FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : TWENTY FOUR SEVEN RECRUITMENT SERVICES LIMITED (REPRESENTED BY ARTHUR COX, SOLICITORS) - AND - MR PRZEMYSLAW KOZAK (REPRESENTED BY MR BLAZEJ NOWAK) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decisions r-118488-wt-11/GC & r-115679-wt-11/GC.
BACKGROUND:
2. The Worker was employed as an 'order picker' since 9th September, 2008, with Twenty Four Seven Recruitment Services Limited a UK-based Recruitment Agency that has a contract with a large supermarket chain in Ireland. As a result of the Worker's under-performance he was removed from the roster during February 2011 and subsequently a claim alleging a breach under Section 18 of the Organisation of Working Time Act 1997 was lodged with the Rights Commissioner. The Rights Commissioner found in the Company's favour.
The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 2nd April, 2012. The Court heard the appeal on the 14th June, 2012, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The Worker did not receive his entitlements for the leave year April 2011 to 14th November 2011 and is entitled to 8% of the hours as annual leave.
2. The Directive 2003/88 must be interpreted as precluding national provisions or practices which make entitlement to paid annual leave conditional on a minimum period of ten days or one month's actual work during the reference period.
COMPANY'S ARGUMENTS:
4. 1. The Worker was dismissed duringMarch 2011 and accordingly the complaint is statute barred unless an extension of time is applied for and allowed by the Labour Court. The Company is not aware that such an application has been made.
2. The Social Welfare form showing '0 hours' as the answer to a question does not automatically mean that the Worker was 'a zero hour employee'. It simply means that the Company was trying to facilitate the Worker in applying for Social Welfare entitlements/ benefits.
3. Workers only accrue entitlement to annual leave based on hours actually worked. The Claimant did not work after February 2011 and accordingly did not accrue public or annual holiday entitlements.
DETERMINATION:
This dispute concerns a claim by Mr Przemyslaw Kozak (hereinafter "the Complainant"), that he was employed on a zero hours contract and was entitled to benefit from the provisions of Section 18 of the Organisation of Working Time Act 1997. He further contends that the additional hours to which he was entitled under Section 18 of the Act give rise to a further entitlement to holiday pay in respect of those hours. The Rights Commissioner considered this matter and found against the Complainant. The Complainant appealed this Decision to the Labour Court.
The Labour Court investigated the complaint by way of an oral hearing that took place on 14 June 2012. Both parties were in attendance and were represented. In addition the parties made written submissions to the Court prior to the hearing. These submissions were taken into account as part of the Court’s investigation into the complaints.
Background
Twenty Four Seven Recruitment Services Limited (the Respondent) employed the Complainant as an order picker from 9 September 2008 until the termination of his employment. The precise date of his termination is a matter of dispute. The Complainant was paid in or around €500 per week. He was assigned to work on the Tesco site in Donabate, County Dublin.
Before the Rights Commissioner, the Respondent argued that the Complainant was employed on a contract for services and did not come within the scope of the Act. However, at the hearing before the Court, Mr Kevin Langford, Solicitor for the Respondent, conceded that he was in fact employed on a contract of service and was treated accordingly.
The Respondent submits that following an increase in the productivity levels demanded by Tesco, the Complainant was unable to meet the required targets and was withdrawn from the assignment at it's behest. On March 3rd2011 the Respondent completed a social welfare form to enable the Complainant obtain social welfare assistance/benefit. The Complainant subsequently requested a meeting with the Respondent that took place on 10thMarch 2011. At that meeting the Complainant requested a further opportunity to prove his capacity to meet the required targets. The Respondent agreed to approach Tesco to determine its attitude to his return to work at its warehouse. Tesco did not agree. The Respondent so advised the Complainant by telephone the following day.
There was no further contact between the Complainant and the Respondent until October 2011. At that time the Complainant sent a letter to the Respondent. The letter asserted that the Complainant had been on lay-off for over four weeks and purported to give five weeks notice of termination of his employment.
On 7 October 2011 he lodged a complaint with the Rights Commissioner's Service. This was followed up with a further complaint on 15th November 2011. Both of these complaints arose under the Organisation of Working Time Act.
Preliminary Issue
The Respondent maintains that the Complainant was dismissed on 11thMarch2011 and accordingly the complaint is statute-barred unless an extension of time is applied for and allowed by the Court. No such application has been made and no reason to grant an extension exists.
The Complainant submits that the Respondent did not dismiss him on that day. The Respondent retained his P45 and continued to pay him for public holidays until August 2011. Furthermore the Social Welfare form completed by the Respondent confirmed that he continued to be employed full time by the Respondent.
Findings of the Court
The Court has examined the documents and considered the submissions of both parties in this case. The Respondent had effectively removed the Complainant from the assignment in Tesco before 11thMarch. Indeed this had occurred earlier that month after which the Respondent described the Complainant, in official correspondence with the Department of Social Welfare, as an employee on a full-time contract of employment.
What happened on 11thMarchwas no more than a confirmation that the proposition that had emerged at the meeting on the 10thMarch could not be proceeded with as Tesco had refused to agree to it. Accordingly the Court takes the view that the Complainant’s employment relationship with the Respondent was in no way affected by that event.
Accordingly the Court must conclude that the Complainant was employed as described by the Respondent on the Social Welfare form it signed on 3rd March, 2011.
Noting that this position did not change over the following months; the P45 was not returned to the Complainant and the Respondent continued to pay him for public holidays the Court concludes that the Complainant continued as an Employee with the Respondent until he wrote to it on 7th October giving five weeks' notice of termination of his employment.
The complaints were submitted to the Court the 7thOctober and 15thNovember 2011 respectively. Both of these dates are within the statutory time limit set out in the Act.
