Complainant

Respondent

Anonymised Parties

A Worker

 A Local Authority

Representatives

Maurice Coffey & Co Solicitors

Local Government Management Agency

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-00048584-001

11/02/2022

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

CA-00048584-002

11/02/2022

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

CA-00048584-004

11/02/2022

The complainant is employed as a supervisor with the respondent and commenced employment on 24/8/1998.  The complainant works 39 hours per week and is paid a gross wage of €23.88 per hour and €988.77 per week.

The complainant took up a new role as a supervisor on the 7/10/2020 and submitted that the respondent did not notify him in writing regarding the withdrawal of his entitlement to work overtime, specifically his entitlement to work weekend overtime, which he had worked for over 20 years, overtime during the busy summer period, overtime during public holidays, and an entitlement to act up. The complainant submits that the respondent has breached Sections 3 and 5 of the Terms of Employment (Information) Act, 1994. By virtue of the withdrawal of his entitlement to work overtime of 2.5 hours every weekend, the respondent has breached section 6 of the Payment of Wages Act 1991. The respondent disputes all three complaints.

On the 11/02/2022, the WRC received a complaint form pursuant to the Terms of Employment (Information) Act 1994 and the Payment of Wages Act 1991. 

CA-00048584-001 - Complaint pursuant to Section 7 of the Terms of Employment (Information) Act, 1994 – Section 5

Counsel for the complainant submitted that the respondent has breached Section 5 of the Terms of Employment (Information) Act, 1994 (the 1994 Act) by failing to notify the complainant of a change to his core terms and conditions. The complainant submitted in his complaint form that he took up a new role as a supervisor on the 7/10/2020 and that he did not receive any terms of employment apart from a sheet of paper setting out his primary duties from Ms C, an engineer with the respondent on the 16/10/2020. The complainant submitted that the respondent did not notify him in writing regarding the withdrawal of overtime, in particular his entitlement to work weekend overtime, overtime during the busy summer period, overtime during public holidays, and an entitlement to act up.  It was submitted that the complainant was not advised that upon moving to the role of supervisor that his entitlement to work overtime would be withdrawn and this constituted a significant change in his terms and conditions of employment which he was not notified of. 

It was further submitted that following the complainant ’s return to work in October 2020 that he continued to work overtime until he was advised by Mr A, a senior engineer, that overtime was no longer available in his new role and that he would no longer be eligible to “act up” while the relevant officer was on annual leave.

Complainant ’s Evidence

The complainant stated in evidence that he was first employed in 1998 as an assistant in a gardening role by the respondent. He confirmed that he was first promoted in 2002 to an acting supervisor grade and again in 2008 to the position of supervisor. He stated that he works 39 hours per week over 5 days. The complainant stated that since 1998 he has worked 2.5 hours of overtime every weekend apart from when he is on annual leave. He stated that there was no change to this arrangement until his entitlement to work overtime was removed in December 2020. The complainant stated that he worked overtime at weekends during public holidays and during the summer period. He stated that he shared working the public holiday weekends with a colleague and therefore worked half of the public holiday weekends.

The complainant stated that since 1998 when his supervisor went on annual leave, he acted up in the role and received an “acting up” allowance.  The complainant confirmed that the overtime hours he worked consisted of four hours on a Saturday at double time during the summer, up to the middle of July. The complainant confirmed that his contract of employment did not refer to the provision of overtime.

The complainant outlined in evidence the background to these complaints which involved interpersonal difficulties with other members of staff which culminated in the complainant taking certified sick leave on 29/5/2020. Pursuant to a mediation process involving all staff of the complainant ’s division, a new role was created for him, to facilitate his return to work. The complainant stated that in the context of the new role he was not aware nor was it his understanding that he would lose his entitlement to work overtime by accepting the new role.

The complainant confirmed that he returned to work on the 8/10/2020, that overtime was not discussed prior to his return, and he assumed that he would be entitled to work his existing overtime as part of the new role. The complainant confirmed that he received a sheet of paper setting out the duties of the role on the 16/10/2020, exhibited at the hearing, which did not refer to overtime. The complainant confirmed that he did not receive any other information regarding the terms and conditions of his new role, and he was not informed that there was any change to his entitlement to work overtime.

The complainant confirmed that he sent an e-mail to Ms C on the 29/10/2020 querying his entitlement to work overtime in his new role, exhibited at the hearing. The complainant confirmed that if he was aware of this change to his entitlement to work overtime, he would not have changed roles. The complainant raised his concerns with Mr A and was advised by him that in his opinion there was no requirement for overtime in his new role. The complainant confirmed that his entitlement to work overtime was withdrawn in December 2020 which resulted in a reduction of €220 and €234 gross per fortnight in his wages.

In cross examination the complainant confirmed that he received a contract of employment dated 24/8/1998, exhibited at the hearing. He accepted that there is no reference in the contract to overtime. He stated in relation to notification of a change to his terms that he assumed he would retain his entitlement to work overtime when accepting the new role. The complainant confirmed that he was informed by Mr A on the 10/10/2020 that there was a change to his entitlement to work overtime. He stated that he was initially advised that he could retain the overtime as a goodwill gesture, and he retained it for several weeks and was then told by Mr A in December 2020 that he was no longer eligible to work overtime.

In cross examination the complainant confirmed that it was his understanding that once over time was deemed to be reckonable for pension purposes that it would be retained by him, as it was ringfenced to him. It was put to the complainant that overtime applies to a job and not to an individual. 

