Complainant

Respondent

Parties

Maureen  Carolan

Walgreens Boots Alliance Boots

Representatives

  Self

Grace O'Malley Ibec

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-00056197-001

19/04/2023

The Complainant made one claim CA-00056197-001 - A claim pursuant to section 6 of the Payment of Wages Act, 1991 - albeit that there were several components to this claim.

The Respondent is an international pharmacy-led health and beauty group. The Complainant was employed in the capacity of Customer Assistant in the Respondent’s Dundalk store from the 15th June 2022 on a fixed term contract until the 31st of August 2022. She was offered a further fixed term contract from the 31st of August 2022 to the 6th of January 2023. On the 1st of November her hours were changed temporarily from 20 hours per week to 37.5 hours per week until the 7th of January 2023. The claimants last day of employment was the 7th of January 2023. The Complainant alleged that she was underpaid and sought to recoup the shortfall by way of unlawful deduction.

The Complainant submitted a complaint form and made oral submissions at the hearing. She gave evidence on affirmation.

The Complainant did not understand the terms “Units” as used by her line manager with reference to her hourly rate of pay. She was concerned that she had been underpaid for work done due to an alteration in her weekly hours from 20 hours per week to 37.5 hours per week leaving her with a shortfall in her remuneration.

The Respondent accepted that the Claimant is owed the sum of €369.15 gross. The Store manager Debbie Murdock explained to the Claimant that she was paid in full for December 2023 which was correct. Even with the early cut-off date, all rostered hours for the month of December 2022 were paid on the 21st December 2022.

The Respondent reviewed the hours and pay and did not dispute that when the contract changed from 20 hours per week to 37.5 hours, the Complainant’s pay was not processed correctly for the November 2022 payroll which resulted in an underpayment of 31.31 hours. The Respondent apologised for this error and has made several attempts to arrange payment of the monies owed.

Prior to the hearing, the Respondent sent a letter to the Claimant regarding review of hours and seeking to pay €31.31 hours rather than 20 hours as claimed for. The letter with a document attached for payment details was sent by standard and registered post and by email with a second follow up email sent. There was no response from the Claimant.

In conclusion, the Respondent acknowledged that the Complainant is entitled to a payment in the amount of €369.15 arising from an internal miscalculation. The Respondent has made several attempts to contact the Complainant to process the monies owed, without any success due to lack of response from her.

Unlawful Deduction by Way of Underpayment at the Incorrect Lower Rate

The Payment of Wages Act 1991 at Section 5(1) provides as follows:

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.

Section 5(6) of the Act provides:

5 (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.

The interpretation of the above provisions requires that the amount properly payable to the Complainant must first be ascertained and then any amounts not properly paid will be deemed unlawful deductions which can be recouped.

I note the explanation provided to the Complainant at the hearing, by reference to the letter issued to her following receipt of the claim, that the units per month depend on her contracted hours per month. It is worked out by multiplying the contracted hours per week by 52.14 weeks in the year, divided by 12 months of the year to give the salary hours for the month.

The Respondent’s representative took the Complainant through the calculations which had been made by the Respondent which, when fully worked through revealed that the Complainant had been underpaid in the sum of €369.15 due to a computational error in adjusting her monthly hours for November and December 2022 to reflect the increased working time from 20 hours per week up to 37.5 hours per week. I note that the Complainant, having heard and understood the Respondent’s explanation, accepted that she had been underpaid in the amount of €369.15. I further note that the Respondent very fairly acknowledged this fact in correspondence prior to the hearing as well as at the hearing. I further note that the Respondent has been making efforts to arrange the payment of this amount to the Complainant. In such circumstances I will make a finding that the amount of €369.15 was unlawfully deducted from the Complainant’s wages and the Respondent will be directed to pay that amount to the Complainant pursuant to the Payment of Wages Act 1991 and to that extent the complaint is well-founded.

The Complainant made an additional allegation at the hearing which was not in her complaint form and came as a surprise to the Respondent. The Complainant said that she had made an arrangement with her then Store Manager that she, the Complainant, would undertake training courses online to improve her working knowledge and that she could undertake such courses on her own time beyond work hours. The Complainant said that it was her understanding that she would receive a non-cash benefit to compensate her for the additional time which she says she spent undertaking this online training. The Respondent’s position was that it had a policy whereby any and all in-house training was done during working hours and was compensated as normal working hours and that no arrangements were authorised, or to its knowledge had been made, for undertaking training courses beyond work time. Further no authorisation was given to any local manager to compensate for such time whether by way of non-cash compensation or otherwise. The Complainant clarified that the non-cash compensation which, she said, had been agreed with her then line manager was to take the form of a fragrance of the Complainant’s choice up to a value of €300. However, the Complainant was not in a position to adduce any documentary evidence supporting her contentions in this regard and this fact combined with the Complainant’s failure to refer to this issue at any time prior to the end of the adjudication hearing leads me to conclude that there is insufficient evidence to support the assertion that the non-cash consideration contended for was “properly payable” for the purposes of the Payment of Wages Act 1991. Accordingly, this aspect of the Complaint is not well-founded.

CA-00056197-001 - claim pursuant to section 6 of the Payment of Wages Act, 1991 - the complaint is well-founded in part. The Respondent is directed to pay the sum of €369.15 to the Complainant by way of remuneration.

Payment of Wages Act 1991 Section (5) – Section (6) - Unlawful deduction