FULL RECOMMENDATION
PARTIES : VECTOR WORKPLACE & FACILITY MANAGEMENT LIMITED T/A ARAMARK WORKPLACE SOLUTIONS DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00033095. This is an appeal by Ms Gerardine Tierney (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00033095, dated 19 November 2021) under the Payment of Wages Act 1991 (‘the Act’). Notice of Appeal was received by the Court on 7 December 2021. The Court heard the appeal in a virtual courtroom on 2 March 2022. The Court heard evidence from the Complainant and from the following witnesses on behalf of Vector Workplace and Facility Management Limited T/A Aramark Workplace Solutions (‘the Respondent’): Mr Brian Burke (Regional Manager), Ms Erika Barenscher (Regional Manager) and Ms Audrey Hogan (Human Resources Business Partner). FACTUAL BACKGROUND: There is little or no disagreement between the Parties in relation to the material facts relevant to this appeal. The Complainant transferred to the Respondent’s employment from ISS Facilities Management in 2010 on foot of a transfer of undertakings within the meaning of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003 when the Respondent acquired the facilities management contract for the Road Safety Authority’s (‘RSA’) offices in Galway. The Complainant was, and remains, the sole cleaner assigned to those offices. At all material times, the Complainant has been remunerated for her work in RSA at a rate of pay that is higher than the basic Employment Regulation Order (‘ERO’) rate paid to cleaners. She is paid at €15.40 for that work i.e. as a supervisor because she is a keyholder. When the Complainant transferred to the Respondent’s employment, she was working two hours per week in the RSA offices. This increased to ten hours per week following the commencement of the Covid-19 pandemic and remains at ten hours per week currently. In 2017, the Complainant approached her Manager, Mr Brian Burke to enquire if any additional hours could be given to her. Mr Burke had no available hours but informed the Complainant that he was aware that a colleague of his – another Manager, Mr Dowling, who had responsibility for a different client portfolio – had advertised for cleaning staff to service a newly acquired contract with the Primary Care Centre (‘the PCC’) in Tuam. Mr Burke passed the Complainant’s contact details to Mr Dowling who duly contacted the Complainant and offered her twenty hours’ work per week in the PCC. Although, the Complainant had a face-to-face meeting with Mr Dowling following an initial telephone conversation, her evidence is that they had no discussion about the hourly rate of pay that was on offer for the work in the PCC. She assumed that she would receive the same rate of pay as applied to her work in RSA. When she received her first payslip after commencing the work in the PCC, she realised she was being remunerated at the ERO basic hourly rate. She did not receive a written statement of terms and conditions at the time. The Complainant sought to address the issue of her hourly rate of pay for the PCC work with her managers locally through 2017, 2018 and 2019. She then invoked the Respondent’s grievance procedure in 2020. The final stage of that process was heard by Ms Barenscher who issued her findings in March 2021. Ms Barenscher concluded that the Complainant was not entitled to receive the same higher rate of pay for her work in the PCC as that which applied to her work in RSA as she had not transferred by reason of a transfer of undertaking into the PCC role. The Complainant referred a complaint thereafter under the Act to the Workplace Relations Commission in the following terms: I am not paid the correct rate of pay for extra hours given to me by my employer. My hourly rate is €15.40. I work additional hours for which I am not being paid the same rate. My employer is only paying me €11.40 for the additional hours. This breach is continuous.” The Adjudication Officer decided that the Complaint under the Act was not well-founded. THE COMPLAINANT’S EVIDENCE: The Complainant told the Court that her employment as a cleaner in the RSA offices transferred from ISS to the Respondent in October 2010. On the date of transfer her hourly rate of pay was €14.75. This has subsequently risen to €15.40 per hour. The Complainant explained the circumstances in which she came to apply for extra working hours at the PCC and her engagement with Mr Dowling in this regard in 2017. She told the Court that she did not receive a written statement of terms and conditions in respect of her work in the PCC until April 2021, after her grievance complaint had been finally determined. The Complainant also gave evidence of having done relief work on other sites for the Respondent (including at Royal & Alliance Offices in Galway, RSA offices in Carramore and Ulster Bank in Tuam) for which she was remunerated at the higher hourly rate. Under cross-examination, the Complainant accepted that while she had been paid the higher hourly rate for a short period when she commenced providing relief cover at the Ulster Bank site, she was told by the responsible Manager that the correct rate for the site was the ERO rate. She, nevertheless, remained working on the site for several months after the rate paid to her for her work there was reduced. Mr BRIAN BURKE’S EVIDENCE: The witness told the Court that he is a Regional Facilities Manager and had responsibility for the RSA sites. He said his understanding is that the Complainant transferred from ISS to the Respondent as a Cleaning Supervisor and this explains why she is paid at the higher rate for her work in RSA. He confirmed the Complainant’s account of his role in directing her to Mr Dowling when she had approached him (Mr Burke) seeking additional hours. The witness said that the RSA account and the PCC account are two distinct and separate accounts under the control of different managers. He had no further involvement in the Complainant’s engagement on the PCC contract beyond passing her contact details, at her request, to Mr Dowling. The witness explained the process whereby existing cleaning staff can avail themselves of the opportunity to do extra work when cover for staff who are absent on sick leave or for some other reason is needed. He told the Court that managers in other regions circulate email requests in such circumstances and when he receives such a request he will send an email to cleaning