ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008731

Parties:

	Complainant	Respondent
Anonymised Parties	An employee	A car preparation company

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011739-001	29/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011739-002	29/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011739-003	29/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011739-004	29/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011739-005	29/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011739-006	29/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011739-007	29/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00011739-008	29/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00011739-009	29/05/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00011739-010	29/05/2017

Date of Adjudication Hearing: 21/09/2017

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)to me by the Director General, I inquired into the complaint(s)and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

This complaint consists of eight alleged breaches of the Organisation of Working Time Act, 1997, one alleged breach of the Terms of Employment (Information) Act, 1994 and one alleged breach of the Payment of Wages Act, 1991:

Complaint CA – 00011629 – 001 – I am not given compensation for working on a Sunday. Complaint CA – 00011629 – 002 – Hours of Work – I do not get a daily rest period.

Complaint CA – 00011629 – 003 – Hours of Work – I do not get breaks.

Complaint CA – 00011629 – 004 – Hours of Work – I do not get weekly rest periods.

Complaint CA – 00011629 – 005 – Hours of Work – I am required to work more than the maximum permitted number of hours.

Complaint CA – 00011692 – 006 – Hours of Work – I did not receive my paid holiday/annual leave entitlement.

Complaint – CA 00011962 – 007 – Hours of Work – I did not receive my public holiday entitlement.

Complaint – CA00011962 – 008 – Hours of Work – I am not notified of my starting and finishing times in advance.

Complaint – CA – 00011962 – 009 – Terms and Conditions of Employment - I did not receive a statement in writing of my terms of employment.

Complaint - CA – 00011629 – 011 – Pay – My employer has made an unlawful deduction from my wages.

Summary of Complainant’s Case:

Representative for the Complainant supplied a written submission at the hearing outlining the ten complaint areas as follows:

Complaint area 1: I am not given compensation for working on a Sunday.

The Respondent failed to answer a Data Protection Act request for working time records, and the Complainant is at a disadvantage in terms of detailing his complaint which disadvantage is caused entirely by the Respondent’s failure to keep such records or their failure to furnish such records in breach of statute.

Complaint area 2: Hours of Work – I do not get a daily rest period.

The Respondent has on occasion breached section 11. The Complainant does not have the statutory records which the respondent is obliged to keep.

Complaint area 3: Hours of Work – I do not get breaks.

The Complainant is simply denied an opportunity to take rest breaks.

The Respondent’s statutory records have been sought in this regard but have not been furnished.

Complaint area 4: Hours of Work – I do not get weekly rest periods.

The Complainant routinely works more than seven consecutive days in a row resulting in a breach of Section 13. Examples supplied.

Complaint area 5: Hours of Work – I am required to work more than the maximum permitted number of hours.

Examples provided. If the Respondent is to furnish its statutory records which it is required to maintain, the Complainant is confident that these will substantiate that there has been a breach of the Act.

Complaint area 6: Hours of Work – I did not receive my paid holiday / annual leave entitlements.

The Respondent pays 7.5 hours for a day of annual leave rather than the annual leave accrued by the employee. Example provided.

Complaint area 7: I have not received my Public Holiday Entitlement.

The argument regarding Complaint area 6 is repeated.

Complaint area 8: Hours of Work – I am not notified of my starting and finishing times in advance.

The Complainant is routinely issued a roster at approximately 10.00pm on a Sunday in relation to the following week. This is not consistent with requirement outlined in legislation.

Complaint area 9: Terms and Conditions of Employment – I did not receive a statement in writing on my terms of employment.

There is a breach of section 3 in that the terms are silent in relation to the date of commencement, there is no reference to the Complainant’s remuneration or how it is calculated or any pay reference periods for the purpose of the National Minimum Wages Act. Nor do the terms specify the length of the intervals between the times at which the remuneration is paid.

Complaint area 11: Pay – My employer has made an unlawful deduction from my wages.

As set out on the complaint form, the Complainant is not permitted to take rest breaks, but when his hours are totted up for determining his remuneration, a deduction of 30 minutes per day is made by the Respondent to account for rest breaks which the Complainant has not taken.

This amounts to a deduction of between 2.5 and 3.5hours per week and the Complainant seeks to recover the average of 3 hours per week for 26 weeks or a total of 78 hours at €9.25 per hour or €721.50 gross.

Summary of Respondent’s Case:

Having come on record very late the representative for the Respondent made the following verbal submission:

Sunday working – it was claimed that the Complainant worked on three Sundays during the six-month period ending on 29/05/2017, the date the complaint was received by the Workplace Relations Commission.

With regard to a Sunday working premium the Respondent stated that they were about to increase the hourly rate of pay from €9.15 per hour to a composite rate of €9.25 per hour.

