Workplace Relations Commission (WRC) - RECENT Decisions & judgements
Complainant case fails under the Payment of Wages Act 1991
Adjudication Reference: ADJ-00009709
The Complainant went on sick leave on the 16th of September 2016. During 2016 he was paid for eight weeks’ full pay and eight weeks’ half pay. His employment ended on the 2nd of September 2017 on his resignation. His complaint was that there was a sick policy with the Respondent, but he was not being paid in accordance with the sick pay policy. The policy had stated that there was a potential entitlement to discretionary company sick pay. This was to vary with the length of service at the time of the commencement of the period of sickness. It went on to state that no more than the total entitlement cited would be paid in any one service year. As the Complainant was deemed to have more than three years’ service, it stated that the entitlement was eight weeks at full pay and eight weeks at half pay. There was no definition of service year in the contract however the annual leave year was defined as “the company holiday year runs from the 1st of January to December 31st”. The Complainant’s case was that the discretion was not exercised by the company and the company did not pay the sick pay being eight weeks’ full pay and eight weeks’ half pay in 2017.
The Complainant’s further case was that he was entitled to his pension payment arising from his sick pay at 8% of his base salary.
The Respondent’s case is that the Complainant started working for a different company on the 27th of August 2012 but due to a transfer of undertaking he transferred to the Respondent on the 15th of February 2016 on his existing terms and conditions. He was provided with a new contract of employment by the Respondent and there was a number of amendments made to that contract arising from the obligations under the transfer of undertakings regulations. The Respondent relied on the definitions set out in the Payment of Wages Act. It submitted that pensions are not mentioned in the definition of wages but are mentioned in the exclusion clause. The Respondent’s submission was that clearly, they were separate items and there was no basis on which it could be read that pensions are included in the definition of wages.
The Respondent’s submission was that the entitlement to company sick pay was discretionary and that the vast majority of Employees would have no entitlement to sick pay in the company. Its submission was that the periods referable in the sick pay policy in the contract were referable to “years of service” and that the service year is different in language to the annual leave year.
The submission made was that the service year would vary from Employee to Employee. The use of the phrase “service year” was a deliberate use of language.
The Respondent set out that the different levels of sick pay specifically referred to the level of service that the Employee had with the Respondent. Employees could not pick and choose their level of service. The service year related to the anniversary of the start date of the Complainant in employment.
In addition, it also submitted that although the policy set out the maximum entitlement, it was still discretionary. The Respondent set out that it did exercise its discretion and it did award eight weeks’ full pay and eight weeks half pay to the Complainant. The Respondent’s position was that the Complainant had exhausted his entitlements for sick pay in these payments and he was not entitled to any further payment in the service year to the 26th of August 2017. The Respondent noted that the Complainant resigned on the 2nd of July 2017.
The Adjudication Officer stated that it is the Employer’s duty to pay wages or remuneration as agreed between Employer and Employee in the contract of employment. The obligation to pay is both a statutory and contractual duty.
The Adjudication Officer decided that a pension deduction is not a payment by way of a pension within the meaning of the Act and accordingly disagree with the Respondent’s submission that the matter is outside the scope of my jurisdiction. Clause 3 is a conditional clause. It is qualified and is conditional. Firstly, it sets out that the company sick pay is discretionary and it goes on to state that it varies with length of service at the time of the commencement of the period of sick leave. There is table of different service periods. The clause goes on to state that no more than the total entitlement cited below would be paid in any one service year.
The Adjudication Officer found that the potential entitlement is linked to the amount of years worked with the company. As there is no definition of service year in the contract, The Adjudication Officer gave it its ordinary understanding linked to the start date of the Complainant. The Adjudication Officer found that “service year” for the Complainant is between 27th of August of one year and the 26th of August the following year. As regards the Complainants pension entitlement, this as per his contract is linked to his base salary. The Adjudication Officer noted that the Complainant was paid his sick pay - eight weeks’ full pay and eight weeks’ half pay - from the period 16th of September 2016 to the first week in January 2017. He was also paid his pension contributions up to that date. The Adjudication Officers decision is that the requirement to pay sick pay was in the service year 27th of August 2016 to the 26th of August 2017.
