Complainant

Respondent

Parties

Sylwia  Kata

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-00059549-001

23/10/2023

The complainant has presented a complaint of an unlawful deduction from her wages on 21/11/2022 and on subsequent dates.

The complainant has been employed as a cleaning operative since 6/11/2018.

She works 39 hours a week and is currently paid an hourly rate of €12.70.

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

The respondent sought a postponement in the absence of a respondent witness whom he believed was in the country. He had requested a postponement within 5 days of receipt of notification of the hearing date.  In the context of a notification having issued 7 weeks previously, and in the absence of any documentary evidence explaining the reasons for this witness’s unavailability, plus the complainant’s objection, the adjudicator decided that the hearing should proceed

 The complainant gave evidence under affirmation.

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

She contends that the respondent has made three unlawful deductions contrary to the provisions of the Act. The complainant submitted her complaint to the WRC on 23/10/23

First alleged contravention on the 21/11/22.

The complainant’s own evidence is that the beginning of the contravention to which the complaint relates occurred on the 21/11/22.

The complaint’s written contract provided for overtime rates of time and a half for hours worked in excess of 44, but the respondent, in 2018, agreed to implement overtime rates once her hours reached 39 a week. This has been the practice up until November 2022, when instead of being paid time and a half for each hour worked in excess of 39, and double the hourly rate for hours worked in excess of 44, the respondent withheld overtime rates until her hours exceeded 44 a week.

She stopped doing overtime at that point.

The respondent furthermore failed to pay her double time for hours worked on Sundays.

I advised the complainant of the statutory time limits and the requirements of section 41 of the Workplace Relations Act, 2015. I advised the complainant that the cognisable period for the purposes of this element of her complaint is 24/5/23-23/10/23 as per section 41 of the Workplace Relations Act, 2015.

The complainant asked me to accept that she had reasonable cause for an extension of time as per section 41(8) of the Workplace Relations Act, 2015 in that she did not realise the respondent was in breach of their statutory obligations towards her as set out in the Act of 1991.

The complainant submits that this meets the requirement set out in section 41(8) of the Workplace Relations Act, 2015.

The admissibility of this element of her complaint will be addressed in the Findings and Conclusions of this decision.

Deductions in respect of overtime worked between 24/5/23-23/10/23.

The complainant requested that I consider the contraventions occurring during this period when she was denied the overtime rate of time and a half for hours worked in excess of 39 per week.

She stated that she is currently being paid overtime

In order to consider this alleged contravention, I advised the complainant that I would require exact details on the total number of hours worked, total number of overtime hours, dates on which she did overtime, and the amount of the deduction. I asked the complainant to submit these details within   2 weeks.

Deductions in respect of Sunday payments from 29/8/23 to 23/10/23.

The third contravention presented by the complainant is the failure of the respondent to pay her double time for working on Sundays during the above period. During this period, she worked every second Sunday.

This was change as from December 2018 up until the end of August 2023, she was paid double time for each Sunday worked.

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

Overtime Rates.

Firstly, the respondent submits that the reduction in the threshold necessary for payment of overtime from 44 hours to 39 hours a week was done without the authorisation of the company and was put in place by the Night Supervisor who did not have the authority to make this change.

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 now honour the terms of her contract which now meant time and a half for hours worked in excess of 44 hours per week, and not 46 hours as provided for in the ERO 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 the September 2023 pay cheque. There are no outstanding monies owed to the complainant. No unauthorised deduction took place.

Sunday rates of payment.

The respondent’s representative states that the complainant’s contract provides that Sunday payment rate s will only kick in after the complainant has exceeded 44 hours in the week.

The complainant is owed no money.

No unauthorised deduction took place.

I am required to establish if deductions occurring

 on 22/11/22, plus,

deductions occurring during the period    24/5/23-23/10/23,and

 the failure of the respondent to pay double time for hours worked on Sundays from 29/8/23 to  23/10/23 contravenes the Act of 1991.

The deduction of overtime payments on 22/11/22

 Cognisable period.

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

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 39 and double the hourly rate for hours worked in excess of 44, and , instead, imposed a higher threshold of 44 hours per week before  overtime rates of time and a half could kick in.

She identified the deduction as €582 at that date.