Accordingly the Court finds that the complaints are in time and properly before the Court.
Section 18
The Complainant submits that, following his removal from the Tesco assignment on 14th February he was effectively employed on a zero hours contract within the meaning of Section 18 of the Organisation of Working Time Act.
The Respondent submits that as the Complainant was not required to be available for work at any time after 26th February he was not employed on a zero hours contract of employment within the meaning of the Act. The Respondent further submits that the information set out in the Social Welfare form is not relevant as the it simply records a fact rather than decides an matter of law. It submits that determining whether the Complainant was employed on a zero hours contract is a matter of law to be determined as such.
Findings of the Court
The Court finds that the Complainant was employed by the Respondent and assigned to work on the Tesco contract. When he was no longer acceptable to Tesco the Respondent retained the Complainant in employment but did not assign him any work. This is evidenced by the Social Welfare form which it completed on 3rd February 2011.
Normally the contract of employment would determine the Complainant’s legal status at that time. However the terms of the contract of employment are of very little assistance to the Court as it is drafted in the context of a contract for services rather than a contract of service. Accordingly the Court must seek to determine the real nature of the contract from the behaviour of the parties.
The Court finds that the Respondent continued to consider the Complainant an employee and required him to remain available for work. To this end it retained his P45 and did not terminate his employment. A telephone conversation that took place on 11th March did not bring any certainty to the matter. Both parties told the Court they could not recall precisely what they said in the phone call. Accordingly on the balance of probability the Court finds that the purpose of the phone call was to advise the Complainant that Tesco did not agree to the proposal that he return to work in the Donabate warehouse. It is unlikely that any decision regarding the termination of the Complainant’s employment was conveyed in that conversation. The Contracts Manager, Mr Patrik Mateicka, told the Court that his decision-making authority was very limited. He referred all issues to his superior or to head office.
At that time it had no work on its books but in evidence to the Court, Mr Mateicka said that the Respondent was seeking new contracts. The Court notes that in answer to question number 13 on the Social Welfare form the Respondent confirmed that there were full-time vacancies in its business. In answer to question number 8 the Respondent confirmed that it had indicated that the Complainant would have future employment with the company.
However as the Respondent had but one contract in the state and as the Complainant was not acceptable to the client it could not place him in work at that time. However by holding on to his P45 the Complainant remained an employee of the Company. In addition the Court, on the balance of probabilities, concludes that the Respondent required the Complainant to make himself available for any work as an when the Respondent might require him to take up work that might emerge through new or additional contracts the Company might secure.
Section 18(1)(b) of the Act provides
18.—(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—- (a) a certain number of hours (“the contract hours”), or
(b) as and when the employer requires him or her to do so, or
(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,
- (a) a certain number of hours (“the contract hours”), or
The Respondent presented no evidence to the Court to suggest that the Complainant was at any time employed on a casual contract. Indeed the Court, in the course of the hearing, invited the Respondent to address this point and it declined to do so. Accordingly the Court finds that the Complainant was not employed as a casual worker on occasions prior to his removal from the Tesco contract in March 2011.
Section 18(2)(b) of the Act provides
(2) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1)—(b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent. of the hours for which such work has been done in that week.
The Respondent did not contest the assertion that the Complainant was employed as an order picker or that work of that type was done by the Company in the relevant weeks. Accordingly, in accordance with the provisions of Section 18(2)(b) above the Court finds that the Complainant is entitled to 25% of the hours for which such was done in each of the relevant weeks between the date of his removal from the Tesco contract and the date of termination of his employment in November 2011.
The Respondent did not contend that the Complainant was on lay-off at the relevant time.
Accordingly the Court finds that the Respondent retained the Complainant in employment, required him to remain available for work as and when required, but it had no work to offer him at that time.
Determination
As the Complainant was employed on a zero-hours contract of employment within the meaning of Section 18(1)(b) of the Act his entitlement to payment is determined by reference to Section 18(2)(b) of the Act. Accordingly the Court finds that the Complainant is entitled to 25% of the hours for which such work has been done in that week.
From the Respondent’s own submission the Court finds that the standard working hours were forty per week. Accordingly the Court finds that the Complainant is entitled to payment for 10 hours' work for each of the weeks during which he was employed on a zero-hours contract.
Section 19
Section 19 (1) (c) of the Act provides
19.—(1) Subject to theFirst Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
Working time is defined as follows in the Act
"working time"means any time that the employee is -
(a)
at his or her place of work or at his or her employer's disposal, and
(b)
carrying on or performing the activities or duties of his or her work,
and"work"shall be construed accordingly.
The Court has found that the Complainant was employed on a zero-hours contract within the meaning of Section 18 of the Act. Accordingly the Court has found that, as he was an employee that has “not been required to work for the employer at all in each of the relevant weeks he was entitled to“be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week”
The question for the Court to determine is whether the pay the employee would have received if he had worked for the employer in that week includes an accrual of hours towards annual leave entitlement in general and towards compensation for outstanding leave by way of cesser pay on termination of employment.
The Respondent made no submission on this issue.
The Court decides that the intention of the Section is to put the employee in the position they would have been in had they in fact worked the hours in question viz“ be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week”.Had the employee worked those hours in that week they would have accrued an entitlement to annual leave in respect of the hours worked.
Accordingly the Court takes the view that as the Complainant has accrued an entitlement to pay in respect of the weeks on which he was employed on a zero-hours contract he is also entitled to accrue holiday entitlement in respect of those weeks.
Determination
The Court finds that the complaints under Sections 18 and 19 of the Act are well founded. The Rights Commissioner’s Decision is set aside. The Court awards the Complainant compensation in the sum of €5,000.00 to include the full amount due to him under Sections 18 and 19 of the Act and the balance by way of compensation for breach of his statutory entitlements.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
5th October, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.