Complainant

Respondent

Parties

Romana  Vancekova

Primark Ltd. t/a Penneys

Representatives

  In person.

Michael McGrath  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-00046131-001

12/09/2021

The Complainant commenced employment with the Respondent on 18 August 2008. She signed a 15-hour minimum contract as a Part-Time Retail Assistant. Between the years 2008 - 2014, she worked flexible hours from Monday to Sunday with two days off each week.

This complaint was received by the Workplace Relations Commission on 12th September 2021.

1.       The Complainant commenced employment with Penneys on 18 August 2008. She signed a 15-hour minimum contract as a Part-Time Retail Assistant. Between the years 2008 - 2014, she worked flexible hours from Monday to Sunday with two days off each week.

2.       From 2015 the Complainant asked to reduce her working days and hours. Her working days are Saturday and Sunday.

3.       The Complainant’s weekly average hours from 2015 to the present is 13 hours. Her work pattern since 2015 is: Saturday - 7.5 hours Sunday - 5.5 hours + 5.5 hours double payment Bank Holidays - 5.5 hours + 5.5 hours double payment.

4.       The Complainant has a regular pattern of work where she works three out of four Sundays. Her average weekly wage based on 13 hours per week is a gross payment of 306.73 euros: 13hrs + 5.5 Premium for Sunday = 18.5 hrs x 16.58 euros.

5.       Following the 3rd National lockdown, the Complainant received an email from the Company on 8 Jan 2021 notifying her that they are closing all stores.

6.       The Complainant was notified that she would get paid 80% of her contracted hours. There was no information regarding the EWSS. The Complainant wasn’t offered the option of being temporarily laid off. During the 3rd lockdown (from 25 March 2021 to 13 May 2021), she was receiving a weekly gross payment of 172.43 euros: 80% of 13 hrs = 10.4 x 16.58 euro

7.       Early in January, the Complainant contacted HR. she wrote an email that she wasn't happy with the payments she was receiving. She was stating that as a weekend worker she was receiving approximately a 40% pay cut. That was not the case for a large group of her colleagues who don't regularly work on weekends. Their income dropped approximately by 20%.

8.       Following this complaint, the Complainant received a telephone call from HR which she didn't find satisfactory. She also wrote two complaints to Mandate. Following these complaints she received a call from the Divisional Organiser of Mandate Trade Union. She was told me that she (Mandate Official) considered her payments to be correct.

9.       She was also informed by the Mandate Official that if she is still not happy, she would have to talk about this issue again to her employer and write a Grievance of my own. The Complainant wrote a Grievance letter on 21 March 2021 to HR and copied it to Mandate. The Grievance meeting took place via zoom call on 6 April 2021. She got an official response letter from her Store manager on 21st April 2021. The letter stated that the Company made the same decision for everyone, her payments were reviewed and were correct.

10.   As the Complainant had gone through the Grievance process without any success, in July 2021 she engaged a solicitor. The solicitor wrote a letter to the Company on 4 August 2021 that the Complainant  hadn't agreed to this unilateral deduction of her wages and she would take this matter to the WRC. The response letter from the Company on 19 August 2021 says that the Complainant did not carry out any work during this time while she was receiving 80% of my pay.

11.   The Complainant takes issue with this as she had been receiving approx.60% of my stable gross income without her consent. The Complainant does not find this decision fair and reasonable. A large group of her colleagues were receiving 80% of their income.

The within claim by the complainant against her current employer is brought under the Payment of Wages Act 1991. The claim was submitted on 12 September 2021.The six-month period before the adjudicator commences on 13 March 2021 to that date.  The Respondent disputes this claim as without basis.

The complainant during a period of state enforced store closure was paid a support payment in a manner agreed with the union. The complainant, as per negotiated agreement with the union Mandate, on behalf of all employees, was paid 80% of her contracted hours while the stores were closed, during the third lockdown, as a support payment. No wages were properly payable to her or the thousands of other company employees in addition to many thousands of other retail workers employers across the state at that time.  As such no deduction was made and the claim must fail.