Relevant Law.

The cognisable period for the purposes of this complaint is 24/5/23-23/10/23 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”

Section 41 (8) states:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failureto present the complaint or refer the dispute within that period was due to reasonable cause.”

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 asked me to accept that she had reasonable clause as the respondent failed to be clear with her as to what deductions were to be implemented. She did not realise the respondent was in breach of their statutory obligations towards her as set out in the Act of 1991.The complainant submits that this meets the requirement set out in section 41(8) of the Workplace Relations Act, 2015.

Findings and conclusions on the admissibility of the contravention occurring on the 21/11/22.

In terms of section 41(8) availing the complainant, the matter of reasonable cause has been addressed in many decisions. In Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 the test was set out in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Lack of Knowledge

In Minister for Finance v Civil and Public Services Union and Others [2007] 18 ELR 36, Laffoy J. held that lack of knowledge in this regard does not prevent the statutory limitation period from starting to run. She held that

“…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

Furthermore, the complainant had legal advice from June 2023 and could have submitted her complaint at that time.

 Hence, I cannot find that the complainant has not met the requirement to afford an excuse for the delay as set out in Skanska.

Based on the evidence and precedent, I cannot find that I have jurisdiction to hear this contravention of 21/11/2022.

The admissibility of the in -time deductions occurring between 24/5/23-23/10/23.

I gave the complainant two weeks to provide me with details as to the total number of hours worked in this period, the total number of overtime hours worked and the dates, and the amount of the deduction.

The complainant declined to make this submission.

I find that the complainant has failed to make out her case in relation to the alleged deduction.

Failure to pay the complainant double time for hours worked on Sundays during the period 29/8/23 to 23/10/23.

 The complainant’s uncontested evidence was that she was paid double time for hours worked on Sundays up until August 2023. For the period 29/8/23 to 23/10/23 she worked every second Sunday for which she was paid a flat rate of €12.70 an hour for the four Sundays which fell within this period.

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.’

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee).

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.”

The respondent’s representative asks me to accept that no unauthorised deduction occurred as she was paid as per her contract. It states overtime shall be paid after 44 hours worked Monday to Sunday. Overtime on Sundays shall be paid a rate of double the hourly rate. They contend the complainant had not met the threshold of her contracted hours.

But the uncontested evidence is that she was paid double time for hours worked on Sundays from 2018 – 2023.

As a first step in establishing the existence or not of an unlawful deduction, the complainant must, as a preliminary point, identify that the amount claimed was properly payable.

Bearing in mind the obligation on the employer to demonstrate that the deduction was fair and reasonable, and that the absence of same can compromise the respondent ‘s ability to justify a deduction, the circumstances are that the complainant was paid double time for hours worked on Sunday up until late August 2023. It is not reasonable for the respondent given that this was the accepted rate for a period of four years, and that the complainant had a legitimate expectation that this would continue, to discontinue the payment of double time for hours worked on Sundays.

The circumstances are that the complainant enjoys a statutory right- albeit under another statute- to be paid more than the flat rate for working on Sundays. Section 14 of the Organisation of Working Time Act, 1997 obliges an employer to compensate an employee for working on Sundays and there was no reference in the complainant’s contract to any element of her hourly rate compensating her for Sunday work. I do not find that it is reasonable for the respondent to ignore this obligation.

The uncontested evidence is that the complainant worked 5 days a work for a total of 39 hours at a flat rate of €12.70 per hour.

 On the basis of the uncontested, direct, evidence, I accept that the complainant was entitled to be paid double the hourly rate that being €25.40 ,and that there was no statutory basis for this deduction of €12.70 per hour on the 4 Sundays which fell within this period.

I find that the respondent’s failure to pay the complainant double time for hours worked on these four Sundays amounts to a deduction of €396 and is a deduction that contravenes section 5(1) of the Act of 1991.

On the basis of the uncontested, direct, evidence, I accept that the complainant was entitled to be paid for the overtime worked and that there was no statutory basis for any deduction.

I find this complaint to be well founded.

I require the respondent to pay the complainant the sum of €396 subject to all lawful deductions.

I decide that this complaint is well founded.

I require the respondent to pay the complainant the sum of €396 subject to all lawful deductions.

Unlawful Deduction