ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012878
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-00016961-001 | 21/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00016961-002 | 21/01/2018 |
Date of Adjudication Hearing: 16/05/2018 and 02/07/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered.
In particular, the Complainant herein has referred two complaints:
The Complaints herein relate to purported contraventions of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements and a contravention of Section 21 which set out the entitlements in respect of Publiic Holidays.
It is noted per Section 19 that an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks.
It is noted per Section 21 that an Employee has entitlements in respect of a public holiday: becomes entitled to Annual leave equal to:
A paid day off on the day;
A paid day off within a month of the day;
An additional day of pay.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- Declare the complaint was or was not well founded;
- Require the Employer to comply with the relevant provision;
- Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
Background:
The Complainant worked as an experienced swimming instructor with the Respondent’s busy Swimming Pool. The Complainant worked many hours and in different capacities which attracted different rates of pay. The Complainant therefore worked as a swimming instructor at a rate of €20.00 per hour and she worked as a Lifeguard and in the Administrative Offices at a lesser rate of €9.45 per hour. There were also in house training days for which the Complainant was paid The Complainant also worked private lessons throughout the week.
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Summary of Complainant’s Case:
It came to the Complainant’s attention that the hours that she worked for the Private Lessons were not being counted for the purpose of assessing the hours being built up for annual leave. The Complainant was therefore not happy that she had been adequately paid in respect of her Annual leave entitlements and had in fact been underpaid. The Complainant was also unhappy with the manner in which the payment she was to receive in respect of Public Holiday entitlements was being calculated. |
Summary of Respondent’s Case:
The Respondent’s case was that the Complainant knew or ought to have known how the payments were being calculated. |
Findings and Conclusions:
I have carefully considered the evidence adduced. I cannot accept that the Respondent made every effort to ensure that this employee understood the methodology that they were using to calculate hours and earnings in this workplace. I do not have any inclination of mala fides on the part of the Employer, I do accept that their system was unclear and although the reasoning as given to me in evidence might make sense I do not believe the Complainant was ever made aware of the way things operated. In her explanation the CEO of the Respondent asserted that it made sense to allow all the trainers and instructors who worked for the Respondent (generally on a part time basis) to generate extra income where the opportunity arose. The Complainant along with her colleagues was allowed therefore, to approach facility users to offer lessons or was herself asked by the Respondent if she was interested in doing private swim lessons when the Respondent was approached directly. There was no obligation to do lessons and the Respondent saw it as a means for its staff to generate “private” income. It was intended to be seen as a permanent source of income and always something staff generated at their own initiative. This made sense in this not for profit public amenity where funds were always tight. The hours spent conducting private lessons was therefore excluded from the calculations for Annual Leave entitlements. I note that whilst the Employer asserted everyone in the workplace was happy with the way annual leave was assessed the Employee said that no one was happy. There was no particular evidence given by any one of a number of third party swimming instructors presumably available. On balance, I have to accept that the earnings received from the private swimming lessons did not form a part of the salaried employment. The Swimming Pool saw this work as sporadic and seasonal and whilst it happily distributed the work, it was never able to Guarantee the work and operated on the premise that Employees should see this work as over and above their salaried employment and this work was taken up on a Contract basis. In the circumstances I accept that the hours worked in the swimming pool and taking private lessons were never hours capable of being included in any calculations being made in respect of Annual Leave etc. Both parties addressed me on the issue of an underpayment in respect of Annual leave and I accept that the Complainant (who provided me with comprehensive further submissions) was entitled to have the following figures taken into account to assess Annual leave: 804 hours at a rate of €20.00 72 hours at a rate of €9.45 43.25 at a rate of €9.45 12.5 at a rate of €9.45 Taking 8% of each of these sets of figures this should have meant that the Complainant would be entitled €1,382.57 annual payment for leave. The Complainant only got €962.00 leaving her with a loss of €420.57. The Workplace Relations Complaint Form is dated the 21st of January and I can only look back for a six month period from that date in respect of any Public Holidays which may have fallen due to the Complainant. The Respondent made the case (without conceding that there were any earlier errors) that the Public Holidays which fell in the relevant period in 2017 – August and October Bank Holidays as well as Christmas and New Year Holidays – were all observed in accordance with the obligations set out in the Act. |
Decision:
Section 41 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.
I find that that that Complainant has made her case with respect to the issue of Annual Leave entitlements which were due to her at the end of 2017 and which were paid based on a miscalculation of the correct facts.
The claim is therefore well founded and in complying with the relevant provision the Respondent is required to pay €421.00 compensation as is just and equitable having regard to all the circumstances.
The Complaint relating to Public Holidays is not well founded.
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Dated: 14/09/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath