Complainant

Respondent

Parties

Yvonne  O'Byrne Kearns

Lmetb

Representatives

William Hanly O'Flynn Exhams LLP Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00053354-001

19/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00053354-002

19/10/2022

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

CA-00053354-004

19/10/2022

The Complainant made the following claims:

1. CA-00053354-001 - A claim pursuant to Section 7 of the Terms of Employment (Information) Act 1994

1. CA-00047504-002 - A claim pursuant to Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I No 36 of 2012

1. CA-00047504-004 - A claim pursuant to section 6 of the Payment of Wages Act, 1991.

The Complainant is a former employee of the Respondent. The claims relate to the Complainant’s employment by the Respondent delivering courses to students studying Beauty Therapy as part of the Further Education Programme from the 30th of August 2021 to the 3rd of June 2022. The Complainant contended that she was not provided with a written statement of her terms and conditions of employment in a timely manner in accordance with the provisions of the Terms of Employment (Information) Act 1994. She further claimed that she was underpaid at the incorrect rate for the work she did and that such underpayments constituted an unlawful deduction within the meaning of that term in the Payment of Wages Act 1991 and she sought to recoup such allegedly unlawful deductions.  

The Complainant delivered written submissions and oral submissions at the hearing. She gave evidence on affirmation.

The Complainant was employed by the Respondent from the 30th of August 2021 to the 3rd of June 2022 delivering third level courses in Business and Beauty Therapy.  

The Complainant alleged that the Respondent breached the Terms of Employment (Information) Act 1994 in that she did not receive written terms of employment within the time prescribed by the Act. 

On Day 2 of the Hearing the Complainant clarified that she was not pursuing that part of her Claim under the Payment of Ages Act which related to back-pay for the weeks 29th of August 2022 to the 20th of September 2022. However, she wished to proceed with the balance of that claim which related to underpayments of her remuneration at what she alleged to be, the incorrect rate. 

The Complainant said that she was not given a contract until June 2022 despite repeated requests. When the contract was received, it clearly stated that the Complainant would be paid as a qualified teacher. The contract in question was significantly different to previous contracts where the words “Qualified teacher of BEAUTY” did not appear. The Complainant was not paid at the Qualified Teacher Rate and she alleged that she was underpaid for the full year as a Tutor, and not a qualified Teacher of Beauty as per the contract she eventually received after her employment finished.

The Complainant acknowledged that she accepted the position described in the letter of offer as “Tutor”. However, she contended that immediately following her acceptance she was asked to reduce the Beauty Hours to take more Business hours, therefore her role had changed. In a conversation in 2020 with the Vice-Principal of the School where the work took place, the latter told the Complainant that if she was given Business hours, the Beauty hours could be added to them, to be paid at a qualified teacher rate.

The Respondent accepted that it did not issue written terms of employment to the Complainant in a timely manner and an apology was made to the Complainant in this regard.

An issue regarding back-pay was resolved between Day 1 and Day 2.

Regarding the Complainant’s allegation that she was underpaid for the entire period of employment at the incorrect lower Tutor Rate, the Respondent relied on Department of Education and Skills Circular Letter CL 0052/2013 and in particular Paragraphs 2.2 and 2.4 which, it was contended, designate the Beauty Module which the Complainant was teaching as being taught by a “Tutor” and the post delivering the module was classified as a tutor post. Accordingly, despite the fact that the Complainant is (and was at the material times) a qualified Teacher, she could not, it was contended be paid at the Teacher Rate.

The Respondent contended that the job advertisement in relation to the relevant position was for a “Tutor of Beauty Therapy” and the same description of the position was set out in the offer 25th of June 2021 and the acceptance signed by the Complainant on the 30th of June 2021. The role therefore which the Complainant performed was, in every sense, a tutor role and she was paid correctly in accordance with the Tutor Rates. The Respondent is obliged to follow the Circular Letter and is not in a position to pay anything higher than the Tutor Rate for the Complainant’s role in beauty therapy regardless of her qualifications. 

The Respondent called one witness, Ms Imelda Brehony its Head of H.R. who gave her evidence on affirmation.