Counsel for the complainant submitted that there was a fundamental change to the complainant ’s terms and conditions of employment upon his return to work on the 8/10/2020 as he had lost his entitlement to work overtime which he had worked for more than 20 years. It was further submitted that the respondent failed to notify the complainant of a significant and detrimental change to his core terms and conditions of employment on the basis that there was no reference to overtime in his contract of employment or any other document given to the complainant.

CA-00048584-004-Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 – Section 3

The complainant submitted in his complaint form that the respondent did not furnish any statement regarding the provision of overtime which is a core term of his terms and conditions of employment which has been worked by him for approximately 23 years and is reckonable pay for pension purposes.

The complainant confirmed in evidence that he was first employed in 1998 as an assistant in a gardening role and received a contract of employment. It was submitted by way of written submissions that the respondent has not complied with the requirements of Section 3 of the 1994 Act by not providing him with the statement relating to overtime hours of work. It was further submitted that the complainant has suffered a detriment by reason of the respondent’s failure in this regard as his transfer to the role of supervisor involved the purported withdrawal by the respondent of his entitlement to work overtime which is of significant financial benefit to him and which he was not informed of.

The complainant confirmed in evidence that he returned to work on the 8/10/2020, that overtime was not discussed prior to his return, and he assumed that he would be entitled to work his existing overtime as part of the new role. The complainant confirmed that he received a sheet of paper on the 16/10/2020 which only set out the duties of the new role, opened at the hearing. The complainant confirmed that he did not receive any other information or documentation regarding the terms and conditions of his new role, and he was not informed that there was any change to his entitlement to work overtime.

CA- 00048584-002 -Complaint pursuant to section 6 of the Payment of Wages Act 1991

Preliminary Issue – cognisable period relevant to this complaint

It was submitted that the complainant was subjected to purported unlawful deductions of wages, which specifically concerns the unlawful deduction of €220.31 per fortnight, equivalent to 2.5 hours overtime previously worked by him on a weekly basis at weekends, at a double time rate. The complainant submitted in his complaint form that the relevant date of the deduction is the 16 /12/ 2021 and stated that, “My Employer has unlawfully deducted the payment of overtime, to which I am contractually entitled, and which is reckonable pay for my pension, from my wages. This loss is continuing.”

It was submitted that the contravention complained of is continuing i.e. the deduction had occurred every subsequent pay period. It was submitted that the Respondent objects that the complainant has referred a complaint pursuant to the 1991 Act that is continuing in nature on the basis that there is a point in time beyond which the complainant is precluded from relying on contraventions within the context of the complaint.

By way of supplemental submission, the complainant submitted that there is no restriction to a claim incorporating contraventions which postdate the filing of the complaint, once the first contravention relied upon occurred within the six-month period immediately preceding the presentation of the complaint.

It was submitted that the WRC is a statutory body, and its jurisdiction derives primarily from the Workplace Relations Act, 2015 (the 2015 Act). The “cognisable period" is not defined by either the 2015 Act or the 1991 Act. However, the statutory limitation period within which complaints must be presented to the WRC is provided for at section 41 (6) of the 2015 Act.

It was submitted regarding the application of Section 41(6), the calculation of the relevant six-month period is determined with reference to the date on which the complainant ’s complaint was presented. As the complainant ’s complaint was lodged on the 11/2/2022, for his complaint to have been properly presented to the WRC within the meaning of Section 41(6), the contravention grounding his complaint must have occurred within the period between the 12/8/2021 and the 11/2/2022.

It was further submitted that the complainant ’s complaint, pursuant to the 1991 Act, is in respect of a contravention dated the 16/12/2021 and continuing contraventions thereafter and has thus been presented within the statutory timeframe. It was further submitted that the complainant’s complaint of continuing breaches of the 1991 Act, all of which postdate the 12/8/2021, are also within the statutory time frame laid down by the 2015 Act.

Counsel for the complainant placed reliance on the decision of the High Court in the Health Services Executive V John McDermott [2014] IEHC 331 where it was established that "every distinct and separate breach of the 1991 Act amounts to a contravention of that Act" . In this regard, it is submitted that it is only breaches predating the 12/8/2021 i.e. outside of the six-month period, that would be statute barred. However, the complainant has not advanced a claim for breaches of the 1991 Act occurring before that date, and so no issue arises in this regard.

The complainant argued that, whilst the Oireachtas has explicitly provided a date from which time runs for the purposes of the Act i.e. from the date of the contravention to which the complaint relates, it has not provided that a complaint presented for adjudication is limited to contraventions up until the date of presentation. In this regard, the respondent is seeking to impose a temporal limit that is simply not provided for in the legislation.

It was further submitted that Section 41 is entitled "Presentation of complaints and referral of disputes". The purpose of the section, it is submitted, is to provide a statutory time limit within which complaints must be presented and disputes referred. The section neither restricts, nor purports to prohibit, complaints that are ongoing in nature. The interpretation argued for by the respondent is not borne out by Section 41.

It was submitted that the complainant is entitled to rely upon contraventions of the 1991 Act, which are the subject of a complaint that has been properly presented to the WRC that have occurred up until the date on which the matter comes on for hearing before an Adjudicator and the complainant gives evidence, thus proving their claim.

