ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000483

Complaints for Resolution:

Date of Adjudication Hearing: 23^rd March 2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 27 of the Organisation of Working Time Act, 1997, Section 6 of the Payment of Wages Act, 1991, Section 7 of the Terms of Employment (Information) Act, 1994, Section 24 of the National Minimum Wage Act, 2000 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

 Background

The Complainant has been employed since 11^th August 2008. The Complainant had been employed with the Transferor and following a Transfer of Undertaking in July 2012 the Complainant transferred to the Respondent. The Complainant has been issued with a written statement of her terms and conditions of employment by the Respondent on 9^th July 2012.

The Complainant is paid €13.18 an hour when she works as a Chef and is paid €11.29 when she works as a Catering Assistant.

The Complainant referred a complaint to the Workplace Relations Commission on 2^nd November 2015 alleging the Respondent had breached Sections 21 and 22 of the Organisation of Working Time Act, 1997

The Complainant referred a complaint to the Workplace Relations Commission on 2^nd December 2015 alleging a breach of Sections 14 and 21 of the Organisation of Working Time Act, 1997, and alleging a breach of Section 23 of the National Minimum Wage Act, 2000, and a complaint under the Payment of Wages Act, 1991 that the Respondent had made an unlawful deduction.

The Complainant referred a complaint on 3^rd December 2015 alleging the Respondent had breached Section 5 of the Payment of Wages Act, 1991  and a complaint under the National Minimum Wage Act 2000 that the Complainant had not been paid the National Minimum Wage.

The Complainant referred a complaint on 8^th January 2016 that the Respondent had breached Sections 14 and 26 of the Organisation of Working Time Act, 1997 and a complaint under the Payment of Wages Act, 1991 that the Respondent had breached Section 5 of the Act.

The Complainant referred a complaint on 10^th February 2016 alleging the Respondent had breached Section 13 of the Organisation of Working Time Act, 1997 and a complaint on 15^th February 2016 that the Respondent had breached Section 13 of the Act

The Complainant referred a complaint on 17^th February 2016 that the Respondent had breached Section 5 of the Payment of Wages Act, 1991.

The Complainant referred a complaint on 25^th February 2016 alleging the Respondent had breached the Terms of Employment (Information) Act, 1994 in that the statement does not make a reference to Section 11 of the Organisation of Working Time Act, 1997.

The Complainant referred a complaint on 1^st March 2016 alleging the Respondent had breached the Terms of Employment (Information) Act, 1994 as the statement does not make reference to Section  13 of the Organisation of Working Time Act, 1997.

The Complainant referred a complaint to the Workplace Relations Commission on 3^rd March 2016 alleging the Respondent had breached the Terms of Employment (Information) Act, 1994 As the statement does not make a reference to Section 12 of the Organisation of Working Time Act, 1997

Organisation of Working Time Act, 1997 - 2015

Complainants Submission

Complaint of 2^nd November 2015 – The Representative of the Complainant stated the Complainant does not receive her Public Holiday entitlements. The contracts provides for Sunday Premium and Saturday premium. That should be paid during Public Holidays as well.

The Complainant was on sick leave and was not paid for the October Public Holiday.

Complaint of 2^nd December 2015 – The complaint in relation to an alleged breach of Section 14 was withdrawn at the Hearing. The complaint in relation to an alleged breached of Section 21 of the Act is the same issue as the complaint referred on 2^nd November 2015 in relation to Public Holidays.

Complaint of 8^th January 2016 – The complaint in relation to an alleged breach of Section 14 was withdrawn at the Hearing. The complaint alleging Penalisation, Section 26,  was withdrawn at the Hearing.

Complaint of 10^th February 2016 – The Complainant did not receive her weekly rest on week-ending 19^th December 2015.

Complaint of 15^th February 2016 – Alleging a breach of Section 13 on week-ending 30^th January 2016.

Summary of Respondent’s Position.

Complaints of 2^nd November and 2^nd December 2015. -The Complainants Contract of Employment provides that she is paid time plus seventy five percent for Sundays and Public Holidays. The Respondent provided evidence that the Complainant was on sick leave during the October Public Holiday but has been paid for the following Public Holidays - October 31^st 2015 – 25^th and 26^th December 2015 – and 1^st January 2016. The Respondent noted that the complaint in relation to an alleged breach of Section 14 of the Act was withdrawn at the Hearing

Complaints of 8^th Jnauary 2016.  The Respondent noted that the Complainants in relation to an alleged breach of Sections 14 and 26 of the Act were withdrawn at the Hearing.

