FULL RECOMMENDATION
PARTIES : LARKIN UNEMPLOYED CENTRE LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00004618 CA-00006333-001 The Complainant worked for the Respondent under a Community Employment, ‘CE’, scheme on rolling contracts from 2007. In May 2015, the Complainant’s weekly pay was reduced from €542.84 per week to €501.08 per week. The Complainant lodged a complaint under the Act with the Workplace Relations Commission, ‘WRC’. The Adjudication Officer, ‘AO’, held that the complaint was not well founded. The Complainant appealed to this Court. This appeal is one of a number under this Act and other legislation involving the two parties. A first hearing identified that it would be preferable for all cases involving these parties to be taken together. At a second hearing, a preliminary issue of law was raised. The parties agreed to make submissions on this point of law and agreed also that the cases could then be determined based on submissions received rather than requiring further hearings. Preliminary Issue The Respondent’s representatives raised with the Court the question as to whether the Court had jurisdiction to hear the appeal citing the case ofHSE v. McDermott (2014) IEHC331,in which the High Court had set out the principles for this Court in determining if a complaint under the Act was taken within the six months’ cognisable period for which the Act provides. The following is a summary of the submissions on this preliminary issue. Note; This case was re-heard by the WRC in 2019 for operational reasons. Summary of Complainant arguments on preliminary issue. The complaint was submitted on 27 July 2016. The date from which an unlawful deduction was claimed was stated to be limited to six months from the date of complaint. In accordance withHSE v McDermott,each separate underpayment is a separate cause of action and although the original underpayment occurred more than six months prior to the complaint, the manner in which the complaint was formulated makes clear that the Complainant is seeking redress for an under-payment within the cognisable period recognised by the Act. Summary of Respondent arguments The Respondent submitted what was, effectively, a summary ofHSE v. McDermott. The applicable law Workplace Relations Act 2015 6) Subject tosubsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. 8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to insubsection (6)or(7)(but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. Deliberation on preliminary issue. InHSE v. McDermott,it was held clearly that it is not necessary for a complaint to be lodged within six months of the first alleged breach of the Act and that there is a ‘rolling time-table’, so that an employee has 6 months from each breach to make a claim of contravention. Hogan J. observed that much depended on how the complaint was framed so that even if unlawful deductions from pay were being claimed to date back for a period of years, provided the complaint relates to a period of six months beginning on the date to which the complaint relates, it will be in time. It is clear from the wording of the complaint in the instant case that the Complainant is seeking to make a complaint in respect of the six months’ period prior to the date of her complaint. It is, therefore, equally clear that, in accordance with the clear directions provided inMcDermott,the complaint is in time, the AO had jurisdiction to hear it and this Court has jurisdiction to consider the appeal. On the preliminary issue, therefore, the Court determines that this is a valid appeal. Submissions on the substantive issue Summary of Complainant arguments. The Complainant was the subject of an illegal deduction from €542.98 to €459.32 in the cognisable period. The Complainant signed a contract for October 2013 to October 2014. She received a further contract in October 2015, which she did not sign and there were further rolling contracts. At no stage did the Complainant agree or consent to a reduction in her wages. It has always been contended by the employee, (*) that the Complainant worked 36 hours per week and that her wages were reduced to €501.08 for 36 hours’ work. The contractual hours of work was 39 hours. The employer cannot contractually reduce the employee’s hours of work or pay without consent. The signed contract and thereafter provided for 39 hours. The employer is contending that the Complainant only worked 36 hours. The employer is attempting to convert the contract from being a salary to an hourly rate of pay. (*)This is re-produced as it appeared in the submission to the Court. It is presumed that there is a typographical error and that ‘employee’ should read ‘employer’. Summary of Respondent arguments The Complainant’s contract from 2013 states ‘Rate; Point 4’ and hours of work ’39 hours per week’. This is repeated in her contract from October 2014 to October 2015. This latter contract states also that the Complainant would work agreed family friendly hours from 1 May 2015 and that her salary would be reduced pro-rata. This came about at the Complainant’s request as she informed the Respondent that she had difficulty working over 36 hours per week and that she wanted to reduce her hours. This was reiterated at an appraisal meeting in April 2015 in which the Respondent agreed to reduce her hours to 36 per week and to reduce her lunch from one hour to 30 minutes. It was explained to the Complainant that the Respondent could only obtain funding for hours worked. Therefore, she was fore-warned that her wage would be reduced and this was affirmed in her contract from October 2014. Prior to May 2015 the Complainant was paid 542.84 per week for a 39 hour week. From that date she was paid €501.08 for a 36 hour week. This was an agreed reduction and was clearly stated in the Complainant’s contract from 2015. The Complainant’s contract from 2016 states re pay—‘Rate;€13.92……..