Counsel for the complainant relied on the case of Philip Newell v. Dublin Airport Authority ADJ00032837 as authority for the proposition that a complaint which is continuing, and which comprises contraventions postdating the presentation of a complaint can be considered by an Adjudicator.

It was submitted that the complainant ’s complaint concerns contraventions from the 16/12/2021 and thus within the six-month time frame permitted by Section 41(6) of the 2015 Act.

If, which is not admitted, the respondent is correct in its interpretation of Section 41 of the 2015 Act, the result is that employees who have complaints of an ongoing nature would be required, pending the hearing and/or determination of those complaints, to present multiple complaints to the WRC potentially coming on for hearing at different times and before different adjudicators, as complainant s have no control over the administration, assignment or scheduling of cases.

It was submitted by Counsel that this is not the intention or purpose of the legislation. There is no bar to presenting a complaint that is ongoing at the time of submission to the WRC to impose such a restriction would be absurd and against the purpose for which the statutory body was established. It was submitted that the within complaint was presented on the 11/2/2022 and did not receive a date for hearing until 13 months later, in March 2023. By the respondent's argument, the complainant would have been required to submit at least 3 additional complaints all concerning the same issue.

The complainant submitted that all contraventions of the 1991 Act including and postdating the 16/12/2021, to the date on which the complainant gives his evidence, are properly before the WRC.

CA- 00048584-002 -Complaint pursuant to section 6 of the Payment of Wages Act 1991

The complainant contends that he was subjected to unlawful deductions from his wages in the amount of €220.31 per fortnight, which consists of the loss of overtime of 2.5 hours per weekend, which he has worked since commencing employment in 1998. The complainant asserts that he is contractually entitled to this payment, which has been unlawfully deducted, contrary to the provisions of the 1991 Act. The following is a summary of the complainant ’s evidence, written and oral submissions.

Complainant ’s Evidence

The complainant stated that he was first employed in 1998 as an assistant in a gardening role by the respondent. He confirmed that he was first promoted in 2002 to an acting supervisor grade and again in 2008 to the position of supervisor. The complainant confirmed that he received a written statement of his terms of employment regarding his role as supervisor, exhibited at the hearing.  He stated that he works 39 hours per week over 5 days. The complainant receives €988.77 as his weekly wage which equates to €23.88 per hour.

Since 1998 the complainant has worked 2.5 hours of overtime every weekend apart from when he is on annual leave. He stated that there was no change to this arrangement until his entitlement to work overtime was removed in December 2020. He worked overtime at weekends, during public holidays and during the summer period and he shared working the public holiday weekends with a colleague. The complainant stated that since 1998 when his supervisor went on annual leave, he acted up in the role and received an “acting up” allowance.  The complainant confirmed that the overtime hours he worked during the summer months from St.  Patrick's weekend to the middle of July consisted of four hours on a Saturday at a double time rate. The complainant confirmed that his contract of employment did not refer to the provision of overtime.

The complainant outlined in evidence the background to this complaint which involved interpersonal difficulties with other members of staff which culminated in the complaint taking certified sick leave on 29/5/2020. Pursuant to a mediation process involving all staff of the complainant ’s division, a new role was created for him, to facilitate his return to work. The complainant stated that in the context of the new role he was not aware nor was it his understanding that he would lose his entitlement to work overtime by accepting the new role.

The complainant confirmed that he returned to work on the 8/10/2020, that overtime was not discussed prior to his return, and he assumed that he would be entitled to work his existing overtime as part of the new role. He confirmed that his entitlement to work overtime was withdrawn in December 2020 which has resulted in a reduction of €220 and €234 gross per fortnight in his wages. The complaint confirmed that he was available to work overtime.

In cross examination the complainant confirmed that he was informed by Mr A on the 10/10/2020 that there was a change to his overtime. He stated that he was initially advised that he could retain the overtime as a goodwill gesture, and he retained it for several weeks and was then told by Mr A in December 2020 that he was no longer eligible to work overtime.

Legal Submissions

It was submitted that the complainant was subjected to purported unlawful deductions of wages, in the amount of €220.31 per fortnight, which consists of the loss of overtime of 2.5 hours per weekend, contrary to the provisions of the 1991 Act. Counsel for the complainant confirmed on the third hearing day that this complaint pursuant to the 1991 Act solely deals with the loss of overtime of 2.5 hours previously worked by him on a weekly basis at weekends which is considered reckonable pay for pension purposes. The loss of entitlement to work other types of overtime described above are the subject of separate proceedings.

The complainant submits that he has a contractual entitlement to work overtime which is reckonable pay for the purpose of his pension and is relying on the provisions of Circular S.12/91 exhibited at the hearing.  The complainant also placed reliance upon correspondence from a staff officer of the respondent where it is confirmed that 2.5 hours at a double time rate is designated as reckonable overtime from a superannuation perspective. In the circumstances it was submitted that this overtime is part of the complainant ’s salary/wages which has been unlawfully deducted by the respondent.

It was submitted that the first question that be must addressed is to determine what wages are properly payable under the employment contract before then determining whether there has been a deduction under the 1991 Act. The complainant asserts that overtime is payable under his contract of employment or “otherwise” within the meaning of Section 1 of the 1991 Act.  In this regard the complainant places reliance on the fact that for the purposes of superannuation the complainant ’s overtime had to comply with the requirements of Circular S. 12/ 91 which required specific conditions to be fulfilled as set out therein.

