ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051193
Parties:
| Complainant | Respondent |
Parties | Wojciech Lewandowski | Dublin Airport Authority |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | John O’Sullivan SIPTU | Yvonne Fountain, IR Business Partner Jean Darcy, IR Business Partner |
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-00062709-001 | 10/04/2024 |
Date of Adjudication Hearing: 24/10/2024
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
The Complainant 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.
Following said referral, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
It is noted that per Section 4 an Employer shall give or cause to be given to an employee a statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom.
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 10th of April 2024 was submitted within the time allowed.
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).
Background:
This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. 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.
I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me.
I confirm that I have administered the said Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.
It should also be noted that the Complainant and Respondent witnesses were all agreeable to giving a formal affirmation that all evidence provided would be truthful.
The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 10th of April 2024.
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Summary of Complainant’s Case:
The Complainant was fully represented. The Complainant was represented by a member of SIPTU. At the outset the Complainant agreed to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 15th of August 2024. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making his case. The Evidence adduced by the complainant and was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that unlawful deductions have been made from the Employee’s wage. 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. |
Summary of Respondent’s Case:
The Respondent entity was represented by two HR/IR Manager. The Respondent provided me with a written submissions dated 22nd of October 2024. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case The Respondent rejects that there has been any unlawful deduction and does not accept any contravention of Employment Rights as protected by statute. 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:
The complainant commenced his employment in 2016. He worked initially on a permanent part-time Contract of 27 hours over each weekend. He worked three nine-hour shifts as I understand it. I understand that at that time the Complainant was compensated for Public Holidays as follows: If the Plaintiff worked his normal shifts in a week when there was a public holiday, but where he did not work on the actual public holiday, the Complainant would get 20% of the hours he worked in either extra pay or time off in lieu. In effect this meant that the Complainant got an extras 5.5 hours over and above his regular pay. If the Complainant happened to work on the day of a Bank Holiday, he would get 20% of his weekly hours at a double rate of pay. This meant that for every weekend that included a Bank Holiday the Complainant received 11 hours of extra pay or time in lieu. The Complainant subsequently moved to a permanent full-time position. He now worked a 40 hour week and moved from Terminal 1 to Terminal 2. The Complainant was advised that his Terms and conditions of Employment would remain the same. The Contract of Employment initially received in 2017 was updated by a letter of the 29th of September 2023 which was opened to me. The Letter confirms to the Complainant that: "Your current Terms & Conditions will remain unchanged" It seems to me that it is appropriate that the parties should therefore consider themselves bound by the Contractual terms and conditions which pertained before the increase in hours/ full time position was offered. Whilst most of these terms and conditions are available in the printed Contract of Employment, some will be implied by reason of how things had operated heretofore. It was open to the Respondent at that time to clarify if there was going to be as significant change in how calculations were going to be performed. In particular, it seems appropriate that the Complainant might assume that the operation of the Public Holiday payments which the Complainant had received up to the point when the Complainant moved to a 40-hour week Contract, would subsist. As it happens the calculations around the Public Holiday pay differed somewhat from those enjoyed by the Complainant previously. The Respondent has explained that when the Complainant was working under the 27 hour Contract he was working in an area which had the benefit of a local arrangement which they say did not move with him to the new position in the new area and under a 40 hour Contract. I understand that the move from Terminal 1 to Terminal 2 is noteworthy here. It seems to be agreed that the Complainant was not made aware of the changes in the approach being taken for the purpose of calculating Public Holiday payments. I understand that the compensation for Bank Holidays not actually worked is not in issue. The difference appears to be the compensation now payable if the Complainant does work on a Bank Holiday. Ther Complainant has made the case that he was getting paid up to five hours less per worked Bank Holiday as he would have been getting paid under the old arrangement. Aggrieved at the unilateral change in his terms and conditions and in the financial shortfall, the Complainant lodged a complaint on the 10th of April 2024. There are therefore six Bank Holidays under consideration given the six-month cognisable period. Of these three were worked. In effect the Complainant says the Respondent has made an unlawful deduction. I agree that there has been a deduction, and my decision includes a direction to the Employer to pay compensation. I am aware that the parties may opt to operate a time in lieu option instead and that may be discussed as between them.
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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-00062709-001 – The Complainant herein is well founded, and I direct that the Respondent pay to the Complainant a sum of €300.00
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Dated: 15th of January 2025
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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