Complainant

Respondent

Parties

Daniel  Byrne

Devines Chauffeur Services

Michael Devines Chauffeur Services

Representatives

Patricia Mulligan

Shane Devine, MD – Michael Devine Chauffeur Services Ltd

Brid O’Brien – Employee of Michael Devine Chauffeur Services Ltd

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-00065022-001

27/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994.

CA-00066520-001

07/10/2024

The Complainant was employed as a Client Services Executive from 7 February 2024 to 26 July 2024.

CA-00065022-001 – Section 27 of the Organisation of Working Time Act 1997

The Complainant stated he was scheduled to work 37.5 hours as per contracted work in the calendar week plus 24 hours ie. two 12 hour shifts on weekend, and was not paid or compensated for extra hours. He stated the Respondent gave 8 hours in lieu for 24 additional hours worked in the calendar week breaching the 48 hour rule.  He stated when he discussed this with payroll they advised the 48 hour rule does not apply at the pay cycle determines his week and not as per contracted hours.

The Complainant stated he was also not given the opportunity to take breaks.

The Complainant stated he was only offered 1 day in lieu to cover the 24 hours extra so 16 hours were unpaid.

CA-00066520-001 – Section 7 of the Terms of Employment (Information) Act 1994.

The Complainant stated he started employment on 7 February 2024 but did not receive his contract to sign until 4 April 2024.

CA-00065022-001 – Section 27 of the Organisation of Working Time Act 1997

Mr Shane Devine, Respondent stated his business is seasonal and there are 2 seasonal weekends. He stated there are only 3/4 employees in the team.

Mr Devine stated the working week is Saturday to Friday and if someone worked they received 3 days in lieu back if they worked 3 days.  He stated their business is 24 hour business and that Mr Daniel Byrne, the Complainant was happy to work weekends.

Mr Devine stated they always worked 5/7 days and that was how the roster was done.  They worked a 40 hour week. Mr Devine stated they did receive breaks.

It was stated this was being contested by the parties i.e. that the Complainant did not get 3 days in lieu.

CA-00066520-001 – Section 7 of the Terms of Employment (Information) Act 1994.

The Respondent stated they were happy to proceed to hear this claim today and confirmed the Complainant started employment on 7 February 2024 and the contract was signed on 4 April 2024 by Mr Byrne.

Mr Devine stated he accepts the Complainant did not receive his contract for 3 months until when it was issued and signed on 4 April 2024 and that there was no handbook with it, it was just available on request if the employees requested same.

In considering my findings and conclusions I have considered the definition of the Organisation of Working Time Act, 1997

Based on the evidence presented I find that the employee, Mr Daniel Byrne did work beyond his contracted working hours and over 61 hours and received only 1 day in lieu.

The legislation states;

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5 , it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

(2) Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

(3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.

(4) A reference period shall not include—

(a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

(b) any absences from work by the employee concerned authorised under the Maternity Protection Act, 1994 , or the Adoptive Leave Act, 1995 , or

(c) any sick leave taken by the employee concerned.

(5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))—

(a) the weekly working hours of which vary on a seasonal basis, or

(b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature, then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).

CA-00066520-001

In considering my findings and conclusions I have considered the definition of the Terms of Employment (Information) Act, 1994.

The Respondent accepted Mr Byrne received his contract on 4 April 2024 and signed it on that day.

The Legislation states;

3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

CA-00065022-001

I find the employee, Mr Daniel Byrne worked in excess of contract and legal obligation even when hours are averaged and didn’t get sufficient time in lieu.  I therefore compensate the employee €2,500 for this claim.

CA-00066520-001

The parties confirmed the employee received his contract after the legislative timeline and it is particularly relevant as the Complainant did not fully understand the probation process etc therefore,  I award the Complainant €1,000 compensation.