€542.84 weekly for 39 hours working week, (excluding lunch break). This contract reflects the agreed family friendly hours and it is clear that the rate of pay quoted is for a 39 hour week. If there was a deduction, it was in accordance with s.5 (1) (b) of the Act as it was authorised by the Complainant to whom it had been explained that her pay was being reduced ‘pro rata’ in order to meet her request for reduced hours. The reduction in pay was commensurate with the reduction in hours. The Complainant’s position is that she should be paid in respect of a 39 hour week regardless of whether she worked a 39 hour week. Further, or in the alternative, it is the Complainant’s claim that she was entitled to an increase in pay at the time her hours were reduced. The applicable law. Payment of Wages 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. 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. Deliberation In accordance with the direction given to this Court by the High Court in the case ofMarek Balans v Tesco Ireland 92020) IEHC55,the first task for the Court in examining if an unlawful deduction has been made is to determine what was ‘properly payable’ to the Complainant. In this regard, the submission on behalf of the Respondent is that the Complainant sought a reduction in her working hours, that she was accommodated in her request and that her pay was reduced ‘pro rata’. The submission by the Complainant’s representative is considerably less clear, it is summarised above, and it is difficult for the Court to determine with absolute clarity what, in fact, is being argued in respect of the complaint. If, as it appears, it is being argued that the Complainant was entitled to a rate of pay irrespective of the hours that she worked then that argument fails manifestly to take account of the fact that from 2013 onwards her contracts set out both a rate of pay and weekly hours. It ought not to require the Court to point out the rather obvious relationship between the two and the equally obvious fact that if the hours reduced then the amount that is ‘properly payable’ within the meaning of the Act would be expected to reduce also unless some other provision in the contract specified differently. It might be argued, as an exception to the above application of commonsense to the interpretation of the Act, that, if the Complainant’s hours were cut unilaterally with a consequential reduction in pay, then there was an unlawful deduction. If that was to be the argument to be put to the Court by the Complainant’s representative then it required that it be put with greater clarity than was provided in the submission made on behalf of the Complainant. In any event, it is unsatisfactory that the Court should be left to engage in conjecture in order to determine what a party’s representative is arguing on their behalf. It would appear, on the face of it, that the argument for a breach of the Act is based on a position that the Complainant’s rate of pay bore no relationship to the hours that she worked. However, her contract sets out clearly that there is a rate of pay and her hours of work are 39 hours per week. It follows, logically, that if her hours decreased by agreement, there was a direct impact on the rate of pay that was also agreed and that agreement to reduce her hours of work to 36 per week included agreement, whether implicit or explicit, that her pay would reduce accordingly. It appears that this was explained to the Complainant prior to her commencing to work her reduced hours and the reduced pay was provided for explicitly in her contract from 2015. Therefore, by agreeing to reduce her hours, something that she, herself, requested, the Complainant gave her agreement to a commensurate reduction in her pay. If the reduction in her pay was not acceptable to her, it was explained to her in advance and, therefore, she had the opportunity to withdraw her requested reduction in hours. She could have been in no doubt as to the position once she received her contract in 2015, which put in writing what had been advised to her orally in April 2015. That contract set out what was agreed and what was properly payable to her. No argument has been put to the Court that could justify a finding that there has been any breach of the Act and the Court is satisfied that the Complainant received what was properly payable to her within the meaning of the Act. Determination The Decision of the Adjudication Officer is upheld.
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