In relation to the working time records the Respondent does keep working time records but did not have them available at the hearing. The Respondent was not aware of a request for working time records under the Data Protection Act.

Daily Rest – the Respondent company admitted they do not have such records but are willing to clarify the situation by supplying working time records for the period in question.

Weekly rest – this will be addressed when the working time records are submitted to all parties.

Working hours – the Respondent representative explained that the system operated by the Respondent is very much based on offer and acceptance. The complainant has a casual contract and does not have to accept hours offered. The Respondent included that average weekly hours are measured in blocks of seventeen weeks under the Act.

Paid holidays – the Respondent stated that the Complainant has received annual leave entitlement.

Work rosters – in relation to the Respondent issuing work rosters to employees it was pointed out that the Respondent’s business activity can fluctuate in line with demand and it is not always possible to forecast this far in advance. A two-shift system is in operation and this very often has to be changed to meet peaks in customer demand and to cover for eventualities such as absenteeism etc.,

Terms of Employment – the complainant has been issued with two contracts of employment, version 1 and version 2, the most recent (version 2) was signed by the complainant on 8th August 2017. There is a technical error contained in this contract. The correct hourly rate of pay is €9.15 per hour.

Unlawful deductions from wages – no dates have been provided by the Complainant and it has never been raised as an issue by the Complainant.

The representative for the Respondent went onto say that efforts had been made to raise issues with the Complainant but this was not welcome by the Complainant. He went onto say that the Grievance procedure had not been utilised by the Complainant and efforts had been made to engage with him.

Findings and Conclusions:

Following the hearing of this complaint I requested that time sheets for the period in question be furnished and a made a second request for wage slips. All information requested was provided by the Respondent with copies also sent to the representative of the Complainant.

This complaint was received by the Workplace Relations Commission on 29th May 2017, the period in question therefore is the 26 weeks ending on this date. I appear to have time sheets for 25 of these weeks and therefore will work on the average of 25 weeks rather than 26 weeks. The time sheets received are as follows:

1. Week commencing – Monday 28/11/2016

2. Week commencing – Monday 05/12/2016

3. Week commencing – Monday 12/12/2016

4. Week commencing – Monday 19/12/2016

5. Week commencing – Monday 26/12/2016

6. Week commencing – Monday 02/01/2017

7. Week commencing – Monday 09/01/2016 – should be 2017 (clerical error?)

8. Week commencing – Monday 16/01/2017

9. Week commencing – Monday 23/01/2017

10. Week commencing – Monday 30/01/2017

11. Week commencing – Monday 06/02/2017

12. Week commencing – Monday 13/02/2017

13. Week commencing – Monday 27/02/2017 - week commencing 20/02/2017 is missing.

14. Week commencing – Monday 06/03/2017

15. Week commencing – Monday 13/03/2017

16. Week commencing – Monday 20/03/2017

17. Week commencing – Monday 20/03/2017 – 2 time sheets for same week?

18. Week commencing – Monday 27/03/2017

19. Week commencing – Monday 03/04/2017 – additional time sheet for 04/04/2017

20. Week commencing – Monday 10/04/2017

21. Week commencing – Monday 17/04/2017

22. Week commencing – Monday 24/04/2017 – different format

23. Week commencing – Monday 01/05/2017 – different format

24. Week commencing – Monday 08/05/2017 – different format

25. Week commencing – Monday 15/05/2017 – different format

26. Week commencing – Monday 22/05/2017 – missing

Complaint CA-00011629 – 001 – Sunday working.

Section 14 (1) of the Organisation of Working Time Act clearly states:

An employee who is required to work on a Sunday (and the fact of his/her having to work on that day has not otherwise been taken account of in the determination of his pay) shall be compensated by his employer for being required so to work by the following means, namely –

(a) By the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) By otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(d) By a combination of two or more of the means referred to in the preceding paragraphs.

The Respondent stated that the Complainant worked on 3 Sundays during this period – from the information contained within the timesheets I see that the Complainant worked on 16 Sundays during this period. Total number of hours worked on Sundays during the period in question is 126 hours.

In relation to a pay increase of 10 cents per hour for all hours worked I must consider if this increase meets the criteria outlined in point (b) i.e. by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances.

I believe a fair Sunday premium in this instance is 25% of basic pay i.e. if the normal hourly rate is €9.15 the Sunday rate of pay should be €11.44 per hour. In applying this premium I calculate an underpayment of €278.48 and this amount should be paid to the Complainant.

Complaint CA – 00011629 – 002 – Daily Rest Period.

