Primark Ltd t/a Penneys (Represented by Irish Business and Employers' Confederation) v Romana Vancekova
| Jurisdiction | Ireland |
| Judgment Date | 25 November 2022 |
| Judgment citation (vLex) | [2022] 11 JIEC 2502 |
| Docket Number | FULL RECOMMENDATION ADJ-00034972 CA-00046131-001 DETERMINATION NO. PWD2250 SECTION 7(1), PAYMENT OF WAGES ACT, 1991 |
| Court | Labour Court (Ireland) |
FULL RECOMMENDATION
PW/22/176
ADJ-00034972 CA-00046131-001
DETERMINATION NO. PWD2250
SECTION 7(1), PAYMENT OF WAGES ACT, 1991
Full Court
Chairman: Ms Connolly
Employer Member: Mr Marie
Worker Member: Mr Bell
1. Appeal of Adjudication Officer Decision No ADJ-00034972 CA-00046131-001.
2. The Respondent appealed the Adjudication Officer's Decision to the Labour Court in accordance with Section 7(1) of the Payment of Wages Act, 1991 on 24 May 2022. A Labour Court hearing in a virtual setting took place on 14 September 2022. The following is the Determination of the Court:
This is an appeal by Ms Romana Vanekova against a Decision of an Adjudication Officer (ADJ-00034972) dated 24 May 2022 made under the Payment of Wages Act 1991 (“the Act”). The Adjudication Officer found that the complaint made by Ms Vanekova that her employer, Primark Ltd trading as Penney's made an unlawful deduction from her wages was not well founded.
In this Determination the parties are referred to as they were at first instance. Hence, Ms Romana Vanekova is referred to as “ the Complainant” and Primark Ltd trading as Penney's as the “ the Respondent”.
The Complainant works as a Part Time Retail Assistant and submits that during the third national lockdown, in the period from 25 March 2021 to 13 May 2021, she was subject to a 40% pay cut in her pay without her consent. Shortly after the announcement of the third national lockdown she received an email from her employer stating that they were closing its doors and that she would be paid 80% of her contractual hours. All normal statutory deductions would apply (PAYE, PRSI, Pension).
Prior to the pandemic the Complainant earned an average weekly income of €244.55. She believes that this is the amount that was properly payable to her during the lockdown. This figure is based on the Complainant's contractual hours as a member of weekend staff, working 13 hours over Saturday and Sundays and receiving a double payment for Sunday working.
During the third lockdown she received a weekly payment of €172.43. Her payslips did not specify the amount of any deduction from her contractual entitlement and gave no details relating to a “support payment”. She submits that the unilateral decision of the employer to cut her contractual wages is a breach of the Payment of Wages Act.
The Complainant accepts that the COVID 19 pandemic was an extraordinary and challenging situation for everybody. The Respondent made a unilateral company decision to keep all staff in employment. The Complainant contends that there were other options available to employers during this period. An Employment Wage Subsidy Scheme was available to companies that met Revenue criteria. Companies that did not meet the eligibility criteria for the scheme had the option to temporarily lay off employees who could apply for the Pandemic Unemployment Payment.
The Complainant submits that during lockdown she was not absent from work on unpaid leave, sick leave, on strike, or laid off. She was at home on standby waiting and ready to come to work at any time her employer required. There was no other option available to her. The company decision to keep her in employment prevented her from accessing social protection payments. The monies that were properly payable to her during this period was her average weekly salary.
The Complainant further submits that the Respondent's decision to pay 80% of basic hours to all staff negatively impacted weekend staff, who received premium payments for working on a Sunday and on Public Holidays. Weekend staff suffered an approximate 40% reduction in pay, compared to other workers who received a 20% cut in pay.
This issue did not arise during the first national lockdown when Sunday public holiday payments were included in payments made to staff.
The Complainant does not accept, as asserted by the Respondent, that the Mandate trade union agreed on behalf of all retail staff a payment based on a formula of 80% of contractual hours during the store closures. There is no written collective agreement. The Complainant was not informed about a collective agreement by the union or by her employer. She was never informed that a decision was made in agreement with the union. There is no proof of a collective agreement.
The Complainant asserts that correspondence entered into between the Head of HR and the trade union in November 2020, which was opened to the Court, is proof that the pay reduction was a unilateral decision by the Respondent and not negotiated with the trade union in advance. During the third lockdown, which lasted nearly 5 months, there was no communication between Mandate and Penney's employees. The Complainant tried to contact the trade union office for an explanation. She was told she had been paid correctly and if she was not happy to lodge a grievance. When the Complainant raised a formal grievance in relation to the matter, she was advised that the payment made to her was “ a company decision” and there was no reference to trade union involvement in the making of that decision.
The Complainant submits that it was a company decision to keep her in employment even though there was no job available for her. The company made a unilateral decision to make unlawful deductions from her contractual wages. Correspondence between the Respondent and the trade union indicates that there was no collective agreement in place.
The company did not avail of the government funded Employment Wage Subsidy Scheme as it did not meet the criteria. During the pandemic the company announced multi-million investments. It did not need to make a pay cut to survive the consequences of the pandemic.
There is no exception under the payment of wages act for exceptional circumstances. It is clear from the Act that it is unlawful for an employer to implement a pay deduction in the absence of a statutory or contractual entitlement to do so, or without the employee's consent. In all communications to employees the Respondent emphasised their decision-making regarding pay. They failed to inform employees about the trade union's involvement regarding pay.
The Respondent rejects the claim that an unlawful deduction was made from the Complainant's wages. The Complainant was paid a support payment of 80% of her contracted hours during a period of state enforced store closures, in a manner agreed with the union. No wages were properly payable to her during this period, and as such no unlawful deduction was made.
As a result of the COVID 19 pandemic, the company was forced to close its retail stores on three separate occasions. On each occasion, the Respondent in agreement with the Mandate trade union, with whom they have a collective bargaining relationship, agreed to provide a support payment to all retail staff. The company recognises Mandate for the purposes of negotiating terms and conditions of employment. It is a term of the Complainant's contract that she is a member of Mandate.
The agreed formula for calculating the support payment during the third lockdown was that employees on banded hours contracts were paid 80% of the higher end of their band. All affected retail employees were paid 80% of their basic hours. The support payment did not include premium payments in addition to contractual hours, as premium payments are applied to hours physically worked.
In providing support payments the Respondent agreed to maintain the connection of employees to the employer during the closures, which otherwise would have resulted in a very significant social cost been carried by the State. Approximately 5000 retail staff received a payment based upon the agreed formula. No other employee submitted a complaint about incorrect wages.
The Respondent accepts that the collective agreement entered into with the trade union was not captured in a written document. It relies on the oral evidence of Ms Michelle Whelan, Head of People and Culture, to demonstrate the existence of a collective agreement in place at that time, which it submits was incorporated into the Complainant's contract of employment through custom and practice. There is a contractual requirement to join a trade union, which reflects the existence of collective bargaining, and terms and conditions of employment are negotiated on behalf of employees. This custom and practice is notorious and well established.
The Respondent understands that the Complainant, as evidenced in her claim form and submission, was informed by her Mandate representative that she had been provided with the correct level of support payment, in accordance with an agreement which was negotiated on her behalf with the company. The Respondent rejects the assertion that correspondence entered into between the Head of HR and the union is evidence of a unilateral decision by the Respondent. Furthermore, that correspondence related to the second national lockdown period and not the period encompassed by the within claim.
It is the Respondent's position that no wages were properly payable to the Complainant during the relevant period, therefore, no deduction under the Act was made.
Section 6 of the Act states:
(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)…
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...
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