adj-00029001

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00029001

Parties: 

Complaints:

Date of Adjudication Hearing:  08/04/2021

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and 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.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. 

Following the remote hearing the parties submitted relevant information and evidence as requested and which was exchanged with the parties post the hearing.

Background:

The Complaint from a Car Valet working for a car sales company refers to his rate of pay under the National Minimum Wage Act,2000; a complaint of unfair dismissal; and a complaint that he did not receive his statutory minimum notice before his termination of employment.  The respondent denied any wrongdoing.

The Complainant commenced his employment as a Valeter on 12th August 2019 and his employment was terminated on 7th July 2020.

Summary of Complainant’s Case:

CA-00038583-001 Complaint under section 24 of the National Minimum Wage Act, 2000

The Complainant submitted that he felt the hours of work he was required to work meant he was being paid below the national minimum wage. As a result, he expressed his concerns in person and by email to his line manager and Human Resources regarding his rate of pay for June 2020. He had also asked by email for his contract to determine his contractual working hours and to determine his rate of pay but maintained that the Respondent refused to answer the rate of pay query and just sent his contract. 

Due to the lack of response to the rate of pay he proceeded to email the Respondent regarding his rate of pay and no response was obtained from these emails. He therefore asked for a reduction in his hours of work to bring him in line with the minimum wage and advised the Respondent that he would be contacting the WRC and Revenue regarding this issue.  The Complainant submitted the email correspondence between himself and his manager/HR from 29th June to 7th July that referred to this matter. 

Referring to his Contract of Employment the Complainant submitted thatthe average hours per week are for 44 hours work, excluding breaks. He submitted this amounts to 2,288 hours per annum. His rate of pay was €22,000 for first 6 months, €24,000 after 6 months, and €25,000 after 1 year. In addition, the Complainant advised that a memo was issued to staff on 27th March 2020 regarding the Covid-19 pandemic, and due to Covid-19, as a support worker who had been working for less than a year, he was to be subject to a pay cut of 25%.

The Complainant submitted thatthe Respondent was claiming the Temporary Wage Subsidy Scheme from March 2020 which gave 75% of his January and February 2020 pay plus an optional 25% top up. This was reflected in the pay slips submitted by the Complainant. The pay slips submitted shows the Complainant received gross pay as follows: November 2019- €1748.71; March 2020- €1,623.93. and May 2020- €1,558.54

The Complainant contended that under the national minimum wage calculations, a pay reference period to calculate the hourly rate of pay can be a week but no longer than one month. The Complainant argued that the Respondent applied an average of over 3 months which is not correct.

He advised that the business was closed for 5 weeks in 2020 which included all of April and one week in May. He submitted that the Respondent has included his gross pay over this period as a way to increase his hourly rate of pay. The Complainant further contended that based on the Respondent’srecord submitted for the hours he worked for June 2020, which states his gross Pay was €1,500 and hours worked are 173 hours (although he maintained he actually worked 192.5 hours), the hourly rate of pay amounts €8.67, which   he argued proves he was paid below the minimum wage for the month June 2020 based on their records. (The hourly minimum wage in 2020 was €10.10 per hour since 1st February 2020 having risen from €9.80 per hour).

CA-00038583-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that in exercising his right under National Minimum Wage Act he was dismissed on 7th July 2020 without warning and in circumstance that he had not received any disciplinary hearings/meetings throughout the duration of his time working for the respondent and has never had any complaints about his work. It is the Complainant’s contention that having previously requested information regarding his rate of pay per hour in emails from 29 June to 6th July 2020, as he believed it to be below the minimum wage, and mentioning that he was going to raise his concern to the WRC that he was fired without warning. 

The Complainant submitted that on 7th July 2020 he was brought into a meeting with HR where he was told without notice that the Respondent was terminating his contract of employment. The Complainant maintained that when he asked if the reason was because of his queries regarding his rate of pay and the Respondent’s HR person said it was a 'business decision'.          

The Complainant acknowledged that in March 2020 the Group CEO issued a letter to all staff regarding the implications of the Covid-19 Pandemic, however his dismissal was not related to the pandemic. He did experience a cut in pay and being off work during April and May due to covid. 

The Complainant stated that in mid-June 2020 he asked his manager for the first time in person about the possibility of reducing his hours as he felt that he was being paid below the minimum wage and asked for this to be checked. Then on 29th June 2020, he sent an email to Human Resources asking if he could reduce his working hours. In a reply he was advised that he had to work his full contractual hours. On 30th June 2020 he sent a second email to HR asking for a copy of his contract and if HR could confirm his rate of pay per hour, but this was replied with just his contract and the response ignored the questions about his rate of pay. Further emails sent by the Complainant on  1st July 2020 and 3rd  July 2020 were not responded to. 

