ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00057303
Parties:
| Complainant | Respondent |
Parties | Osman Johar | Bidvest Noonan |
Representatives | Self-Represented | Ledwith Solicitors LLP |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997 | CA-00069742-001 | 04/03/2025 |
Date of Adjudication Hearing: 17/09/2025
Workplace Relations Commission Adjudication Officer: Donal Moore
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The parties were put under notice of the decision in the Zalewski case, that their evidence would be heard under oath or affirmation and of the penalty for perjury. Additionally, the parties were informed that they would be afforded an opportunity to cross examine witnesses and the hearing was to be held in public; the parties offered me neither objection nor reason to have the hearing held in private. Accordingly, witnesses made an affirmation to be truthful with the Commission.
In attendance were the Complainant, Mr Osman Johar who affirmed to be truthful with the Commission.
Solicitors for the Respondent, Ms Jacqueline Duginan and Ms Pippa Weld were in attendance. Ms Sharon Kane (OM)r, Ms Rebecca Kane (CAM), Linda Connolly (PCA) and Ms Pooja Sawant (ERA., Ms R Kane, Ms S Kane and Ms Connolly gave evidence under affirmation to be truthful with the Commission and cross examination was allowed.
No other witnesses were produced.
In coming to my decision, I have fully considered the oral and documentary evidence tendered by the parties, and the written and oral submissions on behalf of the parties.
During the hearing, it was further set out by the Respondent that they had documents to support their case although they gave no reason why this was not submitted before the hearing in the first instance. I allowed a further the Complainant until for the documents to be submitted and shared with the Complainant and a further 7 days for the Complainant to make their response.
This documentation was received on the 19th of September, as agreed, and was considered in my decision; documentation after that date was not included.
I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
I am required to set out ‘such evidential material which is fundamentally relevant to the decision’ per McMenamin J. in Nano Nagle School v Daly [2019] IESC 63
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.
Background:
The Complainant has worked for the Respondent since 01/05/2023, paid €522.00 per week gross. He has been employed during that time as a Security Officer. His complaint (CA-00069742) is that he had not received the hours of work verbally promised to him by the Respondent. His complaint was submitted on the 04/03/2025 and the date of the alleged contravention is the 01/05/2023 The Complaint is submitted under Section 18A of the Organisation of Working Time Act, 1997. The Complainant informed the hearing that he had legal training. The hearing began started late due to the late appearance of the Complainant |
Summary of Complainant’s Case:
It is the case of the Complainant they had worked for a company that was acquired by the Respondent and had been working with them for two years at the time of complaint. Verbal Promise of Additional Hours It is the Complainant case that at the time of acquisition he was informed verbally by the Respondent that he would have 48 hours per week, and he relied upon that assurance. However, he sets out that this was not honoured and he reached out to HR without resolution on the reduction of hours he was told these hours were not available. Hiring of Students on Visas and Other Staff At the same time, it came to his attention that the Respondent was hiring new staff in contradiction to A claim to the Complainant of having no additional hours. In addition, the Complainant wanted to raise the issue of the Respondent allegedly hiring students who were not allowed work more than 24 hours and are scheduled for 36 hours to the detriment of longer serving staff such as himself. Complaint of Conflict of Interest on Customer Service The Complainant further raises an issue with a conflict of interest on the part of staff relationships in terms of mother and daughter requesting the Commission investigate this matter. It is the Complainant case this relates to issues of favouritism and to a lack of customer service. Receipt of Documents on the 17th of September During the hearing, it was further set out by the Respondent that they had case law they wished to cite in support of their case, they were invited to submit this in writing to the Commission by Friday the 19th and were further invited to speak to it at the hearing for the benefit of the Chair and the Respondent. In the email of the 17th of September, the Complainant sets out a further demand that the hours he had worked more than 36 hours be paid as overtime hours, this was referred to in his summing up on the day of the hearing. Receipt of Documents on the 28th of September Documents were submitted on the 28th of September, and I refused to take these into account given their late submission. Cases Cited The Complainant also wished to cite Aer Lingus Ireland Limited v Cliona O'Leary (Labour Court Determination UDA/20/20, 2020): This was to support his case, excluding annual leave from the 52-week period results in an average exceeding 36 hours per week. Irish Life Assurance PLC v John Healy (Labour Court Determination EDA 1514, 2016): To support his claim of promissory estoppel, the Complainant cited this case where the Labour Court applied the doctrine of promissory estoppel, preventing an employer from resiling from a promise where the employee relied on it to their detriment. Similarly, he sets out that he relied on verbal assurances from the Respondent guaranteeing 48 hours per week. This induced him to remain with the Respondent and has caused him financial hardship. |
Summary of Respondent’s Case:
It is the Respondent case that the Complainant has worked for them since the 1st of April 2023 and sets out in written evidence that the hours of the written contract of employment are for 36 hours per week. Lack of Substantial Claim The Respondent makes a case that the Complainant has not substantiated his claim, and the outline complaint is denied in full. There was never a 48-hour contract with the Complainant and the claim is misguided and without foundation. No such agreement exists or existed between the parties for a 48-hour work week. There appears to be a confusion where the Respondent communicated, they would attempt to offer extra hours where this was feasible. This has been explained to the Complainant on making queries to HR. The Respondent provided evidence of a request from the Complainant asking that his hours not increase to not interfere with his benefits. Additionally, the Respondent offered a transfer to another site that would have offered more hours to the Complainant. Misguided and Misplaced Complaint The Respondent respectfully submits that the Complainant’s claim is misguided. Specifically, the Complainant’s reliance on the Organisation of Working Time Act 1997 is misplaced. The provision is intended to ensure that employees are placed on a band of hours that reflects the actual hours worked over a 12-month reference period, where those hours consistently exceed contractual entitlement. The Complainant is contracted for, and consistently receives, a minimum of 36 hours per week. This places him in Band H, the highest available band under the legislation. The Respondent submits Section 18A has no further application in this case. The Complainant requests to be placed in an appropriate band of hours. The Complainant is contracted for 36 hours per week, which already places him in Band H, the highest band outlined under the legislation, in particular Section 18A of the Organisation of Working Time Act, 1997. The Respondent accepts that the Complainant has worked additional hours where requested. However, there is no statutory entitlement to a higher band, as none exists beyond Band H. Restriction of the Adjudicator Powers The Respondent asserts that having met the 36 hours no further liability exists and further that the adjudicator is “confined to directing placement on the correct statutory band, not to create new bands or award additional guarantees” Cases Cited The Respondent cites Aer Lingus v O’Leary (Labour Court, DWT207, 2020) as an authority that the Adjudicator is confined under the act to directing only the placement of a Complainant on the correct band. |
Findings and Conclusions:
There are several issues in this case that should be called out. Hiring of Students on Visas and Other Staff The Complainant wished to raise in the written submissions that there may be a breach of visa regulation in the hiring of students on visa to work longer hours than their visa allows and what is described and what is described as favouritism relating to a lack of customer service. Whilst this has been reduced to writing in advance of the hearing and the Respondent is on notice of the allegation, neither of those issues are the subject of the Act under which the complaint is brought and are outside the powers of the Adjudicator under the complaint referred. Complaint of Conflict of Interest on Customer Service The Complaint further set out a demand that he paid at an overtime rate for the hours he did work more than his contracted 36 hours. This, like the issue of the hiring of students on visas for excessive hours and his complaint of the relationship between two of the respondent witnesses is outside the scope of the act under which he brings his complaint. Section 18A of the Organisation of Working Time Act, 1997 I can only look at the law referred to in the Complaint form and the operative law in this complaint is Section 18A of the Organisation of Working Time Act, 1997. The purpose of Section 18A is to ensure that the number of hours specified in the contract of employment reflects an employee’s actual working week over a reference period. The Bands are denoted as A to H, where H is 36 hours and over. So that in circumstances where an employee’s contract is set as G (31 hours) and they work 36 hours on average over 12 months, they can be redesignated as Band H (36 hours). The Complainant is already on the highest band (Band H, 36 hours) and there is none higher. The outcome of such a complaint under s18A is that I can find it well founded or not well founded and in the case of being well founded I can require the employer to comply and place the employee on the correct banded hours under s18A(9)(a) &(b). Bands The Complainant submitted some documentation in time (close of business on the 19th of September and cited two cases Aer Lingus Ireland Limited v Cliona O’Leary which was also cited by the Respondent. The Complainant argues that the annual leave should be taken into account in his application for the new banded hours at 48. As set out elsewhere there is no higher band than H of which he is the beneficiary, and it is not within the gift of the Adjudicator to create new bands. The creation of a new band would be a matter for the Oireachtas. Alleged Verbal Promise of Additional Hours The Complainant further cites Irish Life Assurance PLC v John Healy (Labour Court Determination EDA 1514, 2016): The Labour Court applied the doctrine of promissory estoppel, preventing an employer from resiling from a promise where the employee relied on it to their detriment. In this the Complainant sets out he relied on verbal assurances from Ms. Sharon Kane guaranteeing 48 hours per week during the 2023 transition, leading him to remain with the Respondent and suffer financial hardship. This Complaint is referred under s18A. S18A is in reference to banded hours where there is a list of bands from highest to low. The Complainant is contracted on the highest possible band and there is no other band higher than this. The matter of the promise alleged (and heavily disputed by the Respondent) has zero evidence and is outside the powers of the Adjudicator under s18A the Act upon which the Complainant relies in his complaint. Conclusion It is quite clear that the complaint under S18A is misconceived. Under the 1997 Act, by which it has been referred, I have limited options open to me. I can only find the complaint well-founded or not well-founded. I cannot direct the Respondent to address their student visa obligations, instruct them to pay additional monies or rewrite the current contract. The Complainant is on band H; he has confirmed this under cross examination; there is no higher band than 36 hours. The relief the Complainant seeks is not available to him under s18A; where the Complainant has already gotten the 36 hours there is nothing for me to direct. I can only find that the claim is misconceived not well- founded. |
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.
For the reasons set out above I find the complaint not well-founded. |
Dated: 30th October 2025
Workplace Relations Commission Adjudication Officer: Donal Moore
Key Words:
Misconceived, verbal assurances, s18A |