Complaints of 10^th February 2016, and 15^th February 2015. The Respondent referenced the Complainants Contract of Employment and the Employee Handbook which sets out the statutory breaks. It also provides that if an employee is not able, for unforeseen circumstances, to take her statutory breaks then she should inform the Director of Nursing or the HR Manager of this. The Complainant did not make any complaint to either the Direct of Nursing or the HR Manager that she did not receive her weekly rest break on the specified dates.

Findings

Section 21and Section 22 of the Act

The Specific complaint from the Complainant was that while on sick leave she was not paid for the October 2015 Public Holiday. The Evidence presented by the Respondent was that the Complainant had been paid for all 4 Public Holidays, including the October 2015 Public Holiday. There has been no breach of Section 21 of the Act.

The specific complaint in relation to payment for Public Holidays was that the Saturday and Sunday Premiums should be included in pay for Public Holidays. The Complainant is paid an allowance for working on a Saturday and following the acceptance by the Parties of the Labour Court Recommendation No LCR20908, the Complainant is paid a Sunday Premium of time plus seventy five percent. Payslips provided by the Respondent show that the Complainant was paid her Public Holiday entitlements in line with the Labour Court Recommendation. I find there was no breach of Section 22 of the Act.

Section 13

Section 13 of the Act provides that an employee in each period of 7 days is granted a rest period of 24 consecutive hours and that this is immediately preceded by a daily rest period. The Complainant alleges that she was not provided with her weekly rest period on week-ending 19^th December 2015 and week-ending 30^th January 2016.

The Employee Handbook provides that an employee should inform the Director of Nursing or the HR Manager if they have been unable to take their statutory breaks and both Parties confirmed at the Hearing that the Complainant made no such complaint, nonetheless the onus of ensuring that the employee is receiving her statutory weekly breaks in accordance with Section 13 of the Act rests with the Respondent. The Respondent did not provide any records to show what weekly rest period the Complainant received on these two cited week-ends. I find the Respondent in breach of Section 13 of the Act.

Decision

In accordance with Section 41 (4) of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act, 1997 I declare the complaints are well founded in part. I order the Respondent to pay compensation of €500.00 to the Complainant within 42 days of the date of this Decision.

Terms of Employment (Information) Act, 1994 – 2015.

Summary of Complainant’s Position.

The Complaint of 25^th Feb 2016 states there is no reference to Section 11 of the Organisation of Working Time Act, 1997 – the Complainant dated 1^st March 2016 states there is no reference to Section 13 of the 1997 Act and the Complaint dated 3^rd March 2016 states there is no reference to Section 12 of the 1997 Act.

Summary of Respondent’s Position.

The Respondent referenced the Contract of Employment and the Employee Handbook which sets out the Employees entitlements to her statutory breaks under the Act. It also provides that if the Complainant does not receive her breaks due to unforeseen circumstances that she should inform the Director of Nursing or the HR Director.

Findings

The Complainant’s Contract of Employment dated 9^th July 2012 sets out the Complainants Hours of Work and the Employee Handbook sets out the breaks while at work that the Complainant is  entitled to between the hours of 8am and 8am the following day.

Decision

In accordance with Section 41 (4) of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 – 2015 I declare the complaint is well founded. I order the Respondent to issue the Complainant with a written statement of her Terms and Conditions of Employment to incorporate a reference to Sections 11, 12 and 13 of the Organisation of Working Time Act, 1997 – 2015. This to be issued within 42 days of the date of this Decision.

National Minimum Wage Act, 2000 – 2015.

Summary of Complainant’s Position.

The Complainant’s Representative stated that the Respondent had breached Section 23 of the Act in that they had not provided the Complainant with a statement of her hourly rate on foot of a request dated 30^th October 2015

The Complainant’s Representative stated in the complaint dated 3^rd December 2015 that the Complainant had not been paid the National Minimum Wage since the commencement of the employment.

Summary of Respondent’s Positon.

The Respondent stated that the Complainant requested a written statement of her average hourly rate of pay on 15^th June 2015 and this statement was issued to her on 1^st July 2015. She again requested a statement on 30^th October 2015 and this was provided on 3^rd December 2015 – copies provided to the Hearing.

The Complainant was paid €13.18 an hour when she worked as a chef and she was paid €11.29 an hour when she worked as a Catering Assistant. This is in excess of the Minimum Wage.

