Complainant

Respondent

Parties

John  Nolan

M & J McGowan Ltd t/a McGowan’s Print

Representatives

  Self

Gareth Kyne

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040807-001

05/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040807-002

05/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040807-003

05/11/2020

The complainant was employed as a printer with the respondent company from 01 June 2010 to 19 November 2020.  He worked a 34-hour week (night shift) and his gross pay was €2746.67 per month.  The complainant submitted three complaints to the Workplace Relations Commission on 05 November 2020.  The complaints were 1) not receiving a statement in writing of his terms and conditions, 2) being paid less than the amount due to him and 3) receiving a statement of his core terms which deliberately contained false or misleading information.

The respondent submits the complaint in respect of pay is badly conceived, groundless in the emergency situation which existed and should be dismissed.  Further, the respondent submits the complaints in respect of a statement of terms and conditions of employment are not well founded and should be dismissed.

The complainant stated that he worked for the respondent company for over 10 years and did not receive a contract of employment or statement of terms.  In February 2020 the respondent offered him a written contract with completely different terms and conditions and asked him to sign that contract.  The complainant raised queries about terms and conditions contained in the contract, but these were not addressed by the respondent.  The complainant did not accept or sign the contract.

The complainant worked a night shift and no suitable arrangement was made by the respondent for him to meet with the HR representative to discuss his issues with the draft contract.  The complainant made several requests for a meeting with HR to discuss the draft contract.

The complainant asserts that as he worked for 10 years without a written contract and he now understands that he has implied terms and conditions.  Further, he asserts the respondent had no right to unilaterally reduce, amend or otherwise alter his terms and conditions of employment.

The complainant asserts that he never agreed to short-time work or reduced wages.  The complainant claims the respondent made deductions from his wages amounting to €8,879.94 gross between April 1st and October 31st, 2020.

The complainant was issued with a contract in February 2020.   He asserts the contract contained several serious errors.  He immediately notified the respondent of the errors, but they failed to arrange a meeting with HR to address or correct these errors.  This contract, he alleges, deliberately changed and worsens his pay and conditions without negotiation or acceptance on his behalf.

The complainant claims redress for the breaches of his rights under the Payment of Wages Act, 1991 and the Terms of Employment (Information) Act, 1994, as set out above.

The respondent is an industry leading print company based in Dublin.  Prior to the Covid-19 pandemic the respondent employed approximately 160 people.  The complainant was employed as a Digital Printer until his employment terminated on 19 November 2020, by reason of redundancy.

Due to the pandemic demand for the respondent’s printed products fell by 50% in 2020.  The only part of the business that was considered an essential service was its small print labelling operation.  Arising from the reduction in business the company needed substantial financial support from its owners and the Government to survive.  The company implemented a series of measures to cut costs and restructure the business in order to maintain as many of its employees as possible in employment.  The way production was organised and scheduled was restructured.  The night shift was eliminated, and employees were placed on reduced day-time hours.

Payment of Wages Complaint

The business was in serious difficulty from March 2020 and had to rely on Government assistance, in the form of the Temporary Wage Subsidy Scheme to maintain employees on the payroll.  The respondent rejects the complainant’s statement that the company used Covid-19 as an excuse for not paying him wages he claims were due to him.

The respondent submits that the core issue is whether the cut in wages constitutes a deduction of wages that were ‘properly payable’ to the complainant.  The term ‘properly payable’ provides for circumstances where wages are not ‘payable’.  They are not properly due when the terms of the contract are suspended because of unforeseen circumstances, such as the Covid-19 pandemic.  The respondent submits that the Government imposed restrictions to protect us as a society and acted to suspend or frustrate essential terms of this contract and very many other contracts.

The respondent asserts that the complainant freely agreed to the then temporary arrangements and availed of the wage subsidy payments made by the Government from April until October 2020.  He only raised an objection by e-mail dated, 02 October 2020.  The respondent submits that there was a national emergency and by availing of the state supports employees de facto agreed to very special terms of lay-offs, short-time working, and other measurers put in place to avoid extreme hardship.

The respondent seeks to have this complainant dismissed on the grounds it is badly conceived and groundless in the emergency situation which existed and continues to exist.

