Complainant

Respondent

Parties

Dawid  Czajka

Fedex

Representatives

 Eversheds Sutherland Ll.P

Act

Complaint Reference No.

Date of Receipt

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

CA-00055610-001

20/03/2023

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

CA-00055611-001

20/03/2023

The complainant raises two issues about overtime and Sunday premium.

He says that the premium rate he was previously paid, double time has been reduced to time and a half and that this change occurred with effect from February 23rd, 2023.

In his submission, he says the problem is that for thirteen years, he was paid for work on Sunday, which started at 00:00 and finished on Monday at 09:00, he was paid at double time, and for a month  suddenly got paid ‘time and a half’.

He outlined the takeover of the company (which is set out in greater detail in the respondent ‘s submission below).

He believes that he is still an employee of the former company TNT and that he should enjoy the previous rates and system of payment.

Mr. Dawid Czajka is an employee of FedEx Express Ireland Limited since April 26th,  2010. The respondent entity was previously known as TNT Express (Ireland) Limited. On December 1st,  2021 the employees and assets of FedEx Express Ireland Limited transferred to TNT Express (Ireland) Limited and TNT Express (Ireland) Limited was renamed FedEx Express Ireland Limited.

FedEx Express Ireland Limited was renamed FedEx Express Ireland Transportation Limited on the Transfer Date and was placed into liquidation on 21 July 2022. The result of this merger was one single employing entity in Ireland and the complainant is employed by FedEx Express Ireland Limited.

In advance of the Transfer Date, the respondent began an exercise to harmonise the terms and conditions of the employees. The complainant attended an integration consultation meeting on  December 23rd, 2019, where the first stage of the harmonisation exercise was discussed. This involved the role titles of TNT (Express) Limited employees being changed to their equivalent role title within the respondent.

This stage of the exercise resulted in annual leave entitlements being extended to employees of TNT Express and the complainant’s annual entitlement was increased from 25 to 28 days per annum.

The complainant received an announcement in relation to the merger of the two entities on December 1st, 2021. On June 8th, 2022, the complainant attended a second consultation meeting with his line manager, Noel Kealy where the next stage of the harmonisation exercise was discussed. During this meeting, Mr. Kealy explained that his terms and conditions would be aligned with that of the respondent and outlined the impact this would have on his terms and conditions.

Mr. Kealy explained that the overtime rates applicable to all employees would now be time and a half, Monday to Friday and double time only on a Sunday. Previously, the complainant had been receiving time and a half for the first four hours of overtime and double time thereafter Monday to Saturday and double time on Sunday.

In addition, the complainant’s employer pension contribution would be increased to 7% and backdated to May 1st, 2022. Previously , he  would have needed twenty years’ service to receive. He currently has 13 years’ service.

He could sign up to the respondent’s VHI health insurance plan with the cost covered by the respondent. TNT Express (Ireland) Limited did not offer health insurance to employees. He could now avail of one week’s paid paternity leave. Only three days’ of paid leave were offered by TNT Express.

The respondent offered the equivalent of €3,000 towards further education. TNT Express (Ireland) Limited did not offer this benefit and his sick pay entitlement would increase to 80 days full and 80 days half pay. Previously he was only entitled to 20 days sick pay.

The complainant is paid every fortnight and receives €250.93 in shift allowance every payroll cycle. The respondent’s policy is that shift allowance is paid only on hours worked between 10pm and 6am. As the complainant and his colleagues would have suffered a loss if the respondent’s policy was implemented, the complainant’s shift allowance was preserved in a ‘red circled’ arrangement.

The complainant received an integration letter outlining the proposed changes following the integration meeting on 8 June 2022 .

The respondent submits that the complainant did not challenge the proposed changes to his terms and conditions during this meeting and raised no questions during this meeting.

SIPTU is the recognised trade union in TNT Express (Ireland) Limited, and the respondent provided the union with a statement outlining the proposed changes that would apply to employees on 28 July 2022. SIPTU organised a ballot which took place on 13 September 2022.

SIPTU members communicated by way of a WhatsApp group. The complainant was a member of that group and requested a copy of the position statement. It was confirmed in WhatsApp communications that the option of a postal ballot had been requested if a member required it.

The ballot took place on 13 September 2022 and 75% of SIPTU members voted in favour.  SIPTU wrote on October 28th, 2022, confirming acceptance.

The majority of the harmonised terms and conditions were implemented immediately following the ballot on  October 28th, 2022. The increase in sick pay was effective from  January 1st,  2023 and the  overtime policy came into effect from  February 1st,  2023. The increased pension contribution will come into effect from August 2023.

The respondent contacted the legacy TNT Express (Ireland) Limited managers on  January 26th, 2023, with a timeline for the implementation of the remaining terms and conditions.

On February 28th, 2023, the complainant raised the change in overtime rates. The respondent replied on  March 1st, 2023, confirming that he would be invited to a grievance hearing.

The respondent submits that the complainant delayed on agreeing who would support him as a translator within FedEx during his grievance hearing. The grievance meeting took place on 26 June 2023 and the outcome of same has not yet been communicated to him.

