Complainant

Respondent

Parties

Gerardine  Tierney

Vector Workplace And Facility Management Limited

Representatives

Marie O'Connor SIPTU

Fergus Dwyer IBEC

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-00043816-002

29/04/2021

The Complainant transferred under TUPE to the Respondent at one rate of pay and has since undertaken new additional work with the Respondent at a different site which was paid less that a rate of pay at another site and the Complainant is seeking that the higher rate of pay applies to all her hours of work with the Respondent.

The Respondent has not paid the Complainant the amount due to her in contravention of the Payment of Wages Act, 1991.

The Complainant began her employment as a Cleaning Operative with the Respondent on the 11th October, 2010 under a transfer of undertaking to Aramark. Her continuous start date is the 18th September, 2006.  At the time of the transfer the Complainant was employed as Cleaning Operative with the Company A. The Complainant was on an hourly rate of €15.11 per hour. Her current rate of pay is €15.40 per hour. A copy of her Statement of Terms and Conditions were supplied.

In 2017 the Complainant approached her Manager Mr. BB seeking additional hours. Mr. BB contacted the Complainant on foot of this and asked if he could pass on her number to Mr. GD, Regional Manager who was looking for staff in the Company B. The Complainant met with Mr. GD who offered her additional hours. This was not a formal interview and the Complainant did not apply for the position. The rate of pay was not discussed as the Complainant was already a member of staff. The Complaint commenced as a Cleaning Operative at Company B on the 16th October 2017.

On receipt of her first payslip the Complainant noticed that she there were two different rates of pay. She was being paid €10.40 per hour for the hours in Company B, which has since increased to €11.20 per hour. She queried this with Ms. AOC Co-Ordinator who advised she would look into the matter. Ms AOC then left the company. The Complainant then raised the matter with Mr. RC in 2018 and 2019 who advised her she should be on the higher rate of pay, and that he would look into it. Mr. RC then left the company.

The position was taken over by Ms. LB In September, 2020 Ms. LB was contacted by Ms. TB  (Payroll) in relation to the Complainant's rate of pay and asked for her contact details. Ms. TB contacted the Complainant and advised her that she was on the wrong rate of pay for her hours in Company B and said that the Respondent were breaking the law by not paying her the rate she TUPE'd to the company on. Ms. LB then met with the Complainant in relation to the issue. The Complainant advised her that she had raised the issue with two previous co-ordinators and informed her about the conversation with Ms. TB.  

The Complainant then raised a Grievance in relation to the matter.

Ms. LB , Regional Facilities Co-ordinator wrote to the Complainant on the 25 th November, 2020 which stated "During your interview with Mr. GD, Regional Facilities Manager you were advised of the terms of this role were in line with the current JLC terms with an hourly rate of €10.40 per hour....The role at the Company B was offered to you as per the above terms and I note you have worked as part of these terms on this site since October, 2017".

The Complainant appealed the outcome to Mr. MB on the 27th November, 2020.

On the 16th December 2020 the Complainant emailed Mr. MB Regional Facilities Manager setting out the grounds for her Appeal, which were as follows:

                      Incorrect date set out for the TUPE.

    The details of how the Complainant got the position in Company B are incorrect

                      Details of the interview with Mr. GD inaccurate.

                   Details of how this issue was raised are inaccurate.

An Appeal Hearing was held on the 5 th January, 2021. On the 5 th February, 2021 Mr. MB  wrote to the Complainant with the outcome of the Appeal which was not upheld in relation to her rate of pay. The Complainant appealed the outcome on the 12th February, 2021 on the following grounds: -

“Ms. TB’s statement is untrue.

Mr. RC  statement is untrue.

Rate of pay was not discussed/agreed at the interview as I was already working for Aramark at the time.

On foot of TUPE I don't accept that I am not entitled to the same rate in Company B as I am getting on the Company A site, as it is additional hours with the same company.”

On the 12th March, 2021 the Appeal was heard by Ms. EB , Regional Manager. At the hearing the Complainant confirmed that she has worked with the Respondent on many other sites and is paid the higher rate of pay. Ms. EB concluded that the Complainant had no entitlement to the higher rate of pay as she did not TUPE into the Company B site.

The Complainant referred the matter to the Workplace Relations on the 29th April, 2021.

The Complainant transferred to the Respondent Company on the 11 th October, 2010 on a rate of pay of €15.11 per hour. In 2017 she was given additional hours. However, she was only paid €10.40 per hour in respect of these hours. The Complainant did not receive a Contract for these hours at the time. She was an existing employee whose hourly rate of pay was €15.11.

The terms of the Employment Regulation (Amendment) Orders (Contract Cleaning Joint Labour Committee) for 2016 and 2020 do not apply in this case as the Complainant has a higher rate of pay on foot of the TUPE.

The Complainant does not accept that the Respondent can rely on the argument that there are different rates of pay on different sites. The Complainant is relying on the hourly rate under TUPE.

In the absence of a written statement of terms and conditions from the Respondent prior to the issue being raised, the Complainant contends that the 'total amount of wages that is properly payable' is €15.40 per hour rather than €11.20 per hour for 20 hours per week.

The Complainant contended this leaves a deficit of €4.20 per hour which gives a total sum of €84.00 per week.

Section 6 (1) of the 1977 Act provides that a decision of an Adjudication Officer in relation to a complaint of a contravention of Section 5 as respects a deduction made by an employer from the wages of an employee that the complaint is well founded shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he or she considers reasonable in the circumstances.

The Complainant Representative cited the case of Bruce v Wiggins Teape (Stationery) Ltd [19941 UKEAT 10150 held that there was no valid distinction to be drawn for between, on the one hand, a deduction of wages and, on the other, a reduction in wages. In O'Sullivan v Department of Education [19981 ELR 217 the Employment Appeals Tribunal held that, if employees do not receive from the outset what is 'properly payable' to them, then this could amount to a deduction within the meaning of the Act.

