Complainant

Respondent

Parties

Jennifer  O'Toole

Applus Inspection Services Ireland Ltd National Car Testing Service

Representatives

Paul Twomey BL Kate McMahon & Associates

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-00044005-001

11/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044005-002

11/05/2021

The Complainant is employed as a VRT administrator since 1st March 2017.

The Complainant was employed to work Fridays and Saturdays and was paid non-core rate from March 2017 to March 2019. The Complainant noticed her wages had been reduced and following enquiries was told she had been paid the incorrect rate for Fridays which is core hours. There was no consultation or explanation. However, the rate of pay for the other admin workers who worked for another section remained the same. The work of the Complainant is more difficult and demanding. Due to HR and other personnel changes it was difficult to resolve the issue. The difference in the hourly rate between core and non-core hours is €3.15. The Complainant is owed the difference for 114 weeks at 11.30 hours €4,058.00.

The Complainant also complains that she has not been paid for days owed including a shift on 27th March, 23rd June, 27th July and 1st September 2020 and 4 bank holidays. The Respondent was on the TWSS scheme at the time which they exited August 2020. She followed up with various managers and HR during the period, and escalated this to various levels.  She is not satisfied that she has been paid correctly during this period and would like a full review of her wages going back to March 2020. Her queries led to further underpayments coming to light.

The Complainant believes that non-core staff are paid the non-core rate on Fridays and she believes she should get this too. The Complainant is not comparing her wages per hour to the non-core full-time staff. The Complainants contract of employment refers to different rates of pay for core and non-core hours however, the days are not specified. The Complainant has submitted a copy of the roster for 2021 showing core hours for staff Monday to Thursday and non-core hours for the remaining days. The Complainant has lost out of pension tax relief as a result of her reduced earnings.

The Complainant accepts the name of the Respondent has been changed from Applus Care Testing Services Ltd to Applus Inspection Services Ireland Ltd and consents to the change of name.

The Respondent says the correct name of the company is Applus Car Testing Services Ltd and consents to the change of name to the correct name of the Respondent.

The Respondent says CA-00044005-002 is withdrawn by the Complainant as it has been resolved. It is out of time as it relates to the period up to September 2020.

The Respondent says the first complaint is statute-barred as it is out of time and dates back to April 2019. It refers to a deduction of €4,058.00 which is 3.15 per hour @11.5 hours on Fridays for 114 weeks commencing in April 2019.

Without prejudice to the foregoing, the Respondent says all other part-time administration staff working in the centres receive the core rate of €14.08 per hour for Monday to Friday 8am to 8pm, Saturday 8 am to 12.30 and non-core rate of €17.19 per hour for hours outside of this. This is agreed with SIPTU.

From the time the Complainant commenced employment, she was paid “non-core” rate of €17.19 for all hours which was an error. This was identified in April 2019 when the Complainant’s rate of pay was corrected.

The Complainant seeks to compare her wages per hour to the non-core full-time staff who work Fridays but not to the core full-time administration who earn the lower rate of pay for working Fridays. VRT administration staff are not paid the same as full-time NCT administration staff who are on an annualised salary structure.

The Respondent says the payment must first be properly payable and relies on Dublin Airport Authority v J Bacon ADJ-00024483 the Labour Court confirmed the first exercise is to assess what wages are properly payable before assessing whether there has been a deduction from them. The Respondent refers to the Complainant’s contract of employment which confirms the hours of her shifts and the relevant rates of pay for each. The Respondent submits the Complainant was in fact overpaid for the period March 2017 to April 2019.

The Respondent says the Complainant has been paid her correct rate for each hour of her shift in line with her contract of employment. Therefore, there has been no deduction and the sum sought is not properly payable within the meaning of the Payment of Wages Act 1991.

I have considered carefully the written and oral evidence of the parties.

I drew the parties attention to my prior knowledge of a witness of the Respondent. Both parties consented to my hearing the complaints.

CA-00044005-002 regarding unpaid holiday leave was withdrawn by the Complainant.

As the Complainant did not have adequate notice of the Respondents submissions, she was given an opportunity to furnish a written submission to the Workplace Relations Commission. The Respondent was also given an opportunity to make a further written submission following the hearing.

Preliminary issue

The Respondent raises a preliminary issue that the complaint is statute-barred as it relates back to April 2019, as the complaint form was received by the Workplace Relations Commission on 11th May 2021. The Complainant is unrepresented and says the breach is ongoing.

S41(6) of the Workplace Relations Act 2015 provides that an Adjudication Officer shall not entertain a complaint referred to her if it has been presented to the Director General after the expiration of six 6 months beginning on the date of contravention to which the complaint relates.

Mr. Justice Hogan in Health Service Executive v John McDermott [2014) IEHC sets out the rolling time-limit which applies to contraventions of the Payment of Wages Act 1991. The judgement says a complaint to the Workplace Relations Commission of a deduction from wages may be time-barred if it relates to a time period which is not within the six month time-limit following the deduction. The complaint seeks payment of deductions of €4,058.00 of €3.15 for 11.5 hours over 114 weeks. This complaint was raised by the Complainant and remains unresolved since April 2019.

My jurisdiction allows consideration of complaints of contraventions which occurred within six months of receipt of the claim form on 11th May 2021.

S5 (1) of the Payment of Wages Act 1991 provides

 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….

The Complainant says since she was employed on 1st March 2017 as a part-time VRT administrator she had been paid non-core hours when working on Friday and Saturday at a rate of €17.19 per hour. This is the same rate as her colleagues on site in NCT administration. This was unilaterally reduced without warning or agreement in March or April 2019 giving her a weekly loss of €3.15 for 11.5 hours weekly, totalling €36.23. She has objected to the change.

The High Court in Balans v Tesco Ireland Limited [2020] IEHC 55 states the first matter that should be addressed is to determine what wages are properly payable under the contract. The Complainant has provided extracts from her contract of employment which refers to a difference in rate of payment for core hours and non-core hours. However, the Complainant’s extracts from her contract of employment does not specify what days are core days and non-core days.

The Respondent’s witness gave evidence that all VRT administration staff in the Complainant’s section are paid the same rate which is a non-core rate after 8am to 8pm, and 12.30pm on Saturdays, this is standard for all 48 sites. He said there was an error made when a manager applied the incorrect rate for the Complainant. The correct payment structure was applied in April 2019.

The Complainant complains that she is not paid a rate commensurate with payment of NCT administration staff. The Complainant is employed as a part-time VRT administrator. For the period 12th December 2020 until 11th May 2021, I find the Complainant was paid the correct rate applicable to her position as part-time VRT administrator.

The complaint is not well founded.

The complaint is not well founded.

Incorrect pay rate, unilateral reduction of wages, error in wages