It is the respondent’s submission that from June 8th, 2022, the complainant was aware of the harmonisation exercise and how this would impact on his terms and conditions. He raised no issues in relation to the proposed changes.

The complainant was aware of the SIPTU ballot that took place ten months earlier, on September 13th, 2022, and the result. If it is the case that the complainant did not take part in the SIPTU ballot, he had the opportunity to request a postal ballot and chose not to do so. Given the level of consultation and where the changes were subject to a SIPTU ballot the complaint is not well founded.

The harmonisation project resulted in an enhancement to his terms and conditions of employment. The objective of the harmonisation project was to try to ensure that groups of employees are on the same terms and conditions. A finding in favour of the complainant, would result in a disparity between the Respondent’s employees.

Without prejudice to the foregoing, Section 6 of the Payment of Wages Act 1991 states that if a complaint is well founded, an Adjudication Officer shall: ‘include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances.’ (emphasis added).

If the Adjudication Officer was to find in favour of the Complainant, the respondent respectfully submits that it would be unreasonable of the Adjudication Officer to award compensation in circumstances where the complainant has benefited and continues to benefit from additional changes to his terms and conditions as outlined at sections 3.2 and 3.6 above.

This case was first heard on July 19th, 2023 and was adjourned partly because of translation problems but also to enable the parties to seek a better understanding of each other’s position.

No conclusion date was set for those discussions because of annual leave commitments of parties, but it was agreed that the WRC would be contacted in due course when that process was exhausted and advised whether it would be necessary to resume the hearing or that a decision should issue on the basis of the submissions already made.

In fact, nothing further was heard from either party until December when the complainant made contact to say that he wished a Decision to issue.

The circumstances of the takeover are well set out in the respondent’s submission and were not contradicted in any detail by the complainant apart from the assertion that appears on the complaint form to the effect that he considers himself to continue being in the employment of the transferor.

As a matter of fact, and legal reality, this is not the case. The process by which the transfer took place is set out above in considerable detail and it is obvious that there was an extensive process of consultation with the employees and their union about the detail of the transfer.

In the context of this complaint, it is also interesting to note that some very significant benefits for the company’s employees flowed from the transfer which probably accounts for the overwhelming (75%) acceptance of the proposals in a ballot conducted by the workers’ trade union, SIPTU. (The complainant’s assertion on the complaint form that the changes resulting from the transfer were ‘mainly for the worse’ is not supported by the facts.)

Despite all of this the complainant says that he has been disadvantaged by the arrangements for payment for working on a Sunday and in two separate complaints asserts that there has been a breach of the Payment of Wages act, 1991.

The respondent says that the position was fully explained to him at a meeting on June 8th, 2022, by Mr. Kealy, his manager, (who also gave evidence to that effect at the hearing). The following is from the respondent’s submission above.

Mr. Kealy explained that the overtime rates applicable to all employees would now be time and a half Monday to Friday and double time only on a Sunday. Previously, the complainant had been receiving time and a half for the first four hours of overtime and double time thereafter Monday to Saturday and double time on Sunday.

The company submits that the previous overtime arrangement was not a contractual one, and, while it did not make this argument specifically, by implication can be varied as part of the collective bargaining process.

While I note this argument, a complainant bringing a complaint under statute is not bound by the outcome of collective bargaining arrangements if he can successfully argue that there has been a breach of statutory rights, in this case by means of an unlawful deduction from wages as prohibited by the Act in respect of a sum that is properly payable.

The question to be considered, therefore is whether a variation of the circumstances in which premium payments are paid represents the deduction of wages, properly payable and represents a breach of the Act.

The complainant’s statutory Statement of Terms and Conditions of Employment (which bears his signature and is dated April 26th, 2010) defines his working hours as 4.30pm to 1.00 am and 6.30pm to 3.00 am and states that these may be ’subject to change’. The only reference there to any other payment is to a shift premium of 23%.

There is no mention in the statutory Statement to rates payable for Sunday, or more accurately how they would be applied.  It is not in dispute that payment for work on a Sunday would continue to be at double time or that the complainant‘s shift premium would be unaffected.

The actual change in the complainant’s position appears to be that double time will not ‘kick in’ after four hours but he would continue to be paid at time and a half for the full duration of overtime working. The question is whether this arrangement forms part of his wages as defined in section 1, the ‘Interpretation’ section of the 1991 Act.

In considering that I take into account that overtime is a discretionary option. The Statement of his terms refers to a possible requirement ‘to work in excess’ of the stated core hours. There is no guarantee of such hours, and by extension no guarantee in respect of  specific rates for it which are not defined anywhere in his terms of employment.

This places it two steps beyond the reach of the Payment of Wages Act, 1991 and places it firmly within the collective bargaining process where that is operative.

I do not believe that an administrative rationalisation of this type carried out with the consent of the company’s employees which results in a variation of when non contractual overtime rates apply can be said to be a contravention of the Act.

This is the case even where it results in a lower payment for a portion of the hours worked; to say nothing of the significant improvements to other aspects of the complainant’s conditions of employment which were part of this process.

For the reasons set out above complaints CA-00055610-001 and 55611-001 are not well founded.

Payment of Wages, overtime rates