Complainant

Respondent

Anonymised Parties

A Security Guard

A Security Firm

Act

Complaint 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-00015414-001

27/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015414-002

27/10/2017

The complainant referred his complaint on 27 October 2017. On 19 April 2018, the Director General delegated it to me for hearing and decision. I heard the matter over two days, on 5 and 22 May 2018.

CA-00015414-001: The complainant complains that he did not receive his annual leave entitlement for 2015, despite engaging on this matter with his manager for close to 18 months. He submitted various email exchanges in evidence to prove this continuing engagement.

CA-00015414-002: The complainant further submits that he did not receive his pay entitlements in respect of contracted hours which he did not work. In particular, he stated in oral evidence that he refused to work on particular sites because of their lack of facilities, such as toilet facilities, or because they could not be reached by public transport.

In respect of the respondent argument that the complainant would have been entitled to Make-Up Time (MUT) and knew how to apply for it, having availed of it before, the complainant insisted that it would have been for management to remind him of this.

CA-00015414-001: The respondent stated that the company operates a policy whereby annual leave cannot be carried over into the next leave year. It submitted a letter in evidence, written to the complainant on 27 May 2015, in which the respondent’s HR manager alerted him that he had 34 days annual leave left to take, and reminded him of the policy.   Further in respect of this complaint, the respondent argues that it is out of time and therefore statute-barred.

CA-00015414-002: The respondent states that the complainant worked six shifts in total on the site which he considered unsuitable due to lack of toilet facilities, and submitted documentary evidence in support of this, between 9 September and 14 October 2017.   Its records show that from 25 August 2017 to 3 November 2017, the complainant worked ten shifts, refused to work seven shifts, was unavailable for work for three shifts and uncontactable for work for 14 shifts.

The respondent therefore disputes that the complainant lost pay as a result of the respondent refusing him shifts. Further on this point, the respondent stated in evidence that when an employee refuses a shift, no payment is made. When it is the case that the company cannot provide sufficient shifts for an employee’s contractual entitlement – in the case of the complainant, 20 hours per week – the employee becomes entitled to Make-Up Time (MUT), which brings their pay up their contracted hours. The respondent stated that it is one of the few security companies in Ireland to give their staff this contractual entitlement. It further stated that the complainant had availed himself of MUT before and knew how to apply for it.

CA-00015414-001: I concur with the respondent’s submission that this complaint is statute-barred. Neither the complainant nor the respondent put in evidence as to whether the respondent’s leave year coincided with the calendar year or ran from 1 April to 31 March, but either way, the within complaint was filed some 18 months after 31 March 2016, which would have been the last possible day of the 2015 leave year.

Section 41(8) of the Workplace Relations Act states that

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

I would be prepared to accept the complainant’s engagement with his manager on this matter as reasonable cause, but given that the filing of the complaint exceeds the 12-month time limit set down in the Act, I find I have no jurisdiction to investigate this matter.

CA-00015414-002: The parties settled payment for 84 hours to the complainant between themselves.   In terms of the new work hours which are comprehended in this complaint, I am satisfied from the respondent’s evidence that the complainant, who had worked for the respondent since 2007, knew how to avail himself of Make-Up Time (MUT) and had done so before. I further accept the respondent’s evidence that the complainant did not apply for MUT for the hours in question. I cannot accept the complainant’s contention that it would have been for management to remind him of this entitlement.   Given that MUT brings the respondent’s employees up to their full contractual entitlement rather than just 25% of it as specified in Section 18 of the Organisation of Working Time Act and is thus more generous than the statute, I find that the within complaint is not well founded and must therefore fail.

For the reasons set out in detail in the preceding section, I lack jurisdiction to investigate CA-00015414-001 and I find that CA-00015414-002 is not well founded. I therefore find in favour of the respondent on this complaint.

Organisation of Working Time Act, 1997 – Section 18 – Section 19 – Workplace Relations Act, 2015 – Section 41(8) – time limits – no jurisdiction – contractual arrangements more generous than statutory entitlements.