The complainant further contends that the overtime worked by him was an implied term of his contract of employment. It is well established that terms can be implied into a contract of employment by inter alia custom and practice, and the conduct of parties to an employment contract. In this regard the complainant places reliance on the cases of McNamara V DHL Express (Ireland) Limited Ltd & DHL Hub Leipzig Gmbh ADJ 00024013 and the Labour Court decision of Tesco Ireland limited v Marek Balans PWD 2114 which was remitted back to the Labour Court from a determination of the High Court.

Counsel for the complainant submitted that by virtue of custom and practice and the regularity of the overtime undertaken by the complainant for over 20 years that an Adjudication Officer can consider the entirety of the employment relationship and that they are not solely confined to the terms of the employment contract. It was further submitted that the complainant was entitled to undertake overtime hours by virtue of an implied term of his contract and reliance was placed on the decision of McNamara where an Adjudication Officer had relied upon an implied term of the contract.

In summation it was submitted that the relevant overtime hours have been worked by the complainant for more than 20 years and therefore there is ample evidence to demonstrate that this has been an implied term of the complainant ’s contract. It was submitted that the overtime was withdrawn in December 2020 however the complainant remains ready willing and available to work the overtime hours. It was submitted that he is being prevented from doing so by the respondent, and that it is a matter for the respondent whether they avail of his availability. In any event it was asserted that the overtime remains payable to the complainant in accordance with the provisions of the 1991 Act.

CA-00048584-001 -Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 – Section 5

Counsel for the respondent confirmed that as the material facts are not in dispute between the parties, he was not calling any witnesses to give evidence on behalf of the respondent. The following is a summary of the respondents written and oral submissions.

The complainant was provided with a written contract of employment on the commencement of his employment where several clauses provided detail regarding working hours, Sunday working etc. It is the respondent’s position that the key elements required under the 1994 Act have not changed in the course of his employment.

It was submitted that the information provided to the complainant satisfies the requirements of Section 3(1)(i) and 5 of the 1994 Act. There have been no changes in the fundamental aspects of the complainant's employment as covered by the Act. There is no obligation or provision for the complainant to work mandatory overtime within his contracts of employment. All overtime undertaken by him in his roles is of a voluntary nature and discretionary nor is there any obligation on the Respondent to provide him with overtime which appears to be the basis of his complaint.  It was submitted that if there was an obligation or a compulsory aspect to overtime, the Respondent accepts that this would have to have been included in the contract.

It was further submitted that the complainant did give his consent to his new duties, which do not require overtime. Overtime worked by the complainant would largely have arisen due to park ranger and other supervision duties. Other overtime may have arisen due to busy summer periods. As the agreed duties currently undertaken by the complainant do not include a supervisory role, and are confined to playgrounds, management of trees etc, it was submitted that overtime is no longer applicable.

It was further submitted that the complainant was previously employed as a supervisor and remains employed as a supervisor. The complainant contends that he was entitled to a new statement outlining his terms and conditions when he was reassigned at the same grade and the same rate of pay. Or in the alternative that he was entitled under the 1994 Act to a statement that he was no longer required to work overtime. It was submitted that none of these give rise to a bona fide complaint under the 1994 Act.

In his summation Counsel for the respondent submitted, that as the overtime hours undertaken by the complainant were voluntary in nature there is no requirement pursuant to the provisions of the 1994 Act to stipulate a clause relating to same. Accordingly, it was submitted that the complaint pursuant to Section 5 is misconceived and not applicable.

CA-00048584-004 - Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 - Section 3

It was submitted that the information provided to the complainant satisfies the requirements of Section 3(1)(i) of the 1994 Act the respondent has met all its obligations to the complainant under the 1994 Act. There is no obligation or provision for the complainant to work mandatory overtime hours within his contracts of employment. All overtime undertaken by him in his roles is of a voluntary nature and discretionary.

In summation Counsel submitted that the reference in Section 3 (1)(i) of the 1994 Act is only applicable when overtime hours are mandatory and guaranteed, therefore, it is not applicable when the overtime is voluntary. It was further submitted that as the overtime undertaken by the complainant was of a voluntary nature it did not come within the scope of Section 3 of the 1994 Act.

CA- 00048584-002 -Complaint pursuant to section 6 of the Payment of Wages Act 1991

Preliminary Issue – cognisable period relevant to this complaint

Counsel for the respondent refuted the complainant ’s submission on the basis that the 2015 Act and 1991 Act do not provide jurisdiction for an Adjudication Officer to award redress in respect of contraventions of the 1991 Act occurring after the date of receipt of the complaint form.  The following is a summary of the respondents written and oral submissions.

It was submitted for reasons of legal consistency it is essential to establish an appropriate temporal point of application. To hold otherwise would defeat promptness and render the date at which time started to run not only uncertain, but perhaps impossible to ascertain. The temporal limitation in this instance is confirmed by the Workplace Relations Act at Section 41 (6) and in the Payment of Wages Act at Section 6 (4).

The complaint was submitted to the WRC  11/2/2022. Based on the above, the cognisable period covered by the claim is the six-month period from the 12/8/2021 until 11/2/2022.  As set out in the complaint form the last date of contravention was the 16/12/2021 however it is a matter of fact that the last date at which the overtime was paid was in December 2020.