Terms and Conditions Complaints

The respondent accepts that it was in breach of its obligations, as set out in the Act, when it failed to issue a valid written statement of terms and conditions of employment at the commencement of the complainant’s employment with the company.  However, it sought to rectify that wrong in February 2020 when it issued draft contracts to all staff.  Several sessions were held on site at which employees who had questions about the draft contracts could meet with the HR Manager to discuss their concerns and have errors corrected.  Section 3 of the Act sets out the legal requirements for a valid statement of terms and conditions.  The 14 items listed in Section 3 of the Act are all contained in the draft contract issued to the complainant on 25 February 20202.  Of the 14 items there were errors or misunderstandings on two points, the correct job title and the hours of work.  These items could have been resolved in discussions with HR, but matters were overshadowed by the possibility of redundancy.  The respondent asserts there was no attempt to unilaterally change the complainant’s conditions of employment as set out in the Act.

The respondent seeks to have this complainant dismissed as it is not well founded.

The respondent rejects the allegation that the company deliberately issued him with a false or misleading statement of terms and conditions of employment.  The respondent submits that the complainant made no attempt to show that this accusation is well founded regarding the elements of the contract that are covered by the Act.

The respondent seeks to have this complaint dismissed as the complaint has not made out any case.

CA-00040807-001

Complaint submitted under Section 7 of the Terms of Employment (Information) Act, 1994

Section 3 of the Act requires an employer to provide the following statement:

Statement of terms of employment.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(a) [...]

(b) [...]

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) [...]

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) [...]

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

    (i) incapacity for work due to sickness or injury and paid sick leave, and

    (ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

It is accepted by the respondent that a statement as required by Section 3 was not provided to the complainant when he commenced employment in 2010.  The respondent attempted to rectify that breach of the Act by issuing a draft contract in February 2020. 

At that time the respondent commenced a process of issuing new draft contracts to all its employees.  The complainant provided me with copies of the e-mails sent by the Operations Manager to all staff informing them that up to date contracts would be issued to them.  Employees were informed that any questions regarding the contract could be put to the HR staff who would be on site.  Several dates were provided.  The complainant received a copy of his draft contract on 27 February 2020.  The following day he sent an e-mail to the Operations Manager noting there were inaccuracies in the document and stating he was happy to discuss these before signing the final correct and agreed contract.

The respondent is its submission accepted that the draft contract contained two errors.  The job title and the hours of work were incorrect.  These errors were not corrected as the complainant did not get an opportunity to meet with the HR Manager until 09 November 2020.  The complainant worked a night shift and could not attend meetings during the day. He sent several e-mails requesting a meeting to resolve the issues, but no meeting took place before the first lockdown in March 2020.  I accept that from March to May 2020, most people were required to work from home due to health and safety restrictions.  However, there was no explanation as to why these contractual errors could not have been discussed by telephone.

I have considered carefully the submissions and the evidence of the complainant and I am satisfied that there was a breach of Section 3 of the Act when the respondent failed to provide the complainant with a statement of his terms of employment at the commencement of his employment.  Unless a statement of terms is provided to the employee there is a subsisting breach throughout the employment.  I am satisfied that the draft contract provided to the complainant in February 2020 did not meet the requirements of the Act due to the admitted errors contained therein.  I find that the complaint is well founded.

The Act provides, in relation to a contravention under Section 3, that the employer may be ordered to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks’ remuneration.  The Act transposes the Written Terms Directive of 1991 (91/533/EC and latterly, Directive 2019/1152).  As it arises from EU law redress must be ‘effective, dissuasive and proportionate’.  Considering that in over 10 years of employment the complainant was not provided with a written statement of his terms of employment I am satisfied it is just an equitable to award him redress of €2500.00

CA-00040807-002

Complaint submitted under Section 6 of the Payment of Wages Act, 1991

The complainant claims that he was paid less than the amount due to him and that he never agreed to be put on short-time or have his wages reduced.

It is common knowledge that emergency measures were implemented in the interest of public health and safety due to the Covid-19 pandemic.  In March 2020 most employees, other than those in essential services, were required to work from home or were on reduced hours or put on lay-off.  The respondent suffered a reduction of up to 50% in its business.  In response to the sudden loss of business the respondent made changes that included reduced hours for employees, use of the Temporary Wage Subsidy Scheme and eventually some posts were made redundant.

The complainant did not have a written contract of employment and therefore there was no written term providing for lay-off or reduction in pay.  The respondent utilised the Government Temporary Wage Subsidy Scheme (TWSS) to maintain the employees on payroll.  The respondent provided details of the monthly payments made to the complainant.  For the months of April, May, June, July and August 2020 the gross income to the complainant is shown as 0.01cent, he was paid the TWSS amount with no top-up from the employer.  During that period, he was only required to attend work on 15 days. 