CA-00053354-001 Terms of Employment

Section 3 (1) of the Terms of Employment (Information) Act, 1994 (prior to its amendment in December 2022 which post-dates the issues in this case) provided (where relevant) that: 

“(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing…particulars of the terms of the employee's employment”

The Complainant commenced employment delivering the Beauty Therapy in August of 2021 and her employment ended in June of 2022.  The Complainant requested a contract in March of 2022 but it was agreed by the parties that she did not receive a contract until the 14th of July 2022 by which time she was no longer employed by the Respondent. Even then, that contract was not signed by the Respondent and it was not until September 2022 that the Complainant received a contract signed by the Respondent.

The Complainant was entitled to receive a written statement of her terms and conditions of employment. In accordance with Section (3) this statement should have been provided automatically. It was not. Instead, the Complainant had to request a contract of employment in relation to the Beauty Therapy course on several occasions. She said that she needed the contract to forward to a lender with a view to securing finance for the purchase of a family home and that the failure to provide the contract caused her stress and inconvenience, as did the fact that several contracts were sent and she had to request the correct contract which resulted in further avoidable delay. The Respondent admitted that the contract was not sent automatically, and that the Complainant did make several requests for it. Whilst not admitting that stress and inconvenience had been caused, the Respondent was not in a position to controvert the Complainant's evidence in this regard.

I find that the Respondent breached of Section (3) of the Act and that the Complainant did suffer stress and inconvenience as a result of the failure to provide her with a statement of terms and conditions of employment.

In relation to redress for this breach, I deem an award equivalent to four week’s remuneration at €714.72 per week, i.e. €2,858.89 to be a just and equitable sum to compensate the Complainant. The Respondent is therefore directed to pay the said sum by way of non-remuneration-based compensation. 

CA-00047504-002 Breach of S.I. No. 36 of 2012

The  European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I No 36 of 2012 have no application to the present case. This claim is not well-founded.

CA-00047504-004 Payment of Wages

Time Limit

The first issue that arose related to the time limits applicable to the Payment of Wages Act claim.

The Complainant’s complaint form was received by the WRC on the 19th of October 2022. Thus, the normal limitation period of six months is capable of capturing any unlawful deductions which may have occurred in the six-month period immediately preceding the 19th of October 2022, i.e. going back to the 19th of April 2022. The Complainant sought an extension of time pursuant to Section 41 subsection (8) of the Workplace Relations Act 2015 to the maximum allowable limit being a further period of six months to capture any underpayments in the full twelve-month period from the 19th of October 2022, i.e., going back to the 19th of October 2021. Pursuant to this provision the time limit can be extended on the basis of reasonable cause. Such an application was made by the Complainant and opposed by the Respondent.

It would have been practically impossible for the Complainant to make her present claim with any specificity unless and until she received written terms of employment. In this case the Complainant did not receive any contract until after her employment had ended.  I am satisfied that these circumstances constitute reasonable cause to extend the time limit applicable to the Complainant’s claim to the maximum twelve-month period preceding the initiation of the claim and thus the period of review in relation to any alleged unlawful deductions runs from October 2021 up to the end of the employment in June 2022.

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 term “unlawful deduction” under Section (5) was considered in the High Court decision in MarekBalans v Tesco Ireland Limited [2020] IEHC 55 which decision was subsequently applied by the Labour Court in Department of Justice v. Switzer PWD2325 (decision dated the 31 October 2023) as follows:

“The High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55 made clear that this Court, when considering a complaint under the Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction within the meaning of the Act had been made. If it is established that a deduction within the meaning of the Act had been made, the Court would then consider whether that deduction was lawful.”

The relevant clauses of the contract (with emphasis added) are as follows:

“2. Title of Post

Qualified teacher of BEAUTY…

…16. Remuneration

The salary scale attaching to the position is the teachers’ common basic scale together with appropriate allowances if applicable.”

The Complainant contended that her remuneration throughout the period of employment covered by the contract was not at the Teacher Rate and she alleged that the remuneration which she received was an underpayment which was not in accordance with her contract and was an unlawful deduction for the purposes of the Payment of Wages Act 1991.

The Respondent’s Head of HR in her evidence, very fairly accepted that the words in the contract quoted above, although clearly contained in the contract as furnished, should not have appeared in the contract. In keeping with this position, the Respondent maintained that the correct rate for Beauty Therapy is set by the Department of Education and Science and is inflexible and beyond its control. In this regard the Head of HR said that the rate is set at the Tutor Rate and that the Respondent had and has no flexibility to amend this rate which was set in a Circular Letter from the Department of Education and Science (CL 0052/2013).