Section 11 of the Organisation of Working Time Act:

An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

From studying the time sheets supplied by the Respondent after the hearing there is one occasion that the Complainant did not receive an adequate daily rest period. This was on the date referred to by the Respondent in his submission i.e. finished work on 9th April at 11.00pm and started work on 10th April at 10.00am, a break of 10 hours. The Complainant is at no financial loss and does not appear to have brought this to the Respondent’s attention. To compensate him for this breach I have decided that one hour off work with pay is appropriate.

Complaint CA – 00011629 – 003 – Breaks

Section 12 of the Organisation of Working Time Act lays down a requirement for rest periods, a 15-minute break after 4.5 hours and/or a 30-minute break after 6 hours.

No particulars of any breach were presented at the hearing and from information contained on the time sheets supplied post hearing there does not appear to be any infringements of this rule.

This part of the complaint fails.

Complaint CA – 00011629 – 004 – Weekly Rest Period.

Section 13 of the Organisation of Working Time Act grants a weekly rest period of 24 consecutive hours which must be preceded by a daily rest period of 11 consecutive hours.

From information contained on the time sheets provided by the Respondent there appears to one occasion when the Complainant had to work on seven consecutive days i.e. Week commencing 26th December 2016. On the following week (week commencing 02/01/2017) the Complainant worked on six days. I am satisfied that this is a breach of Section 13 of the Act and accordingly award the Complainant an amount equivalent to one day’s pay i.e. €9.15 x 8 = €73.20.

Complaint CA – 00011629 – 005 – Maximum Weekly Hours.

Section 15 of the Organisation of Working Time Act looks at weekly working hours.

From hours provided on time sheets I have calculated that the average week is 41.76 hours.

It should be noted that this average is based on 23 weeks (two weeks’ time sheets missing and one week on holidays).

There is no breach of Section 15 of the Organisation of Working Time Act.

This part of the complaint fails.

Complaint CA – 00011629 – 006 – Paid holiday / annual leave entitlements.

The representative of the Respondent stated that the Complainant did receive his annual leave entitlement. The leave entitlement is clearly stated in the contract of employment.

From information contained in time sheets provided by the Respondent it appears that the Complainant took 5 days of annual leave in the 24 weeks for which we have time sheets for. I have no way of telling how many days of annual leave he had in the entire leave year.

S.I. No 475/1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 states as follows:

(3) If the employee concerned pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purpose of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over –

(a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs, or

[…..]

I am unable to calculate annual leave and pay for such with the information provided.

The Respondent employer should meet with the Complainant and recalculate the leave entitlement and pay for same – this should be completed within six weeks from the date of this decision. Any underpayment should be paid to the Complainant as soon as this exercise has been completed.

Complaint CA – 00011629 – 007 – Public Holiday Entitlements.

The exercise outlined above in Complaint 5 should include entitlement to Public Holidays and the appropriate rate of pay for Public Holidays. Payment for a Public Holiday should be calculated in accordance with S.I. 475/1997. Any underpayment should be paid to the Complainant as soon as this exercise has been completed.

Complaint CA – 00011629 – 008. – Failure to notify of start and finish times in advance.

Section 17 of the Organisation of Working Time Act refers to the provision of information in relation to working time and states at Section 17 (1):

If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

I note the Complainant’s representative claims that the Complainant is routinely issued a roster at approximately 10.00pm on a Sunday in relation to the following week when he is requested to commence work at 8.00am and that this is not consistent with the requirement in the legislation for 24 hours’ notice of working time to be provided.

There is no indication that the Complainant has brought this matter to the attention of the Respondent but at this point I would request that the Respondent makes every effort in future to ensure that work rosters are issued on a timelier basis.

Complaint CA – 00011629 – 009 – Terms and Conditions of Employment.

The Complainant was issued with a casual hours contract of employment dated 08/08/2017 (this was the second contract issued). The Terms of Employment (Information) Act, 1994 clearly obliges all employers to issue to each employee a statement of the particulars of employment missing from the contract issued to the Complainant are the following:

· The address of the employer in the state.

· The rate of pay is not correct.

These points should be addressed by the Respondent as soon as possible. The Complainant was at no financial loss due to this and therefore I feel that compensation is not necessary.

Complaint CA – 00011629 – 011. Pay.

This complaint was withdrawn at the hearing.

Finally;

It is a matter of some concern that the Respondent has erred in applying what I believe to be basic employment rights. The fact that the Complainant has been placed in a position whereby he must make a complaint to the Workplace Relations Commission to obtain these rights is disappointing. In addition to the small payments outlined above I have decided that an additional compensation award of €1,000 should be made to the Complainant.

I would also say that the exercise of recalculating holiday pay and payment for Public Holidays be treated as a matter of urgency and that there should be no delay in addressing the subject of underpayments should this be the result of the exercise.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Decision as outlined above.

Dated: 18.12.2017

Workplace Relations Commission Adjudication Officer: Jim Dolan