ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00029569
Parties:
| Complainant | Respondent |
Parties | Sheila Nutley | Brackernagh Ltd |
Representatives | Barnaba Dorda SIPTU | Tommy Smyth HR |
Complaint(s):
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-00040242-001 | 05/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040242-002 | 05/10/2020 |
Date of Adjudication Hearing: 17/05/2021
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
This matter was heard 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.
Background:
The Complainant was employed since August 1995 by the Respondent in a supermarket. She works on 32 a week inclusive of breaks consisting of six hours on Mondays, Wednesdays, Thursdays and Fridays (9 AM to 3 PM) and eight hours on Tuesdays (9 AM to 5 PM). Her hourly rate of pay is €12.36. It was clear from the evidence presented to me that the working relationship between the parties was strained because of this dispute. |
Summary of Complainant’s Case:
CA-00040242-001 This complaint is in relation to the loss of work and pay for one hour per week. The Complainant explained that she worked 15 minutes on Mondays, Wednesdays, Thursdays and Fridays counting her till at the end of her shift. She was informed that this would cease and her payment for same also. Her claim dated from 22 May 2020. The complainant submitted a number of payslips dating between 2007 and 2020 as evidence of her 33-hour working week. CA-00040242-002 The Complainant submitted that on 27 March 2020 her payment for a daily 15-minute break also ceased. She had been in receipt of this payment for the previous 25 years. |
Summary of Respondent’s Case:
CA-00040242-001 The Respondent acknowledged that the Complainant had raised a grievance on the loss of an hour counting tills each week. It acknowledged that she was a senior member of staff and had a set roster each week. It acknowledged that she was paid to 3:15 PM prior to the decision to change how the tills were counted each day to implement Covid health precautions. The Respondent implemented a change in work practices where the tills were handed to the accounts manager for counting. It had made a payment to her from March 2020 to May 2020 to resolve her grievance on this lost hour. The Respondent was prepared to add an hour to the Complainant's roster, but she never took up the opportunity. CA-00040242-002 The respondent's case is that it doesn't pay for rest breaks. It acknowledged that it made an error in the Complainant start time. Even though she started work at 9 AM, the calculation of your wages had her starting work at 8:45 AM. This was not discovered until the new time/payroll program (Timepoint rostering) was put in place in March 2020. The Respondent was prepared to roster the Complainant an additional 75 minutes a week to resolve the Complainant's grievance on the loss of wages arising from the discovery of the error. |
Findings and Conclusions:
This is a complaint pursuant to the Payment of Wages Act. The Payment of Wages Act 1991 sets out as follows: 5.— (1) 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. (2) An employer shall not make a deduction from the wages of an employee in respect of— (a) any act or omission of the employee, or (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless— (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and (iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with— (I) in case the term referred to in subparagraph (i)is in writing, a copy thereof, (II) in any other case, notice in writing of the existence and effect of the term, and (iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and (v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and (vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and (vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services. Complaint to adjudication officer undersection 41 of Workplace Relations Act 2015 6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, 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 or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding — (a) the net amount of the wages (after the making of any lawful deduction therefrom) that — (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount. (2) (a) An adjudication officer shall not give a decision referred to in subsection (1) in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment. (b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to in subsection (1) in relation to the deduction or payment. The Payment of Wages Act prohibits the making of deductions from an employee’s wages unless required or authorised by the Act or the employee has consented to the deduction. It is for the Complainant to show in the first instance that wages were properly payable to her and not paid by the Respondent. The evidence presented to me was that the Complainant was on a set roster each week. That was agreed by the parties. CA-00040242-001 While I accept that the Respondent reorganised duties due to the Covid-19 Pandemic, I do not accept that the decision to impose the deduction of one hour per week in the Complainant’s salary was reasonable and proportionate. I note the Respondent stated that he was prepared to add a replacement hour to her roster, but the Complainant had never availed of the opportunity to take up that hour. Imposing pay cuts without consultation or consent is not reasonable. I accept the Complainants evidence that her wages were deducted by one hour per week by the Respondent. My power under the Payment of Wages Act is to make an order in relation to complaints preceding the date on which the complaint was made. The complaint was made on the 5/10/2020. The deductions made to the Complainants pay over 19.6 weeks. The deduction amounts to €242.26. CA-00040242-002 I accept the Respondent's submission that it does not pay for rest breaks. I was provided with a letter of complaint on this matter from SIPTU in relation to other staff members.
I accept the Respondent's submission that it had made an error in calculating the Complainant's wages by 15 minutes per day. I do not accept that this 15 minutes per day is properly payable to the Complainant. |
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-00040242-001 This Complaint is well-founded. I award the Complainant €242.26. CA-00040242-002 This Complaint is not well founded. |
Dated: 10th September 2021
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
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