On 6th July 2020 the Complainant emailed his manager and was advised that the HR person was on holidays and the Complainant’s manager would ask her to respond when she returned. On 7th July 2020 the Complainant again emailed his manager and at around 4pm he met with HR who advised the Complainant the Respondent had decided to terminate his contract with immediate effect. He was told to collect his things, and to leave and not to finish the day. When he asked what the reason was for being let go, he was told it was a 'business decision', and when he asked if it had anything to do with his queries regarding the minimum wage, he was told they could not go into the details of it. 

The Complainant explained that after 11 months of working for the Respondent he never had any problems, and on several occasions was told by his supervisor hisand line manager that he was a very good worker. From the beginning he was given responsibility and told to make sure the other service Valeter who had been there longer, and who had been given multiple warnings, was actually working.

The Complainant submitted that he was made unemployed in the middle of a pandemic in an unexpected way. This caused great stress emotionally and financially as he was unemployed for four and a half months, all the time looking for a new job. He secured new employment on 30th November 2020 at a rate of €12.50 per hour. He submitted a series of job applications he had made over that time.  The Complainant further submitted that he was not entitled to the Pandemic Unemployment Payment as the reason for letting him go was not because of the Pandemic.

The Complainant submitted that a new Valeter was appointed four days before he was dismissed, and following the hearing submitted that the Respondent would have records to support his belief. 

CA-00038583-003 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant withdrew this complaint And acknowledged that he did receive payment in lieu of his minimum notice.                                                                                                        

Summary of Respondent’s Case:

CA-00038583-001 Complaint under section 24 of the National Minimum Wage Act, 2000

The Respondent denied that the Complainant was paid below the minimum wage. 

The Respondent submitted that its Payroll Department confirms the following details in respect of the Respondent for a reference period April to June 2020: April 2020 Hours Worked: 0 Gross Pay: €1430.77 (1-day sick leave was deducted for the previous month); May 2020, Hours Worked: 135 Gross Pay: €1500.00; June 2020 Hours Worked: 173 Gross Pay: €1500.00.  

The Respondent stated the working hours of the Complainant over this period total: 308 hours and the Complainant was paid a total of €4,430.77.  The Respondent therefore maintained the hourly rate of pay for reference period amounts to €14.38 pr hour. The Respondent further suggested that to help support the Complainant and his family the Respondent paid the Complainant for the month of April 2020 despite the fact the Complainant did not attend work due to the pandemic lockdown. 

The Respondent submitted the hours of work recorded for the Complainant.  For reference purposes these are summarised on a monthly basis.  The Average hours worked is based on the time sheets provided. 

On that basis is maintained the Complainant was paid above the minimum wage. 

CA-00038583-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent maintained that it did not unfairly dismiss the Complainant, and that in addition to the Complainant’s contract being terminated, fifteen employment positions were terminated across the Group during the period 27th June 2020 to 31st July 2020. It was submitted that six of these positions were terminated prior to the Complainant’s position being terminated, where three of these terminations related to Valeter contracts. It was also submitted that another Valeter’s contract was terminated on the same day as the Complainant, and a further Valeter’s contract was terminated on 10th July 2020. 

Referring to a letter from the Group Chief Executive that was issued to all staff on 27th March 2020, the Respondent indicated that the reason for the Complainant’s termination of employment was related to Covid-19 and the down turn in the business. The Respondent maintained the Complainant was incorrect in his assumptions about others being employed on or before the day he was dismissed, and the decision was as a consequence of the Covid-19 shutdown.  The Respondent advised it could not get into the detail as to the reason given to the Complainant at the meeting on 7th July 2020 as that was said by the HR person who was not present at the within hearing, but maintained the decision was not related to the pay issues that were raised by the Complainant  

The Respondent maintained the Complainant was an exemplary employee, was not victimised as alleged, and that  his dismissal was nothing to do with the minimum pay matters but was due to the downturn following the Covid-19 Pandemic. 

CA-00038583-003 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

This complaint was withdrawn.

Findings and Conclusions: 

CA-00038583-001 Complaint under section 24 of the National Minimum Wage Act, 2000

This is a complaint pursuant to the National Minimum Wage Act, 2000, as amended. The Complainant has asserted that he was not paid the minimum wage for his average working hours when he compared his monthly payslip to his actual hours worked. At the time of the complaint the national minimum hourly rate of pay was €9.80 per hour up to 1st February 2020, and then €10.10 per hour since 1st February 2020.