The Adjudication Officer found that the Complainant was paid his full sick pay entitlement and pension contribution or premium for this period. As the payment of his pension is linked to his salary, The Adjudication Officer further found that while not being paid by the company his base salary or sick pay, there is no requirement to pay the pension contribution.
Complainant awarded €2992 for shortfall in wages
Adjudication Reference: ADJ-00009662
The Complainant had been employed by the Respondent since 1st March 2016, when they acquired the previous entity as a result of a Transfer of Undertaking on that date. The Complainant had been employed in the previous entity since December 2006.
The Complainant claims that while she had been in receipt of full-time hours prior to the Transfer of Undertaking, her hours of work have been progressively reduced since then. The Complainant claims that this is in breach of the terms and conditions of employment. The Complainant is claiming that this amounts to a breach of the Payment of Wages Act and seeks accommodation accordingly.
In 2008 the Complainant was paid €9.50, which represented an increase on her previous rate due to additional responsibilities. The Complainant claims that the rate of pay remained the same for the duration of her employment. The Complainant stated that she worked on average 40 hours per week but this sometimes increased during busy periods.
On 13th January 2016, the Complainant received a letter from a firm of accountants, regarding the fact that her then Employers were in receivership. The Complainant received a further letter on 29th February 2016 informing her that her employment would transfer to the Respondents. This letter also informed her that her existing terms and conditions with not be impacted. However, on 21st April 2016 the Complainant received a Contract of Employment which described her position. This letter also stated that her working hours were to be on a casual basis.
The Complainant refused to sign this contract and asserted her existing conditions of employment. This led to some dispute between the Complainant and local management. However, there was no change to the Complainant’s pay or hours of work at that point in time.
The Complainant went on leave from 17th to 30th May 2016. The Complainant states that on her return from leave her hours of work were dramatically reduced. The Complainant claims she was rostered to work approximately 8/12 hours per week for the month of June 2016. The Complainant stated that she was rostered to work between 20 and 25 hours per week, in the period between July and October 2016.
After October 2016, the Complainant was not provided with any hours of work and, as a result, forced to register with Social Welfare. The Complainant stated that she challenged this alteration to her conditions of employment but was unable to receive a satisfactory explanation from the Respondent. The Complainant then instructed her Trade Union to write to the company on her behalf. However, the Complainant states that no satisfactory response was received.
It was stated on behalf of the Respondent that the Complainants work came under new ownership and management on 1st March 2016. It was stated that prior to this the receivers had issued all Employees with forms to update Employee records before the takeover. It was stated that the Respondent understood that the Complainant was a part-time worker as she had filled out her Employee details, indicating that she was a part-time Employee.
It was stated on behalf of the respondent that, during the first few weeks under new management, they were changes made to the operation. The Respondent stated that, it was extremely important for the business that these changes were made.
It was stated on behalf of the Respondent that the Complainant continued to be offered part-time hours and worked to her schedule. However, the Respondent stated that from the beginning of August 2016, the Complainant started refusing to attend for rostered hours. It was further stated that on the week beginning 29th August 2016, the Complainant was rostered for three days. However, the Complainant refused to work that week and provided no reason for this other than that she was unavailable for work. It was stated on behalf of the Respondent that they were left very tight from a staffing perspective on those days, as they had completed the Rota based on the Complainant being available for three days that week.
The Respondent stated that, as a result of the restructuring that had taken place earlier that year, a number of staff, were placed on temporary layoff. The Respondent claims that the Complainant was informed of this at the time and they continued to sign her social welfare forms on a weekly basis.
In response to the specific complaints made by the Complainant, the Respondent stated the respondent stated that she had been paid all wages that were due and owing to her.
The Adjudication Officer found that the Complainant was paid in full for the hours she worked. However, notwithstanding this, the Adjudication Officer was satisfied that, in the period immediately following the Transfer of
Undertaking, the Complainant was provided with less hours than in the period up to June 2016.
Consequently, based on the calculations set out in the previous section, the Adjudication Officer found in the Complainant’s favour in the amount of €2,992.50, representing the shortfall in wages for the period June to October 2016. This amount is subjected to the normal statutory deductions that apply to wages.