It was submitted that the complainant has placed reliance on the decision of Hogan J. in the High Court in Health Service Executive v. McDermott [2014] IEHC 331 which decision was considered and applied in the decision of the Labour Court in The Institution of Engineers in Ireland/Engineers Ireland v. Richard Seaver PWD177, which reliance was placed on. 

It was submitted that the complainant waited fourteen months in this case before submitting a complaint. It was submitted that the six-month cognisable period reflects the jurisdiction of both the WRC Adjudication Service and the Labour Court to adjudicate on a complaint under the relevant legislation. The respondent contended that the recoverable amounts should be restricted to a period of unlawful deduction/underpayment ending no later than six months prior to the presentation of the complaints to the WRC.

It was further submitted that an Adjudication Officer can only examine the complaints in respect of deductions which fall within the cognisable period. Any deductions which fall outside the cognisable period are statute barred and to that extent, are not cognisable. It was submitted that there is no provision in either the 2015 Act or the 1991 Act for “ongoing claims”.  Accordingly, the complaints as filed, pertain only to the period covered by both Acts.

It was submitted that the application of the cognisable period is one which has been consistently applied across numerous Labour Court and WRC adjudication decisions.

CA- 00048584-002 -Complaint pursuant to section 6 of the Payment of Wages Act 1991

The respondent denies that it has breached the terms of the 1991 Act as alleged.  Counsel for the respondent confirmed at the hearing that because the material facts relevant to all the complaints are not in dispute, he was not calling any witnesses to give evidence on behalf of the respondent. The following is a summary of the respondent’s written and oral submissions.  

It is the Respondent’s position that the complaint to the WRC has been made outside of the time limit of six months permitted by the 2015 Act at Section 41(8) for the making of a complaint in that no breach of the Act is contended to have occurred within the cognisable period for the complaint.

It was submitted that without prejudice to the above matter as it relates to time limits, the Act is very specific in that it affords protections to workers against unlawful deductions of money 'properly payable' to them as confirmed by Finnegan J.  in Dunnes Stores (Cornelscourt) v Lacey and Nuala O'Brien [2005] IEHC 417. In that case the High Court found that in determining claims under the legislation, the central consideration is whether the remuneration in question was 'properly payable' to the complainant. The respondent also relied on the decision of the High Court in Marek Balans v Tesco Ireland Limited [2020] IEHC 55.

It was further submitted that central to an Adjudicator Officer’s analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those payments, what is the nature of the deficiency. The key issue to be addressed is the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful.

It is the respondent’s position that the complainant does not have an entitlement to work overtime hours. It was submitted that the respondent may, from time to time, request staff to attend work beyond or outside of their normal working hours to ensure that business needs are met. The Complainant 's contract of employment does not provide for the payment of overtime hours, and he is not entitled to work overtime where there is no business need. It was submitted that the complainant ’s current work arrangements do not necessitate the incurring of working overtime. Furthermore, it was submitted that it is inconceivable that the respondent should pay for overtime when it is not required. There has been no unlawful deduction for payment of overtime hours as for any overtime to be payable, it must first be worked.

It was further submitted that it is a matter for the Adjudication Officer to determine in this case whether a failure to provide the complainant with overtime hours in the first six months prior to the lodgement of the claim on 11/2/2022 was an unlawful deduction of money that was “properly payable”.  It is the respondent’s position that the complainant was paid fully in accordance with the duties that he undertakes with the respondent reflecting the hours he has worked.

The complainant ’s submission is that he would receive payment for overtime hours regardless of whether he was working the overtime or not. It was submitted that the complaint as framed brings it outside provisions of the 1991 Act in that it is not for the WRC to decide whether an employee has an entitlement to overtime but rather the provisions of the 1991 Act relate to deductions/nonpayment for overtime that has been worked.

CA-00048584-001 -Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994 – Section 5

The Terms of Employment (Information) Act, 1994 provides at Section 5:-

“5. Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect, …”

The Complainant submitted that he was not notified of a material change to his terms and conditions of employment, namely the withdrawal of his entitlement to work overtime hours, upon his transfer to a new role on the 8/10/2020.  

It is undisputed between the parties that the complainant was not informed of the withdrawal of the provision to work overtime hours upon the commencement of his new role on the 8/10/2020. The respondent asserted that as the overtime hours worked by the complainant were voluntary in nature there is no requirement pursuant to the Section 5 to notify him of a material change relating to overtime.

Firstly, hours of work including overtime is considered a core term further to Section 3(1)(i).  Accordingly, pursuant to section 5(1) any material change concerning “any of the particulars of the statement furnished by an employer under section 3” must be notified in writing to an employee within one month of the change taking effect.

Secondly, it is my view that there is no distinction in the 1994 Act between voluntary and compulsory overtime as provided for at Section 3(1)(i), which simply refers to “overtime”, as evident from the wording of that Subsection.

 “(i) any terms or conditions relating to hours of work (including overtime),”

I do not agree with the respondent’s submission, based on the wording of Section 3 (1)(i), which is premised on a distinction between voluntary and mandatory overtime which is not provided for in the Act. I note that there is no obligation upon the respondent to provide the complainant with additional hours of work amounting to overtime hours. However, the material issue is the withdrawal of the provision of overtime hours within the complainant’s terms and conditions of employment regarding his ability to undertake overtime hours.  I am satisfied that the withdrawal of  the provision of overtime hours within the complainant’s terms and conditions of employment regarding his ability to undertake overtime hours, constituted a material change to the complainant’s terms and conditions of employment. Moreover, I am satisfied that there was an obligation on the respondent in accordance with the provisions of Section 5(1)(a) of the Act to notify the complainant of this change within one month of the change taking effect.