For her part the Complainant said that she did not agree with the classification of her work as being that of a Tutor. She pointed out that she is a qualified Teacher and she contended that that qualification entitled her to be paid at the Teacher Rate. She argued that the words “Teacher Rate” were clearly written in the Contract, and she understood that this was the rate at which she was to be paid.

There are many cases which have been decided where a clerical error has been made in a contract such that the rate set out in the contract has not been deemed to be the rate properly payable as it did not reflect the intention of the parties. However, in the present case I find that what occurred goes beyond a clerical error. The remuneration term was fundamental, and the Respondent had ample opportunity during the currency of the employment (given that the contract issued after the employment had ended) to get it right but still failed to do so. Added to this is the Complainant’s understanding as to what she was agreeing to before she took up the duties of the role. The Complainant gave evidence of a discussion with the then Vice-Principal which, she said, gave her the understanding that she would be paid at the qualified teacher rate. The Respondent did not controvert this evidence. Although it was common case that the offer and acceptance both contained the role- description as that of “Tutor”, I find that the contract must take precedence over these documents as being the final document setting out the terms of employment. This document unequivocally uses the words “Qualified Teacher” and the remuneration clause clearly states “teachers’ common basic scale”. As regards Circular Letter CL 0052/2013 upon which the Respondent relies, this is not referred to in the contract nor is there any evidence that its existence and import were brought to the Complainant’s attention during her employment. As such I find that the Respondent cannot in all of the circumstances rely on this Circular and that the rate “properly payable” in this employment was the higher Qualified Teacher Rate. Accordingly I find that unlawful deductions were made from the Complainant’s renumeration as calculated below between from the 19th of October 2021 to the end of the Complainant’s employment in June of 2022.

In making the foregoing finding I wish to make it clear that noting in this decision should be construed as a finding of any sort as to what rate of pay is applicable generally to individuals who are providing courses in Beauty Therapy nor does this decision purport to rule on the fairness or otherwise of the designation of the applicable rate of pay at Tutor Rate for such courses by the Department of Education or any other body. The decision made in this case turns on its particular and most exceptional facts and is applicable only to the work done by the Complainant for the Respondent from the 19th of October 2021 to the end of the Complainant’s employment in June of 2022, which, for the avoidance of doubt should have been paid at the Qualified Teacher Rate.

Redress

The Respondent whilst not accepting the Complainant’s allegation of underpayment nonetheless very helpfully provided figures to facilitate a calculation of the differential as between what was paid and what would have been paid at the Qualified Teacher Rate.

The Complainant was paid at the tutor rate in the sum of €43.84 per hour for a 14.67-hour week. In the period from October 2021 to January 2022 the Teacher Rate was €45.73 per hour yielding a differential of €1.89 per hour or €27.72 per week over 18 weeks which yields a total underpayment for this period in the sum of €499.07

From February 2022 up to the end of the Complainant’s employment in June 2022 the Teacher Rate increased to €48.72 which yields a differential of €4.88 for 14.67 hours per week which is a total weekly differential of €71.59 per week over a 20 week period which yields a total underpayment for this period in the sum of €1, 431.79.

Accordingly the total underpayment for the twelve month period immediately preceding the delivery of the WRC Complaint form stands at €1,930.86. I find that this underpayment represents an unlawful deduction from the remuneration which in the circumstances of this case was properly payable under the Complainant’s contract and the Respondent is directed to pay the said sum by way or remuneration to the Complainant.

CA-00053354-001 - claim pursuant to Section 7 of the Terms of Employment (Information) Act 1994.   The Complaint is well founded. The Respondent is directed to pay the sum of €2,858.89 to the Complainant by way of non-remuneration related compensation for breach of the Act. 

CA-00047504-002 - claim pursuant to Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I No 36 of 2012 – the Complaint is not well-founded

CA-00047504-004 - claim pursuant to section 6 of the Payment of Wages Act, 1991 - the Complaint is well-founded. The Respondent is directed to pay the sum of €1,930.86 to the Complainant by way of remuneration.

Payment of Wages Act 1991 Section (5) – Section (6) – Time Limit – Extension of Time - Workplace Relations Act 2015 - Section 41 subsection (8) – reasonable cause – extension granted - Unlawful deduction - CL 0052/2013 - Balans v Tesco Ireland Limited [2020] IEHC 55  - Department of Justice v. Switzer PWD2325 - Terms of Employment (Information) Act, 1994 -  Section 3 (1)