Complainant

Respondent

Parties

Agata  Niemierka

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 7 of the Terms of Employment (Information) Act, 1994

CA-00059548-001

23/10/2023

This is a complaint of a contravention of the Terms of Employment (Information) Act, 1994 concerning the respondent’s failure to notify the complainant, in writing, of a change in the terms of her employment and of salary reductions.

The complainant earned €1139 a fortnight. She worked 39 hours a week.

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

The complainant gave evidence under affirmation.

The complainant requested that her complaint be adjudicated upon under the Payment of Wages Act, 1991.

The complainant has been employed with the respondent as a cleaner since 4/12/2018.

She reached a verbal agreement with the respondent in early 2019 that her overtime rate of time plus a half would kick in after she had reached the threshold of 39 hours a week. Her written contract provided for double time for hours worked on Sundays.

 She received her contract of employment on 4/12/2019.

On 21/11/2022 the respondent notified her that, henceforth, S.I. 110/2022 – Employment Regulation Order (Contract Cleaning Industry Joint Labour Committee), (“TheERO”) would apply and that overtime rates would only kick in after she had worked 46 hours which included Sundays, as opposed to the 39-hour threshold for payment of overtime rates which had been in force since 2018. She stopped doing overtime when the respondent advised that they would not honour the four yearlong practice of paying double time for hours worked on Sundays.

She submitted a pay slip from the 26/8/2022 showing that she was paid double time for hours worked on Sunday.

In July 2023 the complainant and colleagues reached an agreement with the respondent which saw the respondent withdrawing their insistence that the ERO rates should prevail, and committing to stand by the employees’ original contractual terms which included an overtime rate of time plus a half once the threshold of 39 hours a week had been reached  and double time for hours worked on Sundays.

However, the respondent failed to pay the complainant double time for hours worked on Sunday 28 July 2023.

The complainant requests that an investigation be undertaken into what she should have been paid and that the Adjudicator makes recommendations as to future practices.

The respondent witnesses did not attend. The respondent was represented by Management Support Services.

The respondent representative objected to the complaint being heard under the Payment of Wages Act, 1991 as it was submitted under the Terms of Employment (Information) Act, 1994 and section 39 of the Organization of Working Time Act did not permit this change.

 The complainant never signed the contract upon which she is trying to rely.

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 the respondent abandoned this plan and advised the complainant that they would now honour the terms of her contract which meant time and a half for hours worked in excess of 39 hours per week and 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 September 2023 pay cheque.

The representative undertook to ensure that the respondent had, in fact, reimbursed the complainant with the monies owed to her.

He undertook to confirm to the adjudicator that monies owed to her had been paid.

Preliminary point.

Complaint submitted under the incorrect Act.

The complainant has asked the adjudicator to examine her complaint under the payment of Wages Act, 1991, though it had been submitted under the Terms of Employment (Information) Act, 1994.

 The respondent contends that her complaint must be examined within the confines of the Act of 1994 as per her original complaint form.

 The authority afforded to statutory tribunals to amend pleadings was considered by McGovern J in County Louth Vocational Education Committee v The Equality Tribunal [2009] IEHC 370, a complaint of discrimination. He had to consider if incidents concerning discrimination not presented in the EE1 form and going back over a period of 10 years should be admissible. He stated

“I accept the submission on behalf of the respondent that the Form EEl was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EEl, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

He held that the respondent in the claim

“must be given a reasonable opportunity to deal with these complaints, and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice”.

He went on the observe that the applicant 

“had ample notice of the claim being made against his employees and should have been in a position to deal with them at the hearing before the Equality Officer”

Applying the tenets of the above judgement to the circumstances of the instant case, the key requirement which must be met is that the justice of the case allows it (an amendment).

The complaint form is a non-statutory form, enabling a complainant to set out the content of their complaint

In the instant complaint, the complainant identified the Terms of Employment (Information) Act, 1994 as the statutory route through which she might secure a remedy.

The first sentence of the complainant’s narrative in her complaint form states, “this is an unlawful deduction of wages”. The same narrative goes on to specify that the contravention concerns a reduction in overtime rates and a reduction in Sunday premium payments.

It is evident from the narrative that the complainant is referring to a change in terms which resulted in a deduction from her wages. The respondent was on notice of these precise statements for over 5 months prior to the hearing. The respondent had ample opportunity to address them in the course of the hearing.

I find that the essential criterion, ‘where the justice of the case requires it’, expressed in McGowan J’s ruling above is met in the instant case. I find that the justice of the case requires that her complaint should be addressed under the Payment of wages Act, 1991.

Substantive Complaint.

The deduction.

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, as a preliminary point, identify a contractual entitlement or an entitlement on some other basis as per section 5 (6) of the Act.

The complainant misunderstood the nature of an adjudication process and seemed to believe that the onus was on the adjudicator to investigate that which had not been laid before her.

The complainant made out her case in relation to only one deduction that being a failure to pay her double time for hours worked on Sunday 28/7/23. She presented no details of the actual monies reportedly deducted from her on other dates.

The complainant’s evidence that she had been paid double time for hours worked on Sundays up until Sunday 28/7/23 was not contested. Her unsigned contract of 2019 provides for double time on Sundays.

On the basis of the uncontested, direct, evidence, I accept that double time for hours worked on Sunday 28/7/2023 was properly payable to the complainant. I find that there that there was no statutory basis for this deduction.

In the absence of evidence confirming that she had been paid double time on Sunday 28/7/23, I find that the failure to pay her the sum of €97.50 (based on her hourly rate of €12.50) was an unauthorised deduction and contravened section 5 (1) of the Act of 1991.

I find this complaint to be well founded.

I require the respondent to pay the complainant the sum of €97.50 subject to all lawful deductions.

I decide that this complaint is well founded.

I require the respondent to pay the complainant the sum of €97.50 subject to all lawful deductions

Unauthorised deduction.