Background to the Company

Primark is a retail group in the value sector and operates 409 stores across 14 countries employing more than 70,000 colleagues. In Ireland, Primark trades under the Penneys brand where it has 36 stores and employs almost 5,500 colleagues in these stores.    Maintaining competitiveness and price leadership in the Irish market, and indeed across all international markets, is fundamental to the success of the Penneys/Primark business model.  Competitiveness a key issue for the Penneys business which operates a low-cost volume business model in a very challenging retail environment.    A key objective of the company has always been to maximize employment in the long term and provide secure employment for all colleagues.

Background to the Complainant

The Complainant commenced employment with the respondent as a Part Time Retail Assistant on 18 August 2008 on a 15-hour contract. In September 2015 she requested to reduce her hours to 11.5 hours per week (weekend contract).  Her custom and practice from 2015 to 2020 (lockdown) was 13 hours per week. Since August 2021 she has been working 11.5 hours at her request. Her working days are Saturday (6 hours) and 3 out of 4 Sundays (5.5hours).

Background to the Claim

As a result of the Pandemic/Public Health emergency the government closed non-essential physical retail settings for defined periods. The company was forced to close its retail stores on three occasions. On each occasion, the company, in agreement with the Mandate trade union, with whom they have a collective bargaining relationship, agreed, as an alternative to laying staff off, to provide a support payment to all retail staff in both their Unions (Mandate and Siptu).

·       The formula for calculating this support payment, in the relevant period for this hearing, was as follows;

·       For effected employees on ‘banded hours’ contracts, the company agreed to pay these employees 80% of the higher end of their band.

·       For all other effected retail employees, it was 80% of their contracted hours,

·       The support payment calculation did not include premium hours in addition to contractual hours. Premium payments are applied to hours physically worked.

This was agreed with Mandate before payment was implemented across the company. Approximately 5,000 retail staff received a payment based upon the agreed formula, including the complainant.

The company provided communications to all staff reflecting the commitment to pay 80% of contracted hours during the relevant period. The company also provided FAQ documents to answer any issues which may arise as a result of the agreed payment.

The complainant was not on a banded hours contract. The clamant was deemed for the purposes of this payment to work 13 hours as opposed to 11.5 as this was her average in the three years previously. The complainant received 80% of 13 hours pay for the period from January 2021 to May 2021.

The Complainant’s Grievance

The complainant was unhappy with the level of her payment and raised the matter internally in a grievance process.  She was informed of the rationale and the method of payment calculation taken by the company and agreed by the union.

The complainant was informed by Mandate when she contacted them that she was provided with the correct level of support payment in accordance with their negotiated agreement on her behalf of how the lockdown support payments would be calculated.

The respondent subsequently received correspondence from the complainant’s solicitor which it responded to outlining its clear position prior to the claim being submitted to the WRC.

It is the company’s understanding that the complainant’s grievance is based on how she sees the relative percentage difference in the lockdown payment between her and other employees. This is based on the fact that the complainant works a Saturday and every 3 of 4 Sundays. A Sunday is a day which attracts a premium payment of double time. As outlined above, Premium payments were not agreed to be factored into the support payment.

It is the company position this is the complainant’s central grievance. It is apparent from her own claim form that both the complainant and the complainant’s union understand that the complainant was not on lay off and that the complainant was paid in a manner agreed by the union on behalf the complainant, despite there being no entitlement to be paid during the lockdown period.

Effectively, the Union has informed the clamant that she has been paid the support payment as agreed by the union on her behalf. It is instructive to note that the complainant did in the first instance go to her ‘representative’ union to address her concerns. The same union which was representing her in the support payment discussions.

Company Position

Monies not properly payable therefore no deduction

It is therespondent’s clear position thatno wages were properly payable to the complainant during the period of retail store closure. Therefore, no deduction as per section 5 can have been made. 

Section 6 of the act states;

‘(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) …

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 the occasion.’

It is important to remember that it was the state which prevented non-essential retail stores from opening. As a result of this decision made during a public health emergency, there were no ‘occasions’ on which the complainant could work.  It follows therefore, that as no payments were ‘properly payable on that occasion’ as per section 6 (a) to the complainant, that no ‘deduction’ could have been made.

As the complainant did not work any hours while the stores were shut the complainant was not entitled to be paid for those hours. The company, in order to support its staff thorough a difficult time chose to make a payment to employees while the stores were closed and agreed a formula related to the employees contracted hours to determine a formula which could be applied readily and efficiently to those employees who had no work at the time. The payment was a support payment and was not a payment in respect of hours worked.