Findings

I note that the Representative of the Complainant in a written submission to the Hearing states as follows in the Background Section of the Submission – As a chef the rate of pay is 13.18 euro/hour. As a kitchen assistant the rate is 11.28 euro/hour.

The Complainant and her Representative acknowledged that the Complainant was paid in excess of the National Minimum Wage yet a complaint was lodged with the WRC on 3^rd December 2015 stating as follows: I do not receive the national minimum rate of pay. I find this complaint is not well founded.

The evidence as presented by the Respondent shows that the Complainant requested a statement under Section 23 of the Act in June 2015 and this was provided to the Complainant on 1^st July 2015 and following a further request dated 30^th October 2015 a further statement was issued on 3^rd December 2015. I find there is no breach of Section 23 of the Act.

Decision

In accordance with Section 41 (4) of the Workplace Relations Act 2015 and Section 24 of the National Minimum Wage Act, 200 – 2015 I declare the complaints are not well founded.

Payment of Wages Act, 1991 – 2015.

Summary of Complainant’s Position.

Complaint of 2^nd December 2015 – The Respondent has made an unlawful deduction

Complaint of 3^rd December 2015 – The Respondent has made an unlawful deduction for the last 6 months

Complaint of 8^th January 2016 – The Respondent has made an unlawful deduction for the last 6 months.

Complaint of 17^th February 2016 – The Complainant had to attend for three Disciplinary Hearings in December 2015 – January 2016 and a third day in February 2016 but she was not paid for these days.

Summary of Respondent’s Position.

In January 2013 following cost curtailment measures within the Company, at Conciliation Sessions with the LRC, agreement was reached with both SIPTU and the INMO that staff breaks would no longer be paid, there would be a 6% reduction in the hourly rate of pay and that meals would no longer be provided. The Complainant was informed in writing on 26^th February 2013 that her hourly rate was being reduced to €13.18 an hour and that if she had any query to contact the HR Manager. – copies provided to the Hearing.

Following a further cost curtailment exercise in January 2015, again with the LRC/Labour Court, both Unions agreed to a reduction in the Sunday Premium from Double Time to Time plus 75%. There was a Recommendation of the Labour Court CD/14/363 which issued on 6^th January 2015. This was accepted by both Unions – by SIPTU on 27^th January  2015 and by the IMO on 2^nd February 2015.

On 18^th December 2015 an incident occurred when the Head Chef found the Complainant sitting in her car outside his home. He felt this was threatening behaviour and he contacted the Gardai. While this incident did not happen on the work premises, the Director of Nursing felt she had a duty of care to discuss the matter with the Complainant and the Head Chef on the day. The Complainant was contacted and arrived at the Premises later the same date.

When incidents happen on the Premises all employees are expected to attend even on their day off. The Complainant gave her availability for 18^th December 2015 and 25^th January 2016. The meetings of 25^th January 2016 and 4^th February 2016 were performance related meetings. There is no agreement with SIPTU that such meetings which are held on an employee’s day off are paid. Accordingly no employee has been paid to attend such meetings.

Findings

The Complainant confirmed that she is a member of SIPTU and that she had voted in the SIPTU ballots.

The Supreme Court in the case of D.S. O’Cearbhaill Ors – v- Bord Telecom Eireann stated – “It would be impossible for a union ever to make a collective agreementas envisaged by Section 45 (2) of the 1983 Act because, in order to do so, it would have to obtain the consent of all its members which is something that could rarely if ever be achieved….The Legislature no doubt took the view that trade unions, in entering into collective agreements, could be relied upon to protect fully the interests of their members.

He concluded by saying that Section 45 (2) “meansthat the employees of the new companies may have to accept, by reason of a collective agreement…..less beneficial terms than they were previously entitled to if the change is brought about by collective agreement”.

The changes to the Complainants Terms and Conditions of Employment were changed following a Collective Agreement which was balloted on by the Members of SIPTU, including the Complainant and accepted following this ballot.

Decision

In accordance with Section 41 (4) of the Workplace Relations Act, 2015 and Section 6 pf the Payment of Wages Act, 1991 – 2015 I declare the complaints are not well founded. The reduction in wages resulted from a Collective Agreement between SIPTU, the INMO and the Respondent.

 There is no Collective Agreement nor is it a condition of the Complainant’s Contract of Employment that she is paid to attend Performance or Investigation Meetings with her Employer

Rosaleen Glackin

Adjudication Officer

Dated 15/5/2016