Based on the complainant’s uncontested evidence that he was not provided with notification in writing of this material change within one month, I find that the respondent has breached Section 5.  I am further satisfied that the complainant was wholly disadvantaged because of the respondent’s failure to notify him of this material change, in terms of fully appreciating the financial implications for him, regarding the impact upon his earnings, upon transferring to a new role. It is clear from the complainant’s evidence that he has suffered significant loss of earnings as a result.

In addition to various remedies dealing with the provision / content of a written statement, Section 7(2)(d) of the 1994 Act provides that an Adjudication Officer may “d) in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G,  and without prejudice to any order made under paragraph (e)order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”    

Noting that the maximum compensation that can be awarded is capped at 4 weeks remuneration and considering the financial losses incurred by the complainant in this regard, I direct the respondent to pay the complainant €2,966 being equivalent to three weeks remuneration by way of compensation which I consider just and equitable in the circumstances of this case. I declare this complaint to be well founded.

CA-00048584-004 -Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994- Section 3

Section 3 of the 1994 Act provides as follows:

3.— (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 the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job of nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Findings

The complainant submitted that the respondent did not furnish any statement regarding the provision of overtime which is a core term of his terms and conditions of employment.  The respondent does not dispute this, but asserts it is not required to furnish such a statement given the voluntary nature of the overtime undertaken by the complainant.

The respondent submitted that the information provided to the complainant satisfies the requirements of Section 3(1) of the 1994 Act on the basis that there is no obligation for the complainant to work mandatory overtime hours within his contracts of employment as all overtime undertaken by him in his roles is of a voluntary nature and discretionary. 

I note that Section 3(1)(i) relates to “hours of work (including overtime)” and provides that a statement must be provided regarding “(i) any terms or conditions relating to hours of work (including overtime);”. It is my view, that there is no distinction in this Subsection, as Counsel for the respondent suggests, between mandatory and voluntary overtime, as the Subsection simply refers to “overtime” which in my view, includes any type of overtime.  

Section 3(1) (i) of the Act requires an employer to give to an employee a statement of the core terms and conditions of employment including any terms relating to overtime hours within 2 months of commencing employment. I accept the complainant’s evidence that he was not furnished with terms and conditions of employment regarding the provision of overtime hours within two months of commencing employment on 24/8/1998. Having examined the contract of employment and noting that no other document referring to terms and conditions of employment was provided to the complainant, I am satisfied that there is no reference to overtime hours of work within the contract.

I am satisfied based on the uncontested evidence of the complainant that he was not provided with a statement relating to a core term of his employment regarding overtime hours, within two months of commencing employment in August 1998.  Accordingly, I find that the respondent has breached Section 3 (1) of the 1994 Act.  I note from the evidence of the complainant that the overtime hours worked by him from 1998 onwards constituted a significant portion of his wages and he has subsequently suffered a significant reduction in his wages.  

I declare this complaint to be well founded. I direct the respondent to pay the Complainant €988.77 being equivalent to one week’s remuneration by way of compensation which I consider just and equitable in the circumstances of this case.

 CA- 00048584-002-Complaint pursuant to section 6 of the Payment of Wages Act 1991

Preliminary Issue – cognisable period relevant to this complaint

The Workplace Relations Act 2015 at section 41(6) specifies the time limit that applies for lodging complaints under certain employment rights enactments, including the Payment of Wages Act 1991. Section 41 (6) provides: 

‘(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.’

That provision specifies that a complaint cannot be entertained by an Adjudication Officer, or by the Labour Court on appeal, unless it is presented within the period “ of 6 months beginning on the date of the contravention to which the complaint relates”.

The six-month timeframe may be extended by a further six-month period if the failure to present the complaint in time was due to reasonable cause. In this case no application was made to extend the timeframe by a further six months for reasonable cause.

The meaning of the words in Section 41 (6) “on the date of the contravention to which the complaint relates” were fully considered by Hogan J. in the well-established High Court decision of a Health Service Executive v McDermott [2014] IEHC 331 regarding the relevant time limits for lodging a complaint pursuant to Section 6(4) of the Payment of Wages Act 1991. In upholding the determination of the Employment Appeals Tribunal, Hogan J held that;

“14 ...the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

27.  It follows, accordingly, that for the reasons which I have just stated, the EAT was correct in concluding that the claim in the present case was not time-barred by reason of the operation s. 6 ( 4) of the 1991 Act. Critically, the complaint in the present case related to a period of time (January 2011 to June 2011) which was presented to the Rights Commissioner on 16th of June 2011 within the six months time limit in respect of this particular complaint. “

The preliminary matter in dispute in this case is the period which is cognisable for the purpose of investigating the complaint and awarding redress. The parties agree that the relevant date of contravention to which this complaint relates, further to Section 41(6), is the 16/12/2021, therefore no issue arises regarding the time limit for the presentation of the complaint.

Counsel for the complainant submits that the relevant cognisable period in respect of this complaint runs from the 16/12/2021 up to the date the complainant gave his evidence at the hearing of this complaint, which Counsel confirmed was the 16/8/2023. It was submitted that the complainant is entitled to seek redress for ongoing alleged unlawful deductions consisting of the loss of overtime of 2.5 hours per week, and that there is no statutory provision precluding an Adjudication Officer from awarding redress for ongoing deductions.