Furthermore, the complainant is an hourly paid employee and is paid based on the hours that are physically worked.  The complainant’s hours can, and do, change and are provided to her on a roster in advance of the shift.  The complainant for example works 3 out of 4 Sundays. The complainant is paid for the hours which she works. If the complainant does not work any hours, then no payment is ‘properly payable’ to her.

It is the company position based on the above, that no deduction as defined in Section 5 of the Act has been made.  Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard.

Regulation of Deductions

Notwithstanding the above position, should the adjudicator consider that a deduction may have been made, which the company strongly rejects, the company position is as follows;

It is a condition of the complainant’s employment to be a member of the union Mandate.  (see excerpt from contract below). It is the practice of the company to negotiate with the union on terms and conditions of employment. The company consulted with, and agreed with the union, the method of support payment for all retail staff, despite no hours being worked, for the period in question. It is therefore a contractual condition of the complainant’s employment that any provisions which are agreed with her union on her behalf are taken to have been agreed by the complainant. For the purpose of clarity, the complainant has in the course of her employment benefited from agreements with the union which have been applied to and altered her contractual entitlements. This demonstrates a custom and practice of this happening.   The complainant’s contract of employment states;

‘UNION MEMBERSHIP

It is a condition of employment that sales staff employed by the company shall upon taking up employment be members of Mandate…. Union contributions will be deducted on a weekly basis from your wages.’

Accordingly, if the Adjudicator deems a deduction to exist, the position is that any such deduction is authorised, to be made as per section 5 (1) (b);

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.

Agreed by the union on behalf of all staff.

It is common case that Mandate have agreed on behalf of all retail staff to accept the payment, based on the formula of 80% of contracted hours, provided by the company during the store closures. The union understood the predicament that the company and their members were in and were supportive of the company’s decision to make some payment to employees during the closure period. This is not in dispute and is evidenced in the complainant’s own claim form whereby she indicates that she approached the union to raise a grievance and was informed that the payment she received was correct.

Knock-On Implications

It is critical to note that the payment formula was applied to approx. 5,000 thousand retail colleagues. The respondent has not received one other claim from an employee based on this formula of payment. To find in the complainant’s favour would have serious knock-on implications as the payment was applied to all effected retail staff across the company.

Furthermore, it would completely undermine the company union relationship and inhibit the company and union relationship and ability to discuss, negotiate or apply agreed changes to retail staff as a result.

Finally, it is clear that there were many thousands of employers in the same position who provided no payment to their employees in the same circumstances. It would be absurd for the respondent to be penalised for trying to do right by its employees in providing a union agreed support payment to its retail staff during a public health emergency.

No compensation reasonable in circumstances

Section 6 (2) of the Act states;

(2) Where a rights commissioner decides, as respects a complaint under this section in relation to 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 well-founded in regard to the whole or a part of the deduction or payment, the commissioner shall order the employer to pay to the employee compensation of such amount (if any) as he thinks reasonable in the circumstances not exceeding—

It is the respondent position that should the adjudicator deem that a deduction was made that no compensation is reasonable in the circumstances. The wording of the section makes clear provision for an adjudicator to make such a decision.

The Representative for the Respondent has very clearly stated that it is important to remember that it was the state which prevented non-essential retail stores from opening. As a result of this decision made during a public health emergency, there were no ‘occasions’ on which the complainant could work.  It follows therefore, that as no payments were ‘properly payable on that occasion’ as per section 6 (a) to the complainant, that no ‘deduction’ could have been made.

I find it very difficult to disagree with this statement.

The Respondent’s representative goes onto state:

It is common case that Mandate have agreed on behalf of all retail staff to accept the payment, based on the formula of 80% of contracted hours, provided by the company during the store closures. The union understood the predicament that the company and their members were in and were supportive of the company’s decision to make some payment to employees during the closure period. This is not in dispute and is evidenced in the complainant’s own claim form whereby she indicates that she approached the union to raise a grievance and was informed that the payment she received was correct.

I have given full consideration to this complaint and conclude that the complaint is not well founded and therefore fails.

I have given full consideration to this complaint and conclude that the complaint is not well founded and therefore fails.