Adjudication Reference: ADJ-00053717
Parties:
| Complainant | Respondent |
Parties | Freddie Marks | Waterford City and County Council |
Representatives | Self-represented | Keith Irvine Local Government Management Agency (LGMA) |
Complaints:
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-00062956-001 | 19/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00062956-002 | 19/04/2024 |
Date of Adjudication Hearing: 12/11/2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant submitted two complaints in relation to his contract of employment and payment for duties undertaken.
Summary of Complainant’s Case:
The Complainant submitted a claim form that stated that his terms and conditions of employment had changed without notification and he had not been paid properly for looking after the opening and closing of cemetery gates. He also made an oral submission summarised as follows:
He stated that there was a change in his terms and conditions in 2019 and he was brought to Dungarvan to open and close the cemetery. He then had two jobs – parks and open spaces and cemetery opening and closing. As far as he knew double time was paid in the past and when he made a complaint to HR and Management, he got nowhere.
Summary of Respondent’s Case:
CA-00062956-001
The Council assert that as the WRC Complaint was received by the Workplace Relations Commission on 14th April 2024, the jurisdiction of the Adjudicator in relation to the complaint, per the Workplace Relations Act 2015 is the 6-month period prior to the submission of the complaint i.e. from 15th November 2023 to 14th April 2024.
The claimant has been employed with the Council since March 2000 as a temporary General Operative, receiving a Permanent Contract in July 2002.
He was appointed as a Ganger on 28th April 2008 following an internal competition. However, in July 2008 he informed the Council he was no longer interested in this position and sought to return to Water Services as a General Operative; with his request being granted.
On 1st August 2014, following another internal competition, he was appointed to the post of Ganger in the Open Spaces Department; reporting to the General Services Supervisor (GSS).
This complaint is submitted by the claimant under section 7 of the Terms of Employment (information) Act 1994. This relates to an alleged contravention of section 3, 4, 5 or 6 of the Act in relation to the claimant.
The Council would assert that the WRC Complaint Form does not provide any details of alleged breaches of the Act where the Council have provided a contract of employment is accordance with same.
CA-00062956-002
This complaint is submitted by the claimant under section 6 of the Payment of Wages Act 1991. From the WRC Complaint Form, the Council has no knowledge or understanding of the alleged deduction. However, the Council note the WRC Complaint Form states: “Get paid hours looking after gates new cemetery when in work removed”
No date or dates have been identified by the claimant in relation to an alleged breach of Section 5 of the Act and the Council assert that all money properly payable to the claimant has been provided to him.
The Council would also raise a point where no specific section or breach of the Act has been alleged and it does not see that any specific breach of the Act has taken place. From the WRC Complaint Form the Council assume the complaint relates to Kilbarry Cemetery Gates.
In relation to Kilbarry/ St. Otteran’s Cemetery Gates the claimant is provided with 4 hours at double time when rostered at the weekend (for each day worked) as payment in respect of opening and closing the cemetery gates. During the 6-month period prior to the WRC Complaint being submitted the claimant was paid for all work undertaken in relation to the cemetery and the Council has not been made aware of any occasions where he has worked but was not paid.
Overtime is paid in the cemetery to the claimant for opening and closing the gates with 2 hours Saturday and 2 hours on Sunday (at overtime rates of double time). In addition to this the claimant is also paid an additional 1-hour overtime (at the weekends) for opening and closing Toilets. Overtime is also paid to the claimant when attending for burials at the weekend.
The claimant, on occasion, would sometimes work a full day (8am to 4.30pm) on a Saturday or Sunday as overtime. In such cases, the claimant would only be paid overtime for the hours worked (at overtime rates). In these circumstances the claimant would not have been paid additional overtime for opening /closing the cemetery gates/ toilets, as they were already getting overtime for being on site.
The Council is unaware of any breach of the Act in relation to the WRC Complaint or where no details of any alleged breach have been provided in the WRC Complaint Form.
Findings and Conclusions:
CA-00062956-001 Terms of Employment (Information) Act 1994
Section 5 of the Act provides:
5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of
the particulars of the statement furnished by an employer under section 3, 4 or 6,
the employer shall notify the employee in writing of the nature and date of the change
as soon as may be thereafter, but not later than—
(a) the day on which the change takes effect…
The main complaint the Complainant has is that the Respondent acted in breach of his contract when he was assigned to open and close cemetery/cemeteries and he was not paid adequately.
It was established that he was paid overtime. He was unhappy that previous holders of the job were given extra payment in the past. The matter in relation to this aspect is dealt with in CA-00062956-002 below. In relation to his claim that the Respondent acted in breach of his contract is not well founded. I find the complaint to be not well founded.
CA-00062956-002 Payment of Wages Act 1991
Section 5 of the Act provides:
5.—(1) 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 Act provides:
(6) Where— |
( a ) the total amount of any 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. |
In order to succeed in his complaint, the Complainant must demonstrate that wages properly payable to him were withheld.
While the detail of the complaint was unclear, it appears to relate to a time when employees were given extra payment for opening and closing cemeteries. In the hearing, the Complainant confirmed that he was given overtime at the weekends. I accept the Respondent’s submission that the Complainant was properly paid for overtime and that no deductions were made in respect of same. I find the complaint to be not well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00062956-001
For the reasons cited, I have decided that the complaint is not well founded.
CA-00062956-002
For the reasons cited, I have decided that the complaint is not well founded.
Dated: 16th January 2025
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Terms of Employment (Information Act, Payment of Wages Act, complaints not well founded. |