FULL RECOMMENDATION
PARTIES : THE IRISH WHEELCHAIR ASSOCIATION DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00031184, CA-00040955-002.
In this Determination the parties are referred to as they were at first instance. Hence the Irish Wheelchair Association is referred to as ‘the Respondent’ and Ms Ouvard as ‘the Complainant’. The complaint was lodged with the WRC on the 12thNovember 2020 and therefore the cognisable period as defined by the Act is the 13thMay 2020 to 12thNovember 2020. Background It has been accepted since Labour Court Recommendation CD/14/266 that all sleep over hours are working time. Within a sleepover shift the hours from midnight to eight were traditionally compensated for in the form of a lump sum (in this case €76) as the worker could normally sleep during that period. If the worker was disturbed from their sleep during these hours, they would be paid the normal hourly rate or some other agreed rate for the hours they were awake and working. Following on from Labour Court Recommendation CD/14/266 the norm in the sector moved to paying the minimum wage hourly rate for the hours between 12 midnight and 8am while the rate for the hours where a worker was disturbed remained the same as before. In the case to hand the Employer implemented that change from June 2020 and back dated the new rates to June 2018. Summary of Complainants case Ms Hoyne representative for the Complainant submitted that the Respondent unilaterally changed the manner in which ‘sleepovers’ were paid in June 2020, and this constituted a breach of the Act in the cognisable period. Ms Hoyne submitted that from the time the Complainant commenced work with this employer up until June 2020, during a sleepover shift, the periods between 12 midnight and 8.00am were paid at a rate of €76 for the block of hours. The Complainant submitted that this allowance was calculated by multiplying the hourly rate by five so de facto the Complainant was only paid for five of the eight hours she worked, and that the last three hours were not paid. In June 2020 the Employer implemented a change to the sleepover rate between midnight and 8.00am and paid the minimum wage hourly rate of €10.10 per hour. Ms Hoyne submitted that although the Complainants pay slips for the period showed that she was in fact being paid more after June 2020, this was misleading as it did not take account of the fact that previously the Complainant had not been paid for three hours that she worked. Ms Hoyne on behalf of the Complainant was unable to provide any evidence supporting her contention that the €76 euro only related to the first five hours of the midnight to eight am period and not the total eight hours. However, she submitted that she was told this by a manager. Unfortunately, the manager was not available to give evidence to that effect. Summary of Respondent’s case Mr Tony Kerr SC on behalf of the Respondent submitted that the application of the new rate after June 2020 actually increased the Complainant’s earnings to €10.10 for each hour during the period of 12 midnight to 8.00 am. Prior to that, the rate was a payment of €76 euro for those eight hours, if you average that out over 8 hours it works out at €9.50per hour. The figure of €76 was arrived at by applying a multiplier of five to an hourly rate of pay. This appears to be where the confusion is arising as the Complainant is suggesting that the multiplier of five is an indication that only five out of the eight hours were paid for. This is not correct, the rate of €76 applied to the eight hours and always has. Different employers in the sector paid different lumpsums and the HSE for example only paid €46 for the same period of eight hours. If during that period, the Complainant is wakened she is then paid her normal hourly rate for the period she is awake. The Respondent’s records show that the Complainant was not wakened on any occasion during the cognisable period. Mr Kerr SC submitted that the Complainant has not established that on any occasions she was paid less than what was properly payable and therefore she has not established that a breach of the Act occurred. The applicable law Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6) states; “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”. Discussion The issue for the Court to consider is whether the Complainant during the cognisable period was paid the wages that were properly payable. The Complainant’s Representative accepted that when the payslips for the period were reviewed there was no reduction or deduction in the Complainant’s wages. The Complainant could not point to any occasion during the cognisable period where she was paid less that the total amount of wages that were properly payable. The Complaint in fact received an increase during the period. On that basis the Court has to find that there has not been a contravention of the Act. Conclusion
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