The respondent disputes this claim on the basis that there is temporal limitation period which is confirmed by the 2015 Act at Section 41 (6) and in the 1991 Act at Section 6 (4) which is a six-month period preceding the date of referral of the complaint.  Accordingly, the cognisable period covered by this complaint is the six-month period running from the 12/8/2021 until 11/2/2022. 

It is my view that Section 41 (6) of the 2015 Act, is determinative of the time limit for the referral of complaints under the 1991 Act and the relevant cognisable period for investigating complaints and awarding redress.

I agree with Counsel for the respondent’s submission that a cognisable period of a six-month period preceding the date of referral of the complaint, is one which has been consistently applied across numerous Labour Court and WRC adjudication decisions. In a recent Labour Court decision, Gresham Hotel V Arturas Kononovas PWD2341 taken under the 1991 Act, the Court relying on Section 41(6) of the 2015 Act confirmed the cognisable period as follows: 

“In this case, the Complainant lodged his complaint to the Workplace Relations Commission on 25 October 2022. No application was made to extend the timeframe by a further six months for reasonable cause. Accordingly, the cognisable period is confined to the six-month period from 26 April 2022 to 25 October 2022. “ 

This is also clear from the dicta of Hogan J. in the decision of McDermott, who confirmed that the relevant period for the investigation of the complaint was a six-month period running from January to June 2011 on the basis that the date of referral of the complaint was the “16th of June 2011 within the six months time limit in respect of this particular complaint. “

I note that Counsel for the complainant could not point to any statutory provision which empowers an Adjudication Officer to award redress for ongoing contraventions which postdate the referral of the complaint. In this case the complaint form was received by the WRC on the 11/2/2022. Accordingly, I find based on the statutory time limit set out in section 41(6) of the 2015 Act and the relevant authorities as referred to above, that the cognisable period relevant to this complaint is confined to a six-month period preceding the date of referral of the complaint, running from the 12/8/2021 until 11/2/2022. I find that the date of the alleged contravention relevant to this complaint, namely the 16/12/2021, falls within this cognisable period.  

I am satisfied that there is no statutory provision set out in the 2015 Act or the 1991 Act which provides an Adjudication Officer with the jurisdiction to investigate complaints of alleged unlawful deductions which have occurred on an ongoing basis after the date of referral of the complaint form, which in this case refers to any period after the 11/2/2022.

CA- 00048584-002 - Complaint pursuant to section 6 of the Payment of Wages Act 1991

The Law 

Section 1 of the Payment of Wages Act 1991 (the 1991 Act) defines “wages” in the relevant part as:-

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, ….

Section 5 (1) of the Act prohibits employers from making deductions from the wages of employees or receiving any payment unless the deduction is permitted by statute, or is authorised by a term of the contract, or it is a deduction to which the employee has consented to in writing.

Section 5(6) stipulates the following;-

“(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.”

Pursuant to the provisions of the 1991 Act, in the first instance, I am required to ascertain what wages are properly payable. Having established that, I then need to consider whether there was a deduction in the proper payment and, if that was the case, whether the deduction arose for one of the reasons set out in Section 5(1) of the Act.

In Marek Balans v Tesco Ireland Limited [2020] 31 E.L.R 125 MacGrath J. considered the application Section 5 of the 1991 Act. MacGrath J. determined that when considering whether a deduction from wages has been lawfully made, the concept of wages “properly payable” is central to the Court's analysis and should be addressed before considering the question of a deduction or whether a deduction is unlawful, relying on the decision of Finnegan J. in Dunnes Stores (Cornelscourt) Limited v Lacey [2007] 1 I.R. 478.

In Sandra Cleary & Ors v B & Q Ireland Limited [2016] IEHC 119 Mr. Justice McDermott in the High Court considered the definition of wages and expenses as set out in Section 1(1)(i) of the Act.  The case concerned several elements relating to different bonus/allowance payments. The first element concerned a claim by several of the appellants who claimed an entitlement to be paid a winter/summer bonus under their contracts of employment. The bonus was normally paid twice annually. The respondent announced the withdrawal of these two seasonal bonus payments due to the implementation of cost reducing policies. The appellants claimed that the summer bonus, payable that year, should nevertheless have been paid since it was earned and/or accrued during the previous August to January. It was also claimed that the withdrawal of the bonus was an unlawful deduction from wages and in breach of the provisions of the Act.

The claims were first brought to the Rights Commissioner where they were upheld. The respondent appealed the Rights Commissioner's decisions to the Employment Appeals Tribunal, and they were overturned in respect of both points. The High Court overturned the decision of the Tribunal in finding that the Tribunal had erred in law in holding that the withholding of the bonus payment for the period already worked was lawful. In this regard Mr. Justice McDermott stated at paragraphs 63 and 64;

“63. The employees worked the relevant period pursuant to the terms of the contract and scheme, thereby accruing a bonus entitlement under the scheme. I am not satisfied that the terms of the bonus scheme properly interpreted, allow for the unilateral withholding of a bonus payment in respect of a period worked by the employee during which the workers had a legitimate expectation that the bonus was accruing and would be paid. I am satisfied that the bonus for August 2011 to January 2012 was properly payable in June 2012 notwithstanding the withdrawal of the scheme in January 2012…….The payment of the bonus crystallised as a contractual obligation once it was “earned” in accordance with the terms of the scheme as operated. I am satisfied that the Tribunal erred in law, in interpreting the discretion vested in the employer to withdraw the bonus scheme at any time as being applicable or attaching to this period.

