ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003151
Complaint for Resolution:
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
Venue: WRC; Tom Johnson House, Haddington Rd, Dublin 4.
Date of Adjudication Hearing: 12/09/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under section 6 of the Payment of Wages Act, 1991 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant is employed since 1985. He has claimed that his employer has not paid him for additional hours worked.
Complainant’s Submission and Presentation:
I was required to take part in a six week training course starting on the 02/11/15 the course would generate 165 hours in overtime for the six week period. The overtime hours allocated to me for this period was 65 hours; these hours were used up in the first two weeks so from apporox 16/11/15 I was not paid for the remaining hours which amounted to 112 hours I am being told I have to take these hours as time in lieu. Time in lieu forms no part of any agreement with the Respondent as stated in the Proposal For Organisational Change (PFOC). Despite correspondence requesting payment for these outstanding hours I have been ignored by local management and the Respondent. I am seeking payment for 112 hours valued at €3,800.
Respondent’s Submission and Presentation
In August 2005 agreement was reached between the Respondent and its employees on the Proposal For Organisational Change (PFOC) in the service. The central element involved the elimination of overtime working and its replacement system.
Sec 12.3 of the PFOC provides for specific arrangements for monitoring and review of the operation of the agreement and to address problems arising in relation the implementation or operation of the agreement. Sec 12.4 refers to a local monitoring and review arrangements being put in place to address difficulties of a local nature. The Complainant did not invoke section 12 in that he has not referred this matter for review under the provisions of Sec 12.4. Therefore the WRC is not the correct forum to adjudicate this complaint unless and until all internal mechanisms have been exhausted. Therefore this complaint is misconceived.
Notwithstanding the above preliminary point the Complainant undertook a training programme. He advised management that as he had entered into the third week of the course his annualised hours were exhausted. He did not wish to partake in time off in lieu as he believed that it did not apply to him. The Respondent wrote to him and gave him the following options;
Opt to train on a Monday to Friday basis and consider adjusting his rostered attendance for the remaining period to a Monday to Friday basis thus avoiding a voluntary overtime balance being accrued.
Remove himself from the present course to prevent the build-up of hours
Continue under the present arrangement and avail of time off in lieu at his own preferred dates.
He opted to continue on the course but stated that he was not willing to take part in any arrangement involving time off in lieu. He sought payment for the excess hours worked.
This is rejected as that facility does not exist.
I note that this complaint was taken under the Payment of Wages Act not the Industrial Relations Acts. Therefore I find that this complaint is not misconceived under the Payment of Wages Act whereas it would be under the Industrial Relations Acts as all mechanisms were not exhausted at local level prior to the referral of the complaint to the WRC.
I find that in order to succeed in a complaint under the Payment of Wages Act it is necessary to establish a contractual entitlement to the monies claimed.
In this case I find that the Complainant has not established a contractual arrangement to the monies claimed.
I find that the Respondent has applied the terms of the PFOC.
I note that they gave the Complainant three options so as to be in compliance with this agreement but that he decided not to accept any of them and sought a payment for the additional 112 hours worked.
I find that this facility is not available to him.
I find that he has not established a contractual entitlement to be paid for these additional hours.
Section 41(4) 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 and under section 6 of the Payment of Wages Act, 1991
I have decided that the Respondent has not contravened Sec 5 of the Payment of Wages Act.
As per Sec 6 (2) of the Payment of Wages Act I have decided that the claim is not well founded and that it fails for the above stated reasons.
Dated: 6th December 2016