staff for whom he is responsible to advise them of the availability of additional ad hoc hours at locations other than RSA offices. The witness confirmed the contents of an email exchange that took place between himself and Mr Krzysztof Bruszewski in the Respondent’s payroll section over a number of days in late January and early February 2018 arising from the Complainant having been inadvertently paid the lower rate of pay for her work in the RSA while also being incorrectly placed on the higher rate of pay for the relief work she was doing at the time in Ulster Bank (RBS). In answer to questions from the Court, the witness confirmed that the Complainant is remunerated at the higher rate (currently €15.40 per hour) for all work done on the RSA contract as she transferred as a Cleaning Supervisor to the Respondent although she is the sole Cleaner in the Galway offices of RSA. The witness also confirmed that the PCC contract was new business in 2017 when the Complainant was offered work there. The Respondent was recruiting at the time for the new contract at the ERO rate of pay. EVIDENCE OF Ms. BARENSCHER The witness told the Court that she conducted the final appeal stage in the grievance taken by the Complainant in respect of the hourly rate of pay she received for her work on the PCC site. T he Complainant had referred four grounds of appeal, one of which was upheld by the witness. However, the witness concluded that the Complainant had been remunerated at the correct rate for her work in the PCC. The witness told the Court that the Complainant had transferred from ISS to the Respondent on the higher rate of pay as she had additional responsibility as a keyholder for the RSA offices in Galway. This was the reason, according to the witness, that the Complainant received the supervisor’s rate for that work. EVIDENCE OF Ms. AUDREY HOGAN: The witness told the Court that she has worked in the ‘Vector’ side of the Respondent’s business for approximately twelve years. She said that cleaning staff employed by the Respondent can be paid different rates of pay where they work across different sites as the rate of pay on some sites is higher when staff employed there had transferred from other employers following transfers of undertakings. Under cross-examination, the witness confirmed that the Complainant was paid the higher rate when she was providing temporary cover at the offices of Royal & Sun Alliance. However, the witness opined that this was because the relevant Manager had authorised payment at that rate. The witness also accepted that the Complainant should have been issued with a written statement of terms when she commenced work on the PCC site. SUBMISSIONS: It is submitted on behalf of the Complainant that the higher hourly rate of pay is properly payable to her in respect of her work in the PCC in circumstances where she had transferred to the Respondent on that higher hourly rate of pay; no written contract of employment had issued to her advising her of a lower rate of pay when she commenced the PPC work and she had regularly been paid the higher rate by the Respondent when providing ad hoc, temporary cover on other sites. The Respondent submits that that its contract with RSA and its contract with the PCC are two distinct contracts. It accepts that the Complainant’s work on the RSA site transferred to it by reason of a transfer of undertaking and the Complainant’s higher rate of pay for that work was preserved after the transfer of the contract to it from ISS. The Respondent further accepts that the Complainant was paid the higher hourly rate when she performed certain additional work, providing relief cover, at the Respondent’s request. However, in its submission, the PCC site is a separate contract that is unconnected to the RSA contract and the Complainant performs different work on each site. Furthermore, it says that the Complainant was never given an undertaking by the Respondent that the higher rate of pay would apply for work done on the PCC site. For that reason, it submits that the Complainant has been paid the wages that are properly payable to her for her work on the PCC site. DISCUSSION AND DECISION: The evidence before the Court does not support the Complainant’s case that the higher hourly rate of pay which she receives for her work at the RSA site is the rate that is properly payable to her for the work she has undertaken at the PCC site since 2017. The Complainant’s receives a supervisor’s rate of pay at the RSA site because she is a keyholder for that site and she transferred to the Respondent from a previous contractor, by reason of a transfer of undertakings, on the higher rate of pay. There is no connection between that work the Complaint does on the RSA site and that which she does on the PCC site save that she is employed by the Respondent to work on both sites. However, in the Court’s opinion, the Complainant clearly entered into a new and separate arrangement with the Respondent in 2017, on her own initiative, in order to obtain further and additional work. This was new business obtained by the Respondent on a new site and, as there had been no predecessor contractor on that site, the Respondent was free to recruit cleaning staff for the site at the basic ERO rate. This is what it did. There appears to the Court to be no basis in law for the suggestion that the Respondent was bound to pay the Complainant at the higher hourly rate of pay for this work simply because she had transferred to it some seven years previously on a completely separate site. Put simply, the Court views the contract of employment entered into by the Complainant with the Respondent in 2017 to work on the PCC site as being a new and distinct contract of employment and totally unconnected with her pre-existing contract of employment. All Parties accept that the Respondent never gave an undertaking to the Complainant that she would receive the supervisor’s hourly rate of pay for work on the PCC site. She was and is employed as a cleaning operative on that site and does not have any additional responsibility there akin to that which she has on the RSA site. The Court, therefore, concludes that the Complainant has been properly remunerated at all times for her work on the PCC site. It follows that the appeal fails and the decision of the Adjudication Officer is affirmed. The Court so determines.
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