Complainant

Respondent

Parties

Anna  Gruziola

Apleona Ireland Limited

Representatives

  Self- represented

 Management Support Services

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059557-001

23/10/2023

The complainant submits that the respondent made an unlawful deduction of €484.63 from her wages on the 21/11/2022 contrary to section 5(1) of the Act of 1991.

She took up employment with the respondent as a cleaner on 1/02/2016.

She works 30 hours a week.  Her gross fortnightly pay is €1230.66.

She submitted her complaint to the WRC on 23/10/2023.

Evidence of complainant given under affirmation.

The complainant presented three alleged contraventions of the Act of 1991.

The complainant has been employed by the respondent since 01/02/2016 as a cleaner.

A deduction in overtime rates

While her contract of 15/3/2016 stated that she would be paid a rate of 1.5 for each hour worked after a threshold of 39 had been reached, the respondent agreed in 2018 to change this and agreed to pay her time and a half after she had worked 30 hours in a week. This practice was in force until November 2022 when the respondent advised her that overtime would be paid only after she had worked 46 hours as per the conditions set out in S.I. 110/2022 – Employment Regulation Order (Contract Cleaning Industry Joint Labour Committee).

She ceased to do overtime from that date until August 2023 when she recommenced overtime. She was paid the flat time rate of €12.50 per hour for hours worked in excess of 30 per week for the period 25/8/2023- 23/10/ 2023 which had been the practice up until November 2022.

Deductions in overtime rates in September 2023.

 The complainant was advised that the deduction said to have taken place on the 21/11/2022 was out of time. In response the complainant advised that she was referring, primarily, to deductions which occurred after 9/8/2023. She was only paid time and a half for overtime worked in excess of 39 and not the 30 to which the respondent had agreed to in 2018.She calculates the overtime owed to her in respect of that period to be €506.

Sunday Payments

Until August 2023, the respondent had paid her double time for each hour worked on Sundays.

She worked on Sunday 24/ 9/23 and 8/10/23 for which she was paid flat time of €12.50 per hour as opposed to €25 per hour.

The respondent was represented by Management Support Services.

Overtime Rates.

The respondent’s representative denied that there had been an unlawful deduction in the complainant’s wages

The respondent representative submits that in June 2023, the respondent proposed to apply the more inferior terms and conditions of employment found in S.I. 110/2022 – Employment Regulation Order (Contract Cleaning Industry Joint Labour Committee).

In August 2023, the respondent abandoned this plan and advised the complainant that they would honour the terms of her contract which would now mean time and a half for hours worked in excess of 39 hours per week, ( though not the 30 hours agreed with the respondent in 2018),and not 46 hours as provided for in the ERO ,and double time for hours worked on Sundays.

Double time for hours worked on Sundays.

The representative understands that any monies which may have been deducted from the complainant as a result of the erroneous application of the ERO were reimbursed to the complainant in the September 2023 pay cheque. There are no outstanding monies owed to the complainant. No unauthorised deduction took place. The situation was corrected.

No unlawful deduction is, therefore, before the WRC.

I am required to consider if the respondent unlawfully deducted monies from the wages of the complainant on three different occasions and contrary Section 5 (1) of the 1991 Act.

Cognisable period.

The complainant submitted her complaint to the WRC on 23/10/23.

 Relevant Law.

The cognisable period for the purposes of this complaint is 24/4/23-23/10/23 as per section 41 of the Workplace Relations Act, 2015. It provides as follows:

 “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”

The complainant’s own evidence is that the beginning of the contravention to which the complaint relates occurred on the 21/11/22 when the respondent failed to honour her contractual entitlement to  a payment of time and a half for each hour worked in excess of 30 and,  instead, imposed a higher threshold of 44 hours per week before  overtime rates of time and a half could kick in. She ceased doing overtime at that point.

Deduction on 21/11/2022.

She identified the deduction as €582 on 21/11/2022 in her complaint form submitted on 23/10/23 and when asked at the hearing to confirm the accuracy of these details, did so.

This leaves the complainant unable to comply with the statutory time limit for submission of a complaint as set out in section 41 (6) of the Act above.

The complainant when advised by the WRC that her complaint was out of time submitted a statement that she was relying on deductions which commenced after the 9/8/2023.

Deductions occurring between the 18/9/2023- 13/10/2023

Regarding these in- time alleged deductions, the complainant submitted time sheets identifying a cumulative amount of overtime in the order of 32.5 hours for the above period for which she is claiming that she was wrongfully deducted a sum of €203. The complainant did not submit a separate complaint of a separate breach of the Act of 1991 in respect of this period.

The date of the contravention.

 The matter of when time runs and the meaning and significance of the phrase

“the date of the contravention to which the complaint relates “

was addressed in HSE v McDermott [2014] IEHC 331. Hogan J held that the essential question was the “date of the contravention to which the complaint relates” and therefore it is critical how the employee frames his complaint. Mr McDermott’s complaint of deductions occurring from January 2011 to June 2011 was submitted to the Rights Commissioner on 16th June 2011, that is within the six months’ time limit in respect of his particular complaint.  He was not time- barred as submitted by the HSE. Hogan J expanded on his reasoning as follows:

“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 “.

“if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4).”

Justice Hogan also noted that a rolling time limit was not unusual in the law.

He dismissed the HSE appeal and referred the case back the EAT for the substantive issue to be decided.

Applying this precedent to the instant case, the complainant did identify deductions occurring within the cognisable period. However, her evidence clearly demonstrates that the contravention originated with the decision of the respondent to increase the threshold for overtime rates in November 2022. The complainant indicated that she ceased or suspended her overtime commitment after that deduction of 21/11/2022 came in to force. The complainant recommenced overtime in August 2023. She did not present submit a separate complaint for this specific period. She framed the date of contravention on the complaint form to the WRC to be 21 November 2022.

Furthermore, the complainant had legal advice prior to the submission of her complaint in October 2023.

Based on statute and precedent, I must find this complaint, as initiated, to be time barred.

I do not have jurisdiction to hear this element of this complaint.

Deduction concerning Sunday Payments.

This contravention concerns the respondent’s failure to pay her double time for hours worked on Sundays in September and October 2023.

Relevant Law.

 Section 5 (1) of the 1991 Act states

“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 Payment of Wages Act, 1991 identifies a deduction as follows:

“Where the total amount of 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.” 

As a first step in establishing the existence or not of an unlawful deduction, the complainant must demonstrate that the payment deducted from her was a properly payable sum.

Her contract baldly states that she is entitled to double time for hours worked on Sundays without any qualification as to thresholds.

I find on the basis of the uncontested evidence that she was paid a flat rate of €12.50 per hour in respect of 7 hours worked on Sunday 24/9/23 and in respect of 6 hours worked on Sunday 8/10/23, instead of €25 for each of these 13 hours.

I find the sum of €162- being the difference between the flat rate  and her contractually approved Sunday rate-  to be properly payable to the complainant.

I find the cumulative deduction of €162 to be an unlawful deduction

I find this element of her complaint to be well founded.

I require the respondent to pay the sum of €162 to the complainant subject to all lawful deductions.

I decide that this complaint is well founded.

I require the respondent to pay the complaint the sum of €162 subject to all lawful deductions

Unlawful deduction. Date of contravention.