The Respondent disputes the complaint and submitted an average work period of three months from April to June 2020 upon which to calculate the hourly rate of pay, maintaining this amounted to €14.38 per hour over that period.

Section 8 of the National Minimum Wage Act 2000, as amended, defines working hours “in relation to an employee in a pay reference period”. Section 10 of the National Minimum Wage Act 2000, as amended, states that “An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month”.

Section 23 of the National Minimum Wage Act, as amended, provides that “(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12-month period immediately preceding the request. Section 23 (2) states An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious. It is further stated in Section 23(3) that A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

Under Section 23(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of Schedule 1,(b) the working hours of the employee calculated in accordance with section 8,(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act. Section 25(5) requires A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.”

It is the Complainant’s evidence that he was concerned about his rate of pay following a cut in his pay since the Covid-19 reduction, and in email from 29th June 2020 he specifically sought clarification on this matter.  Further in an email dated 3rd July 2020 he specifically requested a breakdown of his rate of pay per hour for June 2020, and where he referred to the national minimum wage. I am satisfied that this request meets the Complainant obligations under S 24 of the Act.

The Respondent failed to provide this information to the Complainant in writing in accordance with its obligations as set out under Section 23 of the Act. It is also noted that the Respondent submitted a three-month average to calculate the hourly rate of play.  Such a calculation is not in compliance with the Act.

The Respondent submitted extracts from its payroll and provided a record of the hours worked for the Complainant in the period August 2019 to July 2020. Having reviewed this submission, and based on his hours of work, and the rate of pay over this period, as set out above, I find that the Complainant was underpaid less than the national minimum wage as follows

CA-00038583-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant has less than 12 months services.  However, he maintained that he was dismissed as a result of raising concerns under the national Minimum Wage Act 2000.

Section 36 of the National Minimum Wage Act, 2000 as amended prohibits victimisation of an employee by an employer for the employee having exercised or proposed to exercise a right under the Act.  Section 36(2) of the Act further sets out that Dismissal of an employee in contravention of subsection (1) shall be deemed tobe an unfair dismissal of the employee within the meaning and for the purposes ofsection 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act, 1977, except that it is not necessary forthe employee to have at least one year’s continuous service with the employer andthat Act shall apply as if the Worker Protection (Regular Part-Time Employees) Act,1991, were repealed in relation to the number of hours an employee is normallyexpected to work for the purposes of that Act) and those Acts, with the necessarymodifications, shall apply accordingly.

Section 6(1) of the Unfair Dismissals Act 1977 states that Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.  

I must therefore decide whether the dismissal of the Complainant was as a consequence of raising a concern under the National Minimum Wage Act, or whether there were other substantial grounds justifying the dismissal. 

In considering this matter, the evidence provided supports that the Complainant was viewed as a good employee during his 11 months of employment.  The evidence also supports that as a matter of fact the Complainant first raised formal concerns about being paid below the national minimum hourly rate of pay on 29th June 2022.  His requests for clarification on this matter were not responded to by the Respondent other than instructing the Complainant to work his contractual hours.   He continued to see clarification form his employer, as his employer is obliged to provide in the National Minimum Wage Act 2000 (see above). As a response was not forthcoming, the Complainant advised the respondent he would consider bringing the matter to the WRC. Within a day of submitting this clarification he was dismissed with immediate effect. It is the Complainant’s evidence that when he sought a reason for the dismissal all he was told was that it was a business issue. Furthermore as it was not related to Covid-19 pandemic he could not apply for the Covid-19 Pandemic Unemployment Payment. 

For its part the Respondent has submitted the termination of employment of the Complainant was due to a downturn in its business as result of the Covid-19 pandemic, and that it also terminated some 15 other employees at the time, including Valeters.  The Respondent denied that it employed a new Valeter at or around the time it dismissed the Complainant, and that it would move staff throughout the group as the business requires.  It therefore maintained that the Complainant’s job was terminated for business reasons.  In response to the comment the the Complainant was not given a reason other than it was a business decision, the HR person who is alleged to have said this was not present at the within hearing. However, it is a matter of fact that the Complainant received a letter dated 7th July 2020 referring to the meeting and that the Group HR Generalist stated at the start of the letter Refer our [ sic] meeting today whereby I terminated your contract of employment for business reasons.

