ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033881
Parties:
| Complainant | Respondent |
Parties | Marzena Myszor | SBFM Limited |
Representatives | Complainant represented herself | Helen Nicholson |
Complaint(s):
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-00035771-001 | 20/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035771-002 | 20/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00035771-003 | 20/04/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00035771-004 | 20/04/2020 |
Date of Adjudication Hearing: 22/11/2021 and 26/05/2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The first day of hearing was abandoned due to connectivity difficulties with the interpreter. Much of the Complainants case at the first hearing was concerned with difficulties she had experienced in getting paid and in a timely manner following her transfer to the Respondents employment. On adjourning the first hearing, the Complainant was asked to set out the details of what she claimed was still due for payment in wages and holiday pay. A letter detailing the information required was issued by the undersigned on November 29th and the Complainant replied in writing. The Complainant said there were differences with the new employer leaving the question if these were notified to the Complainant in accordance with the 1994 Act. This aspect took up much of the second hearing. There was delay in resuming the hearing as the scheduled second date was postponed due to ill health on the respondent side. When the hearing resumed in May 2022 the Complainant advised that matters concerning unpaid wages and holiday pay were resolved. Also, at the second hearing there was a discussion about a possible settlement-based on a previous assertion by the Respondent that they had offered to settle the matter. As there was a disagreement on this point on the basis that the Complainant believed the Respondent was mistaken-that an offer was made to a colleague and not to her, it was agreed the option of a settlement would be explored directly between the parties. This unfortunately was not successful as advised subsequently by the Complainant. As requested at the hearing copies of communications concerning the changes in contract introduced by the Respondent were provided following the hearing-by the Complainant.
The complaints under the Payment of Wages including holiday pay will be described as not being well founded for the purposes of making a decision which may be appealed- in case there is there is any remaining doubt that parts of those complaints remain unresolved-given all the back and forth over an extended period. Issues around non-payment of public holiday pay occurred in 2021 after the complaint were submitted to the WRC and any post referral issues are not decided under the earlier referral and in this Decision. No evidence was provided to support a complaint of a breach of an ERO by operation of Section 45a of the Industrial Relations Act 1946. The complaints under the Terms of Employment Information Act 1994 as amended are decided on their own merits.
Background:
The complaints were submitted to the WRC in April 2020. The Complainant transferred her employment as a cleaner to SBFM on 1 February 2020 following a TUPE. |
Summary of Complainant’s Case:
From the time of her transfer to the work with the Respondent, the Complainant experienced huge difficulties with logging on and having her hours of work paid. Supporting emails to the employer were provided to the hearing. This affected both the payment of her wages and her holiday pay including Public Holiday pay. Over a period of months these matters were resolved and at the date of the hearing in May 2022, no payments were outstanding. |
Summary of Respondent’s Case:
There were communications with the Complainant in April 2020 regarding her issues with non-payment of wages which arose from administrative errors around logging/clocking in which did leave the Complainant unpaid for a period which they began to address when notified through the WRC complaint on April 20th . At one point she requested that she not be contacted on the matter any further and the Respondent then believed the problem was resolved. In 2021 the Complainant raised another issue-about non-payment for Public Holidays which they understood was resolved. In August 2021, the Respondent emailed the Complainant regarding the complaint about non-payment of holiday pay but received no reply. The Complainant had provided a copy of the Terms of Employment which she had with the previous employer. These transferred to SBFM under a transfer of undertakings except where there were changes and these were notified to the employees in advance of the transfer. |
Findings and Conclusions:
When these complaints were first submitted the upset and inconvenience caused to the Complainant at that time is very understandable. She was in effect working for weeks without pay and provided emails over weeks trying to obtain assistance to resolve the issue of non -payment. At one stage she was informed the Respondent thought she had left and generally she felt the tone was implying she was a dishonest person which is not at all the case and she was understandably offended. As a matter of fact, a resolution of her problem of non-payment only began in earnest following the referral of her complaints to the WRC. I am however satisfied that these were administrative errors and there was no intention to delay or not make the payments due. Thankfully they were all finally resolved. Regarding the complaints related to terms of employment under the 1946 IR Act-no evidence was presented of a breach of the ERO for Contract Cleaning and having examined it-I see no possible breach here. It was almost certainly a confusion with the complaints related to the terms of employment as I recall was explained at the first hearing. Regarding the terms of employment claims-the Transfer of Undertakings took care of and met with the obligations of SBFM to provide a statement of terms as the written terms signed in 2016 by and held by the Complainant transferred with her, unless altered in advance. Noting that this is a complaint under the Terms of Employment Act 1998, section 5 of that Act does provide for a change to be made by the employer and to be notified in writing within a month of the change. Here the situation is more complex. In December 2019, the Respondent sent emails to the employees due to transfer regarding TUPE and changes in conditions of employment. The main economic potentially adverse change to the Complainants was the change to monthly pay, which certainly made the delays in paying her more severe from her point of view. There is nothing to indicate that the Complainant objected to the changes as notified by the Respondent. That she was able to provide the emails confirms that she was notified. It follows that in meeting their obligations to notify the transferring employees of any changes no later than thirty days before the transfer, the Respondent also notified the Complainant of any changes in her core conditions and her other conditions of employment as required under section 5 of the Terms of Employment Act 1994 as amended. There is a potential contradiction in the requirements of TUPE vs the TE Act as the Respondent was not the employer in December 2019-but the terms of TUPE are statutory terms and are read as taking precedence by application of section 5(2) of the Act of 1994(TE). The complaints under the Terms of Employment Act 1994 are therefore not valid complaints-or well founded which is the term used in the Decision. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00035771 Payment of Wages Act 1991 The complaint that monies including holiday pay properly payable to the Complainant were unlawfully deducted by the Respondent is not well founded. CA-00035771-002/4 Terms of Employment Information Act 1994. The Respondent has provided evidence to satisfy the requirements of the Terms of Employment Information Act. The complaint is therefore not well founded. CA-00035771-003 Section 45A Industrial Relations Act 1946-this complaint was not supported by evidence and is not well founded. |
Dated: 21st July 2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Pay/holiday pay/changes in conditions on transfer. |