Adjudication Reference: ADJ-00009709
The Complainant went on sick leave on the 16th of September 2016. During 2016 he was paid for eight weeks’ full pay and eight weeks’ half pay. His employment ended on the 2nd of September 2017 on his resignation. His complaint was that there was a sick policy with the Respondent, but he was not being paid in accordance with the sick pay policy. The policy had stated that there was a potential entitlement to discretionary company sick pay. This was to vary with the length of service at the time of the commencement of the period of sickness. It went on to state that no more than the total entitlement cited would be paid in any one service year. As the Complainant was deemed to have more than three years’ service, it stated that the entitlement was eight weeks at full pay and eight weeks at half pay. There was no definition of service year in the contract however the annual leave year was defined as “the company holiday year runs from the 1st of January to December 31st”. The Complainant’s case was that the discretion was not exercised by the company and the company did not pay the sick pay being eight weeks’ full pay and eight weeks’ half pay in 2017.
The Complainant’s further case was that he was entitled to his pension payment arising from his sick pay at 8% of his base salary.
The Respondent’s case is that the Complainant started working for a different company on the 27th of August 2012 but due to a transfer of undertaking he transferred to the Respondent on the 15th of February 2016 on his existing terms and conditions. He was provided with a new contract of employment by the Respondent and there was a number of amendments made to that contract arising from the obligations under the transfer of undertakings regulations. The Respondent relied on the definitions set out in the Payment of Wages Act. It submitted that pensions are not mentioned in the definition of wages but are mentioned in the exclusion clause. The Respondent’s submission was that clearly, they were separate items and there was no basis on which it could be read that pensions are included in the definition of wages.
The Respondent’s submission was that the entitlement to company sick pay was discretionary and that the vast majority of Employees would have no entitlement to sick pay in the company. Its submission was that the periods referable in the sick pay policy in the contract were referable to “years of service” and that the service year is different in language to the annual leave year.
The submission made was that the service year would vary from Employee to Employee. The use of the phrase “service year” was a deliberate use of language.
The Respondent set out that the different levels of sick pay specifically referred to the level of service that the Employee had with the Respondent. Employees could not pick and choose their level of service. The service year related to the anniversary of the start date of the Complainant in employment.
In addition, it also submitted that although the policy set out the maximum entitlement, it was still discretionary. The Respondent set out that it did exercise its discretion and it did award eight weeks’ full pay and eight weeks half pay to the Complainant. The Respondent’s position was that the Complainant had exhausted his entitlements for sick pay in these payments and he was not entitled to any further payment in the service year to the 26th of August 2017. The Respondent noted that the Complainant resigned on the 2nd of July 2017.
The Adjudication Officer stated that it is the Employer’s duty to pay wages or remuneration as agreed between Employer and Employee in the contract of employment. The obligation to pay is both a statutory and contractual duty.
The Adjudication Officer decided that a pension deduction is not a payment by way of a pension within the meaning of the Act and accordingly disagree with the Respondent’s submission that the matter is outside the scope of my jurisdiction. Clause 3 is a conditional clause. It is qualified and is conditional. Firstly, it sets out that the company sick pay is discretionary and it goes on to state that it varies with length of service at the time of the commencement of the period of sick leave. There is table of different service periods. The clause goes on to state that no more than the total entitlement cited below would be paid in any one service year.
The Adjudication Officer found that the potential entitlement is linked to the amount of years worked with the company. As there is no definition of service year in the contract, The Adjudication Officer gave it its ordinary understanding linked to the start date of the Complainant. The Adjudication Officer found that “service year” for the Complainant is between 27th of August of one year and the 26th of August the following year. As regards the Complainants pension entitlement, this as per his contract is linked to his base salary. The Adjudication Officer noted that the Complainant was paid his sick pay - eight weeks’ full pay and eight weeks’ half pay - from the period 16th of September 2016 to the first week in January 2017. He was also paid his pension contributions up to that date. The Adjudication Officers decision is that the requirement to pay sick pay was in the service year 27th of August 2016 to the 26th of August 2017.
The Adjudication Officer found that the Complainant was paid his full sick pay entitlement and pension contribution or premium for this period. As the payment of his pension is linked to his salary, The Adjudication Officer further found that while not being paid by the company his base salary or sick pay, there is no requirement to pay the pension contribution.
Complainant awarded €2992 for shortfall in wages
Adjudication Reference: ADJ-00009662
The Complainant had been employed by the Respondent since 1st March 2016, when they acquired the previous entity as a result of a Transfer of Undertaking on that date. The Complainant had been employed in the previous entity since December 2006.