The Complainant sought that the Adjudicator;

declare that the case is well founded,

require the Respondent to pay to the Complainant the hourly rate she is entitled to under TUPE and that same be paid retrospectively.

Award such compensation as the Adjudicator may deem for the breach of the Act.

The Respondent denied the claim in its entirety.

The Complainant was working as a Cleaning Supervisor at Company A on a rate of 15.11 Euro per hour.

The Complainant applied for a part time post with the Respondent to be located at Company B., where the rate of pay for Clearing staff was 10.80 per hour. Her application for the role was successful and she commenced work on the Company B site on October 16th, 2017.

The Complainant alleges that she is entitled to the higher rate of pay for working as a Cleaner at Company B.

The Complainant made enquires of her Manager Mr. BB as to how she could earn more income. Mr. BB got a call from Mr. GD who said he was looking for staff at another site, Company B and that the rate of pay would be 10.40 per hour.  The Complainant than spoke to Mr. GD and was successful in her application for a role at Company B.

The Respondent refutes the suggestion that the Complainant is entitled to her higher rate as a result of her transfer of undertaking for all hours worked with the Respondent at Company B.

The Complainants work at Company A is different to that at Company B and attracts a different rate of pay and is separate and distinct from her new role.

The Respondent had a number of conversations with the Complainant and the Respondent’s position was clarified to the Complainant by letter dated November 25th, 2019.

The Respondent dealt with the issue and decided that the TUPE regulations only applied to the date of transfer which was subsequently clarified as October 11, 2010.

After enquiring about the rate of pay at Company B the Complainant was met by Mr. C around October/November 2017 and informed her correct and appropriate rate of pay for Company B was the lower rate.

The Complainant appealed the decision and her appeal was rejected on the basis no documentation or contract had been provided to the Complainant outlining her rate of pay at Company B and that the Complainant had previously provided cover at other site from time to time at the higher rate, but these were not permanent roles. And therefore, not paid at the “cover” site rate. The appeal concluded that as the Complainant did not TUPE into the Company B site there was no entitlement to the TUPE rate for work undertaken at the Company B site.

This claim is taken under the Payment of wages Act 1991 and therefore the Complainant must show that she was “properly entitled” to the higher rate of pay that she is claiming for the additional hours she undertook. To do this one of the following conditions must exist;

The Complainant transferred under TUPE for the hours claimed at the higher rate (CONDITION A).

The Complainant was given a verbal or written contract at the higher rate for the additional hours (CONDITION B).

The Parties, under contract law, intended that the higher rate of pay would be paid for the additional hours (CONDITION C) or

Section 1 of the Payment of Wages Act, 1991 provides:-

"Wages" in relation to an employee, means any sum payable to the employee by the employer in connection with is employment including-

(a) 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

Section 5 (6)(a) 6 of the Payment of Wages Act, 1991 provides that:-

Where The total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act). Then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on that occasion.”

On examination of the details of the complaint it emerged the Complainant had worked 2 hours per week at Company A (the TUPE transfer in company) and this increased to 10 hours per week and 20 hours per week at Company B (the new post).

The Complainant started work with her former employer on September 18th 2006 and her continuous service was recognised by the Respondent in the transfer of undertaking. The Complainant appears to have started work in Company B in October 2017. The Complainant transferred to the Respondent on October 11th 2010. Company B set out the terms of employment for work at the two sites in writing on November 25th 2020. No copy of the contract of employment with the Complainants previous employer was provided to the Adjudicator.

The Complainants primary case is that she was not told a different rate of pay would apply when she took up the new post/hours and that, as such, an implied contract had been entered into at the higher rate of pay. The Respondent made out that the Complainant was never told the higher rate of pay would apply to hours at Company B.

The Complainants other case revolves around the fact that a Payroll person informed her that she was on the wrong rate of pay (the lower rate A) for the additional hours and that it was illegal. Neither the person who interviewed/met the Complainant for the new post/hours or the payroll person was provided to the Hearing as a Witness to support the Complainant’s claims. A Payroll person is not in a legal position to make an offer regarding rates of pay but to administer/implement an offer made by the proper legal person in the company empowered to make such an offer. I’m sure the Payroll Persons comments were of a well-meaning intention and the above statement is no reflection whatsoever on the Payrolls integrity or ability or should be inferred by the above statement.

Under contract law, no offer and acceptance of an offer of the higher rate of pay was made so therefore the complaint fails the contract law test of an implied term being offered at the higher rate. No written contract for the higher rate exists. The Respondent has made out that it never intended to offer, or offered, the higher rate of pay for the additional hours.

Under TUPE legislation a person transferring is only entitled to the same terms and conditions that they enjoyed with the previous employer on the date of transfer. This does not preclude a subsequent new contract being agreed/provided for different terms for a new position or hours. The protection of Employees on Transfer of Undertaking Regulations 2003 state as follows” 4.1 The Transferees rights and obligation arising from a contract of employment existing on the date of a transfer, shall by reason of such transfer, be transferred to the Transferee”. The Complainants rate of pay for the agreed/contracted work hours were complied with under TUPE on the date of the Transfer in October 2010 so the issue here is moot as the additional work hours were agreed in 2017.

So, Conditions A, B or C do not exist to support the complaint that the higher rate was “properly payable”.

Therefore, the Complaint does not satisfy any of the tests to make the new additional hours of work qualify for the higher rate as “properly payable” under the Payment of Wages Act 1991.

I find that the Complaint is not well founded and find in favour of the Respondent.

Pay