ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003540
Complaint(s)/Dispute(s) 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
Date of Adjudication Hearing: 01/09/2016
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
I was put on Standby / on-call by client company and was at their disposal 24/7 as the first point of contact for Security related issues, employee concerns and for the general public (signage erected at entrance) when facility was unmanned. There was no provision in my employment contract for this. When subject was broached in December, I was informed there was no remuneration for this and my personal details would be removed by the 1st Jan. The information remained in situ until informed my contract was terminated on the 5th Jan with one months notice paid in lieu. I am of the opinion that it is my statutory right to be reimbursed for the 16 hours per day at 25% (nett 4 hours -excluding premium for public holidays) for been at their disposal - Total 1126 hours, when employed.
The complainant submits that he was required by the client company to be on-call as first point of contact for security and other service in the course of his employment. There was signage erected to that effect. He brought the matter to the respondent’s attention in December 2015. He was informed that his personal details would be removed from January 1st 2016 but the same remained in place and was still in place on the last day of his employment on January 5th. He submits that he is statutorily entitled to a payment for the on-call hours worked at an equivalent rate of 25%.
Respondent’s Submission and Presentation:
The respondent submits that no breach of the Act occurred and that no issue or question was notified to it in respect of any alleged breach until the 19th of January 2016 which was two weeks after the claimant was notified of the termination of his contract and after his last day worked (8th of January 2016). The employment period was from the 11th of May 2015 to 2nd of February 2016. He alleged at that point that he was on-call for the majority of the period of employment. There was no on-call requirement nor was it stipulated in his contract. The contract provides “Your hours of work will vary based on the Client business need and will be in accordance statutory requirements. For your initial assignment, your normal hours of work shall be 38 per week. You will be required to be flexible in order to work the hours set out by the Client. You may be required to work overtime or Sundays. This has been accounted for in your remuneration.” The claimant was well aware that his hours of work were from 9am to 5.30pm and that no arrangement for on-call was stipulated.
I have noted the additional submissions received from the parties post hearing. The complaint received was made under the referenced Act. There is no provision for me to consider these matters under any other Act.
The cognisable period of complaint is from the11th of December 2015 until the 10th of June 2016. I am satisfied that there was no contractual provision for standby or on-call. There is no statutory provision concerning entitlement to payment for hours spent on standby or on-call equivalent to 25% of the wages value of those hours. The contract is instructive as it relates to the hours of work and the nature of the flexibility required.
I find that the herein complaint is not well founded.
Dated: 26th January 2017