your hours of employment are one day per week. In the event that you are required to work additional hours, no additional salary will be payable over the normal hours of work.” In this regard, I note that the Respondent did not hold itself to this provision. Approximately one year following the commencement of the Complainant’s employment she was paid a significant sum for hours worked in addition to this contracted one day per week. Shortly after this payment was made to the Complainant, the Respondent drafted more detailed procedures regarding the accrual of toil. These were set out in the flexi-time policy issued to the Complainant in early 2019, along with an addendum to her contract of employment. The terms therein stated that a maximum of one day’s Toil may be accrued and taken in any calendar month. The policy also states that such accrued Toil must be taken the following month and cannot accrue any further. The Complainant has submitted that notwithstanding the clear terms of the foregoing, she reached an agreement with her line manager that contradicted these terms. Having regard to the totality of the evidence presented I prefer the Complainant’s evidence in this respect. On 29th March, the Complainant issued her line manager with an email recording an extensive period of accrued toil. By response the Complainant’s line manager advised that the purpose of the Toil policy “is that you have time in quieter periods”. This position is at odds with the restrictions set out in the flexible working policy and evidences the Respondent’s non-adherence to the terms of the same. Indeed, it is common case that the Complainant availed of six days of Toil in March 2020 and one day in April 2020, in contravention of the terms of the policy. As part of their defence of this complaint, the Respondent has also stated that the amount of Toil was not pre-approved by management, in accordance with the policy. Notwithstanding the Respondent’s own failure to abide by the terms of the policy they drafted, the Complainant’s evidence was that her work schedule was agreed with her line manager on a monthly basis and that management were aware of all working schedule at all times. In support of this submission, the Complainant referred an international trip that necessitated ten continuous days of work. She stated that such travel was not unusual for her role and accounted for a good portion of the Toil accrued. She further submitted that such travel could only have been approved with the knowledge and consent of management. Having regard to the foregoing, and the Complainant’s direct evidence in this regard, I find that management were aware of, and approved the additional work recorded by the Complainant. In addition to the foregoing, the Respondent has submitted that the flex-time policy states that they will not pay for accrued but unused Toil. They submitted that as this policy does not provide for an operation whereby the unused Toil accrued by the Complainant may be paid as “wages” for the purposes of the present Act, no deduction could have occurred for the purposes of the Act. By response, the Complainant submitted that this policy had not been consistently implemented and that the Respondent had previously paid for outstanding leave accrued in this manner. In this regard, I note that in late 2018, the Complainant informed that Respondent of the additional hours that she worked and requested that she be remunerated for the same. By the terms of the contract opened by the Respondent, no contractual basis for such this payment existed. The term in this regard stated that “you hours of employment are one day per week. In the event that you are required to work additional hours, no additional salary will be paid over the normal hours of work.” On this occasion, the Respondent elected to use their discretion to disregard the term and pay the Complainant for the hours accrued. The situation that arose in March 2020 was somewhat similar, in that the Complainant had worked a substantial amount of additional hours and requested that the Respondent remunerate her for these hours accrued. It is apparent that on this occasion, the Respondent elected not to use their discretion to vary the terms of the procedure and relied on the wording of the same to refuse the request. In the matter of Cleary & Others v B&Q Ireland Limited [2016] IEHC 119, McDermott J. held that when an employer is seeking to exercise discretion regarding the a payment, such discretion must be, “exercised reasonably. If the discretion is exercised unreasonably the employer will be in breach of contract if no reasonable employer would have exercised the discretion in that way…This imposes a very high onus on an employee who claims that the discretion was unreasonably exercised” In this regard, I note that the Complainant undertook extensive work on the Respondent’s behalf, on the understanding she would be in a position to avail of paid time off at a later date. It is common case that the nature of the Complainant’s role is that her work was “front-loaded”. By its very nature, the marketing of the festival would almost exclusively take place in the years and months prior to the event and taper off as the event itself was underway. This was reflected in the agreement reached with the Complainant’s line manager, whereby the Complainant was allowed to work in excess of her contractual days during the busy marketing period and bank the same as Toil, to be used when her role is less busy. It is accepted by all parties that the above-mentioned arrangement would have proceeded to the satisfaction of all parties were it not for the interference of the restrictions arising form the Covid-19 pandemic. It was inevitable an event involving extensive national and international travel would be deemed to be untenable in light of the restrictions in place in mid-2020. As a consequence, the Complainant was placed on lay-off in March 2020 and made redundant shortly after. At this point, the Complainant found herself in a position whereby she had completed much of the marketing work for the Respondent, without any means of availing of the agreed method of compensation for the same. In these circumstances I find the request of the Complainant for payment for these hours to be reasonable in the circumstances, especially given that the Respondent had previously acceded to such a request. Regarding the Respondent’s refusal to exercise their discretion, I find that that this is unreasonable in all the circumstances. The circumstances that gave rise to the Complainant’s application cannot be said to be anything but exceptional, indeed they were much more exceptional than those the existed when the Complainant was paid for unused Toil in 2018. Furthermore, the Respondent’s insistence on reliance of the wording of the policy cannot be said to be reasonable when they themselves did not adhere to it earlier in the year. Having regard to the totality of the foregoing points I find that the Complainant’s application is well-founded and consequently I find in her favour. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00038871-001 – Complaint under the Payment of Wages Act I find that the complaint is well founded and consequently I find in favour of the Complainant. In relation to redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the total amount of wages owed. In light of the foregoing, I order the Respondent to pay the Complainant the sum of €9,157.50, the amount of the deduction from her wages. This payment should be subject to all normal deductions as income. |
Dated: 4th November 2021
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Toil, Time off in lieu, Discretion |