The complaint was received by the Workplace Relations Commission on 05 November 2020.  The cognisable period for a claim under the Act is from 06 May to 05 November 2020. 

The question to be determined is whether the deduction contravened Section 5 of the Act.

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) …

(3) …

(4) …

(5) …

(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), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, 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.

Wages Properly Payable

The complainant claims that the wages properly payable to him were his normal monthly gross of €2746.67.  This amount was confirmed as the normal monthly payment prior to April 2020 in the documents submitted by the respondent.  I find that the complainant had a contractual entitlement to a monthly wage of €2746.67.  I find that the complainant did not receive the wages he was contractually entitled to in the period from 06 May to 05 November 2020.

Deduction

The complainant asserted that he did not agree to a reduction in his wages.  The respondent asserted that as the complainant did not raise any objection he had in fact agreed to the deduction.  The complainant did raise an objection by e-mail, dated 02 October 2020.  I am satisfied that the complainant did not agree to a reduction in the wages properly due to him.  The deduction made by the respondent did not conform to the requirement contained in Section 5(1) (c) of the Act and it was therefore an unlawful deduction.  I find the complaint is well founded.

Redress

The Act provides the following concerning redress for a breach of Section 5:

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.

I have considered carefully the statements of the respondent concerning the loss of business and the steps taken to try to maintain as many employees on payroll as possible during a difficult trading period.  I acknowledge that the business met the Government requirements to qualify for the TWSS support payment.  I am satisfied that the deductions were not unreasonable in the very difficult trading circumstances faced by the respondent.  I note that the complainant was only required to attend work on 15 days during the relevant period.  In the circumstances I consider it reasonable to direct the respondent employer to pay to the complainant the amount of €2500.00 in compensation for the breach of Section 5 of the Act.

CA-00040807-003

Complaint submitted under Section 7 of the Terms of Employment (Information) Act, 1994

The complainant stated on the complaint form that he received a statement of his core terms which deliberately contained false and misleading information.  In his evidence the complainant referred to contractual terms contained in the draft contract provided to him in February 2020.  In his view the respondent was attempting to change terms and conditions of employment that he held to have been implied over the course of his employment. 

The complainant did not present evidence that the respondent deliberately provided false information.  It was clear to me that the complainant disagreed with some of the terms contained in the draft contract, but I find no evidence of deliberate false statements by the respondent of the core terms of employment.  I find this complaint is not well founded.

CA-00040807-001

Complaint submitted under Section 7 of the Terms of Employment (Information) Act, 1994

I have considered carefully the submissions and the evidence of the complainant and I am satisfied that there was a breach of Section 3 of the Act when the respondent failed to provide the complainant with a statement of his terms of employment at the commencement of his employment.  Unless a statement of terms is provided to the employee there is a subsisting breach throughout the employment.  I am satisfied that the draft contract provided to the complainant in February 2020 did not meet the requirements of the Act due to the admitted errors contained therein.  I find that the complaint is well founded.

The Act transposes the Written Terms Directive of 1991 (91/533/EC and latterly, Directive 2019/1152).  As it arises from EU law redress must be ‘effective, dissuasive and proportionate’.  Considering that in over 10 years of employment the complainant was not provided with a written statement of his terms of employment I am satisfied it is just an equitable to award him redress of €2500.00

CA-00040807-002

Complaint submitted under Section 6 of the Payment of Wages Act, 1991

I am satisfied that the complainant did not agreed to a reduction in the wages properly due to him.  The deduction made by the respondent did not conform to the requirement contained in Section 5(1) (c) of the Act and it was therefore an unlawful deduction.  I find the complaint is well founded.

I am satisfied that the deductions were not unreasonable in the very difficult trading circumstances faced by the respondent.  I note that the complainant was only required to attend work on 15 days during the relevant period.  In the circumstances I consider it reasonable to direct the respondent employer to pay to the complainant the amount of €2500.00 in compensation for the breach of Section 5 of the Act.

CA-00040807-003

Complaint submitted under Section 7 of the Terms of Employment (Information) Act, 1994

I find no evidence of deliberate false statements by the respondent of the core terms of employment.  I find this complaint is not well founded.

Terms of Employment

Deduction of wages properly due

TWSS

Statement of Core Terms of Employment