Whilst it is not disputed is that fifteen other employees’ roles were terminated between 27th June and 17th July 2020, including Valeters. It is not clear whether these terminations are comparators to the Complainant in that their job was also due to a business downturn. Neither is it provided in evidence that they were treated similarly to the Complainant in that they were called to a meeting, told their job was terminated without prior notice, and that the only reason given for the dismissal occurring was for business reasons.

Given that the Respondent is choosing to rely upon the downturn in its business due to the impact of Covid-19 to justify the dismissal, I am compelled to consider the letter from the Group Chief Executive of 27th March 2022.  This letter is compassionate in nature and clearly sets out the concerns the most senior person in the business had, and explained the steps the business was considering to ensure the safety and wellbeing of its employees, customers, and communities.  The letter further reassures its recipients that the Respondent’s actions have allowed it to retain 98% of its team.  It further states that a member of the management team will contact any staff impacted by job losses over the coming days. The letter ends by ensuring staff that the Respondent is doing and will continue to do all that it possibly can to support employees during these changing times.

The Complainant’s experience was that following this letter his job appeared secure where he was being asked to continue with his contracted hours when he returned from the lockdown period in April and May 2020. Indeed, at this time he anticipated being informed that he was to be made permanent.  However, within a matter of days of raising a legitimate concern relating to the minimum wage Act he was dismissed without any prior notice.

Based on this evidence there does not appear to be any substantial grounds to support the submission that the Complainant’s job was in fact at risk and as a consequence his contract was due to be terminated at that time.  Regard has to be given to the Group Chief Executive’s reassurances that a member of the management team would contact those impacted by job losses.  The Complainant was never contacted in advance. It seems remarkable that in the circumstances where significant sensitivity and awareness existed nationally and indeed from the Group Chief Executive about managing the impact of Covid-19, that a decision would have been made to terminate the Complaint’s role without notice. What is equally remarkable is that when he sought the reason for the termination of his employment, he was told it was for business reasons, and no further explanation could be given to the Complainant then, or to me at the within hearing.

I therefore conclude that but for the Complainant seeking clarification about whether he was in receipt of the minimum rate of pay, he would not have been dismissed. His dismissal occurred within day of the Complainant advising the Respondent that he would raise his concerns with the WRC. No other reasonable ground has been provided and corroborated by the Respondent for the dismissal to have taken place, particularly in the manner the decision was executed. 

I therefore find that contrary to Section 36 of the National Minimum Wage Act, 2000 that the Respondent has victimised the Complainant for having exercised or proposed to exercise a right under the Act, and as such I uphold that the Complainant was unfairly dismissed. 

CA-00038583-003 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

This complaint was withdrawn by the Complainant.

Decision:

CA-00038583-001 Complaint under section 24 of the National Minimum Wage Act, 2000

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act, and in accordance with Section 26 of the National Minimum Wage Act 2000 as amended.

As I have found the Respondent has underpaid the Complainant, and in circumstances where the Respondent both failed to meet its obligations under S23(4) of the Act by not providing the Complainant with a statement in writing, in addition to incorrectly calculating the rate of pay over a three-month period contrary to Section 10 and submitting same in its response to the within complaint, I direct the Respondent to  pay the Complainantan award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount per each month period as calculated above, and amounting to €1,970.76, and that this matter be rectified with immediate effect from the issuing of this decision.

CA-00038583-002 Complaint under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded.

Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer;  the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid.  I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

In circumstances where I have found the Complainant was summarily dismissed at a meeting without any prior notice, and in circumstances where he had sought clarification on his wages in accordance with his rights under the Minimum Wage Act, 2000, I find that by its acts the Respondent is solely responsible for the losses incurred by the Complainant. The manner of informing the Complainant of his dismissal was callous, and it was gratuitous of the Respondent to suggest it was for business reasons relating to Covid-19 in circumstances where the Group Chief Executive had only a few months earlier provided reassurances to staff. The Group Chief Executive had also identified the steps that would be taken by management to contact staff impacted by job losses, but this step was ignored by the Complainant’s managers.  For his part I find that the Complainant tried to mitigate the losses by seeking alternative employment and was fortunate to get new employment within 5 months of the Unfair Dismissal.

Therefore, I consider it just and equitable in all the circumstances to award the Complainant €10,000 (subject to any lawful deductions) to address his loss of current and future earnings which has occurred as a sole consequence of the Unfair Dismissal of the Complainant for seeking notification of his earnings under the National Minimum Wage Act 2000. 

CA-00038583-003 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

This Complaint was withdrawn by the Complainant.

Dated:   November 24th2022

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Key Words: