ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051399
Parties:
| Complainant | Respondent |
Parties | Tinka Zapryanova | Borgo Accounting Ltd |
| Complainant | Respondent |
Anonymised Parties |
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Representatives |
| Paul Carroll O’Mara Geraghty McCourt |
Complaint:
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-00063026-001 | 24/04/2024 |
Date of Adjudication Hearing: 25/04/2024 and10/07/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General that matter can be referred by the said Director General to the Adjudication services.
The Complainant herein has brought a complaint of a contravention of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015. Following the said referral,it is incumbent on the assigned Adjudicator to make all relevant enquiries into the complaint. This will include hearing oral evidence, considering submissions made and receiving other relevant evidence.
In particular, the Complainant herein has referred the following complaint:
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
By way of preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 1st of February 2019 was submitted within the time allowed.
“Wages”, in relation to an employee , means any sum payable to the employee by the employer in connection with the 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 contact of employment or otherwise, and
- (b) Any sum payable to the employee on the termination by the employer of the Contract of Employment without his having given to the employee the appropriate notice of the termination, being a sum paid in lieu of the giving of such notice:
As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).
The Act (at Section 41(8)) does allow for an exception where I can extend that period to twelve months if a Complainant can demonstrate that that the failure to present the complaint within the first six-month period (after the contravention) was due to reasonable cause
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 24th of April 2024. In line with the Workplace Relations (Miscellaneous Provisions) Act, 2021 which came into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, it is open to me to direct that all parties giving oral evidence before me, to swear an oath or make an affirmation as may be appropriate. In the interests of progressing this matter, I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.
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Summary of Complainant’s Case:
Over the course of the two days, the Complainant was not represented and made her own case. The Complainant provided me with a comprehensive submission dated the 24th of April 2024. The Complainant was also given an opportunity to give oral evidence. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. No objection was raised to any of the materials/documents relied upon by the Complainant in the making of her case. The Complainant raises a number of issues in her workplace relations complaint form which issued on the 24th of April 2024 some three months after the termination of the employment. The complainant asserts that there has been an unlawful deduction of her wages. In her complaint form she states: I was asked verbally by management to do overtime to assist the firm with the completion of Income tax returns, so that the Income tax deadline 15th November 2023 was met. I recorded 29.5 hours overtime in my timesheets. The management had assured me I can use this time in lieu after the deadlines are over in December 2023. In December 2023 there was no possibility for this time in lieu to be used, as I was on sick leave and shortly after that my notice period commenced. In December 2023 when I enquired about my overtime, I was advised by management that according to my contract, which was never provided to me in the appropriate manner, I am not allowed to be paid for the overtime worked. Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. On the first day of hearing the Complainant and the Respondent confirmed that the Complainant had previously issued ADJ File (ADJ 50260). This contained a number of other claims. The parties agreed to have all these matters heard together. I understand that between the first and second dates of hearing that the Complainant issued a separate complaint form ADJ File 52526. This ADJ File 52526 was not before me and has yet to be assigned a Case Officer and a date for hearing. It is noted that the Complainant prepared a further submission as of the 3rd of July 2024 which was just before the resumed hearing date of July 10th. This submission ought properly be read alongside the newly issued ADJ File 52526. The Respondent objected to any part of this submission being put into the Adjudication process before me in circumstances where the Complainant had already given and completed her evidence on the first day of hearing in April 2024. It is submitted that an entirely fresh submission introduced at this late stage would be unfair. I agree that I cannot re-run the complainant’s evidence as she has already been cross examined on foot of the oral evidence given by her. I accepted the Respondent position in this regard. It was not possible to read this most recent submission into evidence where it might contradict or enhance the Complainant’s oral evidence already given and completed. The second day of hearing was given over to the Respondent’s evidence with both parties invited to give a final oral submission in the afternoon. I confirm that the Complainant was not satisfied to have this submission set aside and stated that this decision interfered with her right to have her case fully heard. |
Summary of Respondent’s Case:
The Respondent had full legal representation at this hearing. The Company Director (Mr. E) gave evidence on behalf of the Company. The Respondent provided me with two written submissions. The first was dated the 18th of April 2024 and was received in advance of the first hearing date. The second written submission was received on the 21st of June 2024 and was received in response to a this ADJ file (ADJ 51399) which issued in April of 2024 and concerned a Payment of Wages claim. The parties agreed on the first day of hearing that both of the two related ADJ files 50260 and 51399 should be heard together. All oral evidence was heard following an Affirmation. The Respondent witness was challenged by the Complainant. The Respondent rejects that there has been an unlawful deduction of wages. Any overtime that was worked was a rarity and time off in lieu was standard recompense. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I am satisfied that the Complainant’s Contract of Employment dated 5 August 2021 between Icon Accountancy & Taxation Services Ltd and Tina Zapryanova contained the following clauses “4.2 From time to time, based on Borgo Accounting Limited business needs, you may be requested to work hours in addition to the normal working hours, and your co-operation in this regard will be appreciated. Where possible, any such requirement will be notified to you in advance by your immediate Manager/Supervisor. 4.3 You will not normally be entitled to additional remuneration for any hours worked in excess of normal hours per week. However, it is the Company’s practice to pay for overtime at weekends; this will be paid at your normal basic rate of pay.” The Respondent issued a letter (the “TUPE Letter”) to the Complainant on 29 June 2022 in which it was confirmed that Icon Accountancy & Taxation Services Limited intended to transfer its business as a going concern to a new company on 31 July 2022. The TUPE Letter confirmed to the Complainant that from close of business on 31 July 2022, her contract of employment would transfer to the new entity and there would be no change in her terms and conditions of employment. I am satisfied that this Contract of employment was preserved through the Merger and continued to operate up to the time that the complainant resigned her position by reason of a Constructive Dismissal in and around December of 2023. Although certain proposed iterations of a new updated Contract were mooted, none was ever signed off on, with the result that the complainant’s terms and conditions as regards overtime did not change. I understand that each and every proposed version of the Contract of Employment furnished to the Complainant contained the same clauses 4.2 and 4.3 as set out above. In practise it has been put to me that the team of which the Complainant was a member was expected to work some extra hours, if necessary, in order to meet unyielding tax deadlines, and the Respondent would always allow some flexibility in attendance in the period after the deadlines had passed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00063026-001 – The complaint herein is not well founded. The complainant had no Contractual entitlement to be paid overtime.
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Dated: 10th of September 2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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