FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NOONAN SERVICES GROUP (REPRESENTED BY MANAGEMENT SUPPORT SERVICES) - AND - A WORKER (REPRESENTED BY MS BEATA ANNA KOWALCZYK) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation R-111585-IR-11/JC.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of RightsCommissioner's Recommendation R-111585-IR-11/JC.The dispute relates specifically to the Worker's claim that during the course of his current employment with the Company he has not received his full entitlements in respect of his terms and conditions of employment. The Worker is employed by the Company as a Cleaning Operative and is currently contracted to work a minimum of twenty two hours per week. In line with business needs, the Worker is often required to work additional hours, not exceeding a maximum of thirty nine hours before overtime rates of pay apply. The Worker contends that he regularly receives the incorrect amount of wages and that he has not received his full entitlements in terms of public holidays and annual leave. The Worker further contends that he is often required to perform tasks that are outside of the terms of his contract of employment. Lengthy discussions were held between the Worker and his Employer in an attempt to identify discrepancies between the actual hours worked and the actual remuneration received as well as any outstanding leave owing to the Worker. However, the dispute remained unresolved and the matter was referred to a Rights Commissioner for investigation and recommendation. On the 10th May 2012, the Rights Commissioner issued her Recommendation as follows:
"I recommend that the Respondent pay the Claimant compensation in the amount of €800 in respect of the Claimant's untaken accrued annual leave entitlements in the leave years 2010 and 2011.
I also recommend that in 2012 and thereafter the Employer ensure that the Claimant is paid in accordance with the provisions of the terms of his contract of employment, the Registered Employment for the Contract Cleaning Industry; the Organisation of Working Time Act 1997 and S.I. No. 475/1997. Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997.
For the purpose of clarity I find that the Claimant signed the written statement of his Terms of Employment in September 2010 and that the Claimant has a copy of that document".
On the 20th June, 2012, the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 22nd August, 2012.
WORKER'S ARGUMENTS:
3. 1. The Worker asserts that he has not received the correct amount of pay in accordance with the number of hours worked.
2. The Worker is seeking any outstanding monies owing to him in respect of unpaid hours and leave entitlements.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker in line with business needs is required to work additional hours and to perform tasks in various aspects of the employment. This is clearly outlined in his contract of employment.
2. The Employer recognises that there are discrepancies between the hours worked and salary received and in the leave entitlements owing to the Worker.
3. The Employer has indicated a willingness to resolve all outstanding issues with the Worker.
DECISION:
The appeal of the Rights Commissioner’s Recommendation is made on behalf of the worker and relates to a number of issues including his entitlement to annual leave and public holidays, payment for hours worked in excess of 39 hours per week, missing hours and the duties he is required to perform. The appeal was brought before the Court under Section 13(9) of the Industrial Relations Act 1969.
The Rights Commissioner recommended,inter alia,that the Claimant and the employer should review his working hours and his pay to ascertain the hours he worked and calculate any hours for which he was not paid. The Rights Commissioner also recommended that the parties should identify the basis on which the Claimant was paid for public holidays and he should be paid any outstanding monies due. Furthermore, she recommended that the Claimant should be paid €800 in respect of outstanding annual leave for the leave years 2010 and 2011. Finally, the Rights Commissioner recommended that in respect of 2012 and thereafter the employer should ensure that the Claimant is paid in accordance with the provisions of the terms of his contract of employment, the Registered Employment Agreement for the Contract Cleaning Industry (the Registered Agreement), the Organisation of Working Time Act, 1997, and S.I.No. 475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997.
The Rights Commissioner also found that the Claimant had signed a written statement of his terms of employment in September 2010 and had received a copy of the document.
The Company stated to the Court that the Claimant’s conditions of employment complied with the provisions of the Registered Agreement and the Organisation of Working Time Act, 1997.
The Court notes that the Claimant’s hours of work range from 22 to 39 hours per week, he is contracted to work any days from Monday to Sunday and when required to work on Sundays he is paid a Sunday Premium of double time in line with the Registered Agreement. When he works in excess of 39 hours per week he is paid time plus one half for the first four hours and double time thereafter.
His duties may vary from time to time as assigned by the Company and, due to the nature of the Company's business the location of his work may vary from time to time also.
In respect of public holidays the Claimant is entitled to one of the four options as provided for under Section 21 of the Organisation of Working Time Act, 1997.
Section 21 of the Act states: -
- (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
- (a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day's pay;
- (a) a paid day off on that day,
The Claimant is entitled to a day’s holiday or double time or a day off in lieu in respect of Good Friday.
Having considered the submissions of both parties the Court concurs with the Recommendation of the Rights Commissioner that the Company should with immediate effect set up a meeting with the Claimant to provide him with details of hours worked and payments made for the period covered by the claim and it should examine its records to ensure that the Claimant:-
- (i)has been paid for all hours worked in the period covered by the claim;
(ii)has received his appropriate public holiday entitlements in accordance with the Organisation of Working Time Act, 1997, and the Registered Agreement; and
(iii)has received his entitlement to Good Friday in accordance with his contract of employment and the Registered Agreement.
The Court upholds the Rights Commissioner’s Recommendation to pay the Claimant the sum of €800 in respect of outstanding annual leave for the period covered by the claim (the Court notes that the Company has already furnished the Claimant with a cheque for this amount). The Court upholds the Rights Commissioner’s Recommendation that the Employer should in respect of 2012 and thereafter ensure compliance with the provisions of the terms of his contract of employment, the Registered Agreement, the Organisation of Working Time Act, 1997, and S.I.No. 475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulation, 1997.
Accordingly, with slight variation, the Court concurs with and upholds the Rights Commissioner’s Recommendation. The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th August 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.