The Complainant claims that while she had been in receipt of full-time hours prior to the Transfer of Undertaking, her hours of work have been progressively reduced since then. The Complainant claims that this is in breach of the terms and conditions of employment. The Complainant is claiming that this amounts to a breach of the Payment of Wages Act and seeks accommodation accordingly.
In 2008 the Complainant was paid €9.50, which represented an increase on her previous rate due to additional responsibilities. The Complainant claims that the rate of pay remained the same for the duration of her employment. The Complainant stated that she worked on average 40 hours per week but this sometimes increased during busy periods.
On 13th January 2016, the Complainant received a letter from a firm of accountants, regarding the fact that her then Employers were in receivership. The Complainant received a further letter on 29th February 2016 informing her that her employment would transfer to the Respondents. This letter also informed her that her existing terms and conditions with not be impacted. However, on 21st April 2016 the Complainant received a Contract of Employment which described her position. This letter also stated that her working hours were to be on a casual basis.
The Complainant refused to sign this contract and asserted her existing conditions of employment. This led to some dispute between the Complainant and local management. However, there was no change to the Complainant’s pay or hours of work at that point in time.
The Complainant went on leave from 17th to 30th May 2016. The Complainant states that on her return from leave her hours of work were dramatically reduced. The Complainant claims she was rostered to work approximately 8/12 hours per week for the month of June 2016. The Complainant stated that she was rostered to work between 20 and 25 hours per week, in the period between July and October 2016.
After October 2016, the Complainant was not provided with any hours of work and, as a result, forced to register with Social Welfare. The Complainant stated that she challenged this alteration to her conditions of employment but was unable to receive a satisfactory explanation from the Respondent. The Complainant then instructed her Trade Union to write to the company on her behalf. However, the Complainant states that no satisfactory response was received.
It was stated on behalf of the Respondent that the Complainants work came under new ownership and management on 1st March 2016. It was stated that prior to this the receivers had issued all Employees with forms to update Employee records before the takeover. It was stated that the Respondent understood that the Complainant was a part-time worker as she had filled out her Employee details, indicating that she was a part-time Employee.
It was stated on behalf of the respondent that, during the first few weeks under new management, they were changes made to the operation. The Respondent stated that, it was extremely important for the business that these changes were made.
It was stated on behalf of the Respondent that the Complainant continued to be offered part-time hours and worked to her schedule. However, the Respondent stated that from the beginning of August 2016, the Complainant started refusing to attend for rostered hours. It was further stated that on the week beginning 29th August 2016, the Complainant was rostered for three days. However, the Complainant refused to work that week and provided no reason for this other than that she was unavailable for work. It was stated on behalf of the Respondent that they were left very tight from a staffing perspective on those days, as they had completed the Rota based on the Complainant being available for three days that week.
The Respondent stated that, as a result of the restructuring that had taken place earlier that year, a number of staff, were placed on temporary layoff. The Respondent claims that the Complainant was informed of this at the time and they continued to sign her social welfare forms on a weekly basis.
In response to the specific complaints made by the Complainant, the Respondent stated the respondent stated that she had been paid all wages that were due and owing to her.
The Adjudication Officer found that the Complainant was paid in full for the hours she worked. However, notwithstanding this, the Adjudication Officer was satisfied that, in the period immediately following the Transfer of
Undertaking, the Complainant was provided with less hours than in the period up to June 2016.
Consequently, based on the calculations set out in the previous section, the Adjudication Officer found in the Complainant’s favour in the amount of €2,992.50, representing the shortfall in wages for the period June to October 2016. This amount is subjected to the normal statutory deductions that apply to wages.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
www.adarehrm.ie
- Advice on all Employment Law, Industrial Relations and HR queries or issues
- Review, Development and Implementation of Contracts of Employment and Employee Policies and Procedures
- Management and Employee Training - Dignity at Work, Anti-Harassment and Sexual Harassment, Conducting Disciplinary Meetings
- Investigations - independent investigations on behalf of Organisations in line with the relevant legislation and codes of practice
- Organisational Management or Change Management Initiatives – including review / development of Performance Appraisal / Management Systems and Organisational Development
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