64. I am therefore satisfied that notwithstanding the employer's difficult financial circumstances in this case, it bore a contractual obligation to pay the three per cent bonus accrued to each employee during the relevant six month period and that this was a bonus properly payable as “wages” under s.5(1) of the 1991 Act.”

It is clear from the rationale of this High Court decision that for the bonus payment to be considered wages “properly payable”, such wages need to be “earned” or “worked” in accordance with the terms of the bonus scheme.

 What wages are properly payable?

The complainant alleges that his wages were unlawfully deducted in the sum of €220.31 on the 16/12/2021. Accordingly, I find that the complaint as framed is within the cognisable period.

In determining whether the complainant has been the subject of an unlawful deduction in the sum of €220.31 contrary to the provisions of the 1991 Act, I must in the first instance determine, applying the rationale of MacGrath J. in Balans, what wages were properly payable within the cognisable period and then consider the question of a deduction within the cognisable period or whether a deduction is unlawful.

The complainant submits that the overtime of 2.5 hours worked by him every weekend for over 20 years, until this entitlement was withdrawn, is properly payable based on an implied term of his contract of employment. It was stated that it was well established that terms can be implied into a contract of employment by inter alia custom and practice, and the conduct of parties to an employment contract. The respondent denies that overtime earnings in the sum of €220.31 is properly payable to the complainant on various grounds including on the basis that the hours must be worked first to be considered payable.  

In addressing the first question, I am required to address the following aspects of the complainant’s submission. Firstly, whether an entitlement to work overtime of 2.5 hours per weekend can be inferred by way of an implied term based on custom and practice, the conduct of the parties, and relevant Circulars into the complainant ’s contract of employment. Secondly, I must be satisfied, applying the rationale of McDermott J. in Cleary and Co. that the overtime has been “earned” or “worked” in accordance with the implied contractual term for it to be considered properly payable.

It is undisputed between the parties that the last occasion when the complainant worked overtime was in December 2020 when his entitlement to work overtime was withdrawn.  It is my view that the rationale of McDermott J. in Cleary and Co is instructive and on point in respect of a key issue in this case and supports the respondent’s position in that regard. A key issue for consideration by McDermott J. in holding that the summer/winter bonus was payable for the relevant period in accordance with the terms of the bonus scheme centered on the fact that the payment crystallised once it was worked or earned, as he stated  “The payment of the bonus crystallised as a contractual obligation once it was “earned” in accordance with the terms of the scheme as operated”. He further stated that he was not satisfied to hold that the bonus scheme properly interpreted, “allow for the unilateral withholding of a bonus payment in respect of a period worked by the employee”.

Applying the above rationale to the facts of this case, based on the complainant’s evidence that he did not work any overtime of 2.5 hours at weekends during the cognisable period, I find that such payments of €220.31 were not “earned” and therefore cannot be properly payable further to an implied term of his contract. Even if I find that an entitlement to work overtime of 2.5 hours per weekend can be inferred by way of custom and practice as an implied term of the Complainant’s contract given that he had worked this overtime for over 20 years, and it was recognised as reckonable pay for pension purposes, it is clear from the decision of Cleary and Co that the payment must be earned by way of carrying out the work before it can be considered “properly payable”. I agree with the respondent’s submission that the overtime hours must be worked first for them to be considered properly payable per the terms of the 1991 Act.

Applying the rationale established by McDermott J. in Sandra Cleary & Ors v B & Q Ireland Limited [2016] IEHC 119,I find thatthe relevant overtime hours must have been “worked” or “earned” as per the alleged implied term of the complainant’s contract, for them to be considered properly payable. In the circumstances of this case, I am satisfied that the complainant did not work any overtime hours on any weekend between 12/8/2021 to the 11/2/2022, accordingly, I find that no entitlement to an overtime rate of pay, for hours worked arises for consideration.  

Accordingly, applying the rationale of the High Court in Balans, as set out by MacGrath J., I find that, as no evidence was put before me to support a finding that the complainant was entitled to a payment of €220.31  on the 16/12/2021, as alleged,  I am satisfied that the amount of €220.31   does not come within the definition of wages “properly payable” as provided for in Section 5 (6) (a) of the 1991 Act.  Therefore, I find that the deduction of €220.31 as claimed by the complainant does not constitute an unlawful deduction for the purposes of Section 5 (1) of the Act.

 CA-00048584-001;

Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994.

I declare this complaint to be well founded. I require the respondent to pay the complainant €2,966.31 being equivalent to three weeks’ remuneration by way of compensation which I consider just and equitable in the circumstances of this case.

CA-00048584-004;

Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994.

I declare this complaint to be well founded. I direct the respondent to pay the complainant €988.77 being equivalent to one week’s remuneration by way of compensation which I consider just and equitable in the circumstances of this case.

CA- 00048584-002;

Complaint pursuant to section 6 of the Payment of Wages Act 1991

For the reasons set out above I declare this complaint under the Payment of Wages Act 1991 to be not well founded.

Terms and conditions of employment / notification of a change to core terms  / wages properly payable / wages must be earned / worked