Complainant

Respondent

Parties

Agnieszka  Rdzanek

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-00059545-001

23/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059545-002

23/10/2023

The complainant has submitted a complaint under the Payment of Wages Act, 1991, and a complaint under the Organisation of Working Time Act, 1997.

The complainant commenced work with the respondent and its predecessor on the 28/2/2011.

The complainant works 30 hours a week as a cleaner for an hourly rate of €12.50.

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

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.

CA-00059545-001 Complaint under section 6 of the Payment of Wages Act, 1991

The complainant gave evidence under affirmation.

The complainant has worked as a cleaner with the respondent and his predecessor since 2011.

The complainant states that the respondent made an unlawful deduction of €81.25 from her wages on the 6/7/23. This sum of €81.25 represents the failure of the respondent to pay her at the rate of time and a half for 13 hours of overtime worked by her during the period 29/5/23- 14/5/23 . Her hourly rate is €12.50. The rate increases to €14.61 for hours worked after midnight.

Her contract of 31/3/2016 provided for overtime rates of time and a half to kick in after 39 hours, guaranteeing time and half for the first 4 hours worked in excess of 39 hours a week and double time for all hours after the first 4 hours. But she came to an agreement with the respondent that overtime rates would kick in after 30 hours, with a rate of time and a half payable for the first 4 hours worked in excess of 30 hours a week and double time for all hours after the first 4 hours.

This was the practice employed by the respondent since 2018.She submitted payslips demonstrating that she was paid at the flat rate for 30 hours, and at overtime rates after having reached 30 hours.

The complainant disputes the respondent’s contention that ERO, S.I. No. 110 of 2022, which provides for overtime rates to be paid after the employee has worked 46 hours, Monday to Sunday, prevents them from honouring their contractual obligations to her as   PART IV pf the said ERO allows for the retention of equal if not better terms.

Her contract was in place for 5 years before the respondent advised her on 19/6/23 that they would have to be bound by the ERO and not the agreed contractual terms.

CA-00059545-002 under section 27 of the Organisation of Working Time Act, 1997

 This complaint concerns the respondent’s failure to pay the complainant a Sunday premium on 13/8/23, in accordance with section 14 of the Act of 1997.

Her contract specifies that she will be paid double time on Sundays. The respondent honoured this term of her contract until August 2023 when they announced that double time would only come into effect after she had worked her contractual hours.

CA-00059545-001 Complaint under section 6 of the Payment of Wages Act, 1991

The respondent’s representative denies that that they have breached the terms of the Payment of Wages Act, 1991.

The respondent’s representative states that he understands that the complainant was reimbursed with the correct amount which was included in her September salary and refers to a letter from the respondent Account Director in August 2023 stating that the company had reversed their decision of June 2023 and now intended to honour contractual terms as opposed to applying the terms of S.I No. 110 of 2022.

CA-00059545-002 under section 27 of the Organisation of Working Time Act, 1997

The respondent’s representative denies that that they have breached the terms of Organisation of Working Time Act, 1997.

The respondent’s position is that double time is paid on Sundays for hours worked in excess of the complainant’s contracted hours. As she didn’t exceed her contracted hours, no premium payment for hours worked on Sunday was due to her.

CA-00059545-001 Complaint under section 6 of the Payment of Wages Act, 1991.

I am required to determine if the respondent unlawfully deducted the sum of € 81.25 from the complainant’s wages on the 6/7/2023 in respect of 13 hours overtime worked by her during the seventeen-day period of 29/5/23- 14/6/2023.

The cognisable period is 24/4/23—23/10/23.

Her hourly rate is €12.50; time and a half is €18.75, multiplied by 13 amounts to €243.75. Yet she was only paid the flat rate of €12.50 or €162.50 for these 13 hours leading to deduction of €81.25

The respondent’s representative stated that that he understood that the complainant was paid this amount in September, but no direct evidence as opposed to an understanding confirming that payment had been made  was submitted. Nor were  pay slips presented at the hearing, or afterwards, to demonstrate that the complainant had been paid the disputed amount or to challenge her direct evidence.

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 complaint’s contract of 2016 states that time and a half will be paid for the first 4 hours worked in excess of 39 hours, changed, upon agreement to 30 hours, and honoured thereafter, and double time from the 5th hour in excess of 30 hours per week.

The existence of an agreement between the complainant and the respondent that her contracted hours had changed to 30 per week was not contested.

It was not contested that this agreement was honoured and implemented up until May 2023 and overtime hours in excess of 30 were paid to the complainant until April 2023.

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 that the failure to pay her sum of €81.25 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 €81.25 subject to all lawful deductions.

CA-00059545-002 under section 27 of the Organisation of Working Time Act, 1997

The complainant maintains that the respondent has contravened section 14 of the Act of 1997.

The complainant submitted rosters which show that she worked on one Sunday that being the 13/8/2023 for which she was not paid any premium payment.

The cognisable period is 24/4/23—23/10/23.

Relevant Law

Section 14 provides as follows:

“14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.”

The complainant’s evidence was that she was paid double time for hours worked on Sundays up until 28/7/23. Her evidence was that she was paid a flat rate for Sundays worked after that date and thus denied a premium payment.

The respondent’s position is that ERO, S.I 110/2022 supplanted the contract of 2016 and that the respondent was bound by the ERO which, they contend, constrained them for offering Sunday premia payments until the complainant had met the threshold of her contracted hours.

The complainant’s contract of 2016 provides for “double time for Sunday”.

 S.I. 110/2022 – Employment Regulation Order (Contract Cleaning Industry Joint Labour Committee) 2022 at part 1V, Existing Agreements, states

“‘This Employment Regulation Order does not affect in any way already existing agreements (if equal or better) be they local, national, official or in company”.

Due to Part IV, I find that S.I 110/2022 does not vitiate the payment of Sunday premium payments and fails to relieve the respondent of the obligation to comply with section 14 of the Act of 1997. That provision does not specify a specific amount but does require an increase in the employee’s rate of pay

 “by such an amount as is reasonable having regard to all the circumstances”.

The circumstances are that the complainant was paid double time for hours worked on Sunday up until 2023 and it is reasonable for the respondent given that this was the accepted rate to pay the complainant double time.

The complaint submitted rosters which show that she worked on one Sunday that being the 13/8/2023 for which she was not paid any premium payment.

I find that the failure to pay her any premium payment on Sunday 13/8 /2023 amounts to a contravention of section 14 of the Act of 1997.

I find this complaint to be well founded.

Section 27 (3) of the Act provides that:

 “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a)    declare that the complaint was or, as the case may be, was not well founded

(b)    , (b) require the employer to comply with the relevant provision,

(c)     (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.]

I require the respondent to pay the complainant compensation of €1500 for the one breach, a sum equivalent to four weeks wages, an amount which I consider to be  just and equitable in light of the circumstances.

CA-00059545-001 Complaint under section 6 of the Payment of Wages Act, 1991.

I find this complaint to be well founded.

I decide that the respondent pay the complainant the sum of €81.25 subject to all lawful deductions

CA-00059545-002 under section 27 of the Organisation of Working Time Act, 1997

I find this complaint to be well founded.

I decide that the respondent should pay the complainant compensation of €1500, which equals four weeks wages, it being an amount which I consider to be just and equitable in light of all of the circumstances.

ERO: Sunday Premia.