Complainant

Respondent

Parties

Harry  Pollard

Sodexo Ireland Limited

Complainant

Respondent

Representatives

  Self-Represented

Niamh Ní Cheallaigh of 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-00045203-001

15/07/2021

The issue in contention concerns the removal of a Shift Allowance of 30% of Basic Pay. The allowance was paid from the commencement of employment in 2015 until June 2021 when it was withdrawn. The circumstances and reasoning for the removal were strongly contested.

The Employment, as an Electrical Technician, commenced in July 2015 and continues. The Employer is a Services Contracting Company. The Complainant is primarily based in Dundalk, Co. Louth

At the date of the Hearing the Gross Pay was € 4583 per month for a 39 Hour week.

The Complainant gave an oral Testimony in support of his information on the WRC Complaint form. He was subject to Cross Examination from Ms Ni Cheallaigh for the Respondent.

He had been recruited in 2015 for a 24-Hour shift pattern that carried a 30% Premium. He agreed that in May 2019 the Client requirement for Night cover ceased. He maintained that in May 2019 he had reached an Agreement with the then Technical Manager, Mr. SC, that in return for doing On Call work at Company sites including Dublin Sites he would retain the Shift Allowance. The Complainant pointed to the Minutes of meetings on the 1st,5th and 30th May 2019 which he maintained detailed the agreement of Mr.SC to the retention of the Shift Allowance on the on-Call Availability basis.  Mr. SC’s letter of the 4th June 2019 was effective written confirmation of the Employer’s Agreement. (The various meeting minutes were presented in evidence as part of the Management submission). The Allowance was paid without incident until May 2021. 

In May 2021 the Company told him the payment was a mistake. They had neglected, in error, to stop it in 2019. They offered to buy it out for a 52 weeks value. He had refused the offer and suggested a payment of 104 weeks.

The Complainant maintained that he had an offer in writing from the 2019 Contracts Manager and this could not be reversed. Various Consultation meetings (4th May and the 20th May 2021) had taken place where he had explained his position. Agreement was not possible, and he had sought the assistance of the WRC.

The compensation Lump Sum was paid in his Pay of June 2021 despite his requests for the Payment to be reversed. The Shift Allowance ceased at the same time.

In summary he had a written agreement with Mr SC from the 4th June 2019 and the Employer was in breach of the Payment of Wages Act ,1991 in seeking to remove his allowance.

The Respondent made a detailed written Submission supported by an Oral Testimony.

Much of the dates referred to were as in the Complainant submission. In May 2019 the Client Company, based in Dundalk, ceased the Night Shift and the Complainant was due to go back to a 5-day Day Shift only roster. In addition, he would be assigned to operate on an On-Call basis to cover Dublin sites. An On-call payment was agreed and in addition he would be paid the 30% Shift roster on top of the On-Call Payments. The issue was the subject of a number of meetings with Mr. SC, the then Technical Manager. In the view of the Respondent what was agreed was that the 30% Shift would only apply to “active” on Call Hours i.e. during a physical Call Out. While this was not specifically mentioned in Mr. SC’s letter of the 4th June 2019 the meaning was clear.

In May 2021 the then Manager, Mr. M, noticed that the Shift Allowance was still being paid and initiated new negotiations with the Complainant. The Shift 30% had been paid in error, but the Respondent offered as a “gesture of good will” to buy it out for a 48 and later 52-week value of the allowance payment. The Complainant refused this and insisted on a 104-week payment.

The Respondent, despite the protest of the Complainant, paid a 52-week payment in July 2021.

The issue had been referred by the Complainant to the WRC on the 15th July 2021 under the Payment of Wages Act,1991

In Legal submissions the Respondent referred to Section 5 (6) of the Act and the issue of what the Act calls “properly payable” wages. To secure a Shift Payment of 30% requires, in logic, an employee to be actually doing Shift Work. This has not been the case since early 2019. The continuation of he Payment was an administrative error by the Respondent and the eventual 52 week Buy Out was a generous recognition of the error and compensation to the Complainant.

As a further Technical point, the complaint was lodged on the 15th July 2021 – the applicable Time Period under Section 41 of the Workplace Relations Act 2015 was the previous six-month period i.e. back to the 16th January 2021.

The Complainant was in receipt of the 30% allowance during this period. Even if the Complaint was to succeed, which it should not, no Compensation can be paid for loss of an allowance that was still being paid.

To be direct with the Parties this complaint is clearly an Industrial Relations issue and needs to be either resolved in direct negotiations or referred to the WRC Conciliation Service under the Workplace Relations Act,2015.

Bearing in mind the time limits -6 months plus 6 months discretionary, this needs to be done, if decided upon, without delay.

Nonetheless as regards this actual Complaint Sections 5 (1) & (6) of the PoW Act,1991 (as quoted below)

Regulation of certain deductions made and payments received by employers.

5

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. 

(5) Nothing in this section applies to—

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of—

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment,

made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

 (6) Where—

(a) 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)

* (AO highlighting)

refers to Wages that are “Properly Payable.”. In this case the Complainant referred to Mr. SC’s letter of the 4th June 2019 which is completely silent on any deductions of the 30% Allowance -in fact it refers to “All terms and Conditions remaining the same” and the fact that the Allowance was paid for almost two years without issue. The Complainant maintained that Mr SC, a Senior Manager, had agreed, on behalf of the Respondent, to the new arrangements as described by the Complainant.

On balance and objective observation, it was hard from an Adjudication standpoint to not give credence to the Complainant. The Respondent is a major employer with sophisticated HR and Finance functions, to allow the 30% run for two years without being picked up in internal Audits etc seemed a bit unusual, to say the least.

On questioning by the AO, the Respondent confirmed that Mr.SC is no longer an employee and was unavailable to give direct evidence as to what actually passed in the meetings of May 2019.

Accordingly, and having reviewed the evidence both written and Oral Testimony the Adjudication conclusion has to be that the “Properly Payable” wages up to June 2021 only, included the 30% Shift Allowance.

The Complaint is therefore deemed to be Well Founded and is sustained.

Compensation for loss cannot arise as the allowance was paid during the six-month period prior to the lodging of the Complaint.