FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NOONAN SERVICES GROUP LTD (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRE.) LTD) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of a Rights Commissioner's Recommendation no: r-126586-Ir-12/POB.
BACKGROUND:
2. The Claimant is claiming he is owed €8,949.50 for hours worked, annual leave, overtime, breaks and public holidays for which he claims he was not remunerated.
- The Employer said it did not appeal the Rights Commissioner’s Recommendation and was willing to accept it on the basis that it was an industrial relations issue and therefore an industrial relations formula was applied.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 10th April 2014 the Rights Commissioner issued the following Recommendation:-
- With regard to the Claimants claim to be paid 168 hours for 2010, 2011 and 2012 I believe under the OWT Act he should be paid four week’s pay at the average hours worked for each year if he worked the hours he submitted as worked. The Company should review the work records of the claimant, the relevant Act (OWT) and pay any monies due within four weeks of today’s date.
With regards breaks given after four and half hours being worked the law is clear that this does not constitute a proper break (section 12.4 of the 1997 Organisation of Working Time Act), however in this case it appears that the parties agreed to this situation. In the event that the claimant was not paid for these fifteen minutes the legislation is silent on this matter and in the absence of a stated clause that says the claimant should be paid then there is no obligation on the employer to pay. So while there was a technical breach of the Organisation of Working Time Act (which of course was not the Act under which I was considering the claim but I used as a reference point) because it was by mutual agreement to take the break at the end of the working day I see no reason to propose any financial or other industrial relations solution to this part of the claim.
On the payment at double-time there was no formal justification submitted to show that this should be paid at double-time.
On the payment of the public holiday pay the claimant confused me as to his exact claim and the justification. The rules reading payment for public holidays are set out in law and the claimant is entitled to the benefit of the law, but no other method that has not been formally agreed or contracted by the parties.
- With regard to the Claimants claim to be paid 168 hours for 2010, 2011 and 2012 I believe under the OWT Act he should be paid four week’s pay at the average hours worked for each year if he worked the hours he submitted as worked. The Company should review the work records of the claimant, the relevant Act (OWT) and pay any monies due within four weeks of today’s date.
A Labour Court hearing was scheduled to take place on the 8th October 2014 but was postponed at the request of the Claimant. A rescheduled hearing took place on the 26th February 2015.
WORKER’S ARGUMENTS:
3. 1. The Claimant did not receive the correct annual leave entitlement in 2009, 2010, 2011, 2012, 2013 and 2014.
2. The Claimant was instructed to work in excess of 4.5 hours without a break.
3. The Claimant was paid at the basic rate when he worked overtime.
EMPLOYER’S ARGUMENTS:
4. 1. The Claimant received payment for annual leave of either four week’s pay per year or 8% of the hours he worked in all of the relevant years.
2. The Claimant did not work for more than 4.5 hours per day.
3. Under the terms of the Company’s policies and procedures, overtime is paid after an employee works 39 hours per week.
DECISION:
Having considered the submissions of both parties to this dispute the Court recommends that the Company undertake a review of the records of the Claimant’s holidays in the twelve-month period prior to the date on which the claim was lodged with the Rights Commissioner Service and make good the shortfall, if any, that the review discloses.
Should that initial review disclose a shortfall the Respondent should proceed to review the records for a further six-month period back and make good any further shortfall that the further review discloses.
Access to the relevant records should be made available to the Claimant through his trade union to enable him to verify the outcome of the relevant reviews.
The exercise should be completed within twelve weeks of the date of this Decision.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
30th April, 2015.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.