ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: 873
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001063-001 | 24/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00001063-002 | 24/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00001063-003 | 24/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00001063-004 | 24/11/2015 |
Date of Adjudication Hearing: 03/10/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
At the commencement of proceedings, it was agreed to combine this claim with Adj 867
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or section 27 of the Organisation of Working Time Act, 1997 and or section 6 of the Payment of Wages Act, 1991 and or section 7 of the Terms of Employment (Information) Act, 1994
following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing:
By | Complainant | Respondent |
Parties | An Employee | A Newsagents |
Complainant’s Submission and Presentation:
CA-0001063-001 and CA-0001071-001 I work as a shop employee in a busy shop and I was only given a 30-minute rest break every day, my working day 8 am to 5 pm |
CA-0001063-002 and CA-0001071-002 When making deduction from my wages my employer sometimes makes deductions from my net pay and not from my gross pay pro rate depending on hours. |
CA-0001063-003 and CA-0001071-003 I have not received a contract of employment from my employers despite repeated requests. |
CA-0001063-004 and CA-0001071-004 I have worked with my employer for the hours of 8 to 5 from 2007 to date. My employer changed my hours of work in September without asking me. My employer did this to facilitate a new staff member who required specific working hours, my employer expected me to be flexible in relation to the hours I worked. This meant that not only were my hours of work changed but sometimes my weekly working hours were reduced. My hours of work were often given to me at short notice, sometimes written on the back of an envelope. |
Respondent’s Submission and Presentation:
CA-0001063-001 and CA-0001071-001 - Rest Breaks
The Respondent provides a 30-minute lunch break during the day, generally between 12:00 to 14:30. At all other times there are plenty of opportunities for breaks to be taken and the Respondents always facilitated the Complainants in this regard.
No requests for any changes to these arrangements from the Complainants had even been bought to the Respondent’s attention.
CA-0001063-002 and CA-0001071-002 Payment of Wages Act claim.
The Respondent denied any irregularities in the wages paid. However, he did admit that sometimes for purposes of convenience small adjustments were made to the nett pay of the Complainants -these were rectified from a Tax point of view in the new payroll run by the Respondents Accountant.
CA-0001063-003 and CA-0001071-003 - Contracts of Employment
Respondent accepted that the non-furnishing of contracts to the Complainants prior to very recent times was an oversight and was not in any way ill intentioned. Contracts are being provided at present.
CA-0001063-004 and CA-0001071-004 - Non-Notification of changes to Terms of Employment.
The business is a busy Newsagents and the need to introduce a Shift System was business driven. The Complaints were informed in writing via the proposed new Contracts and on their roster of the proposed changes
Decision:
Section 41(4) of the Workplace Relations Act 2015and or section 27 of the Organisation of Working Time Act, 1997 and or section 6 of the Payment of Wages Act, 1991 and or section 7 of the Terms of Employment (Information) Act, 1994 requires that I decide in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Issues for Decision:
CA-0001063-001 and CA-0001071-001
Were rest breaks given as specified in the Organisation of Working Time Act ,1997?
CA-0001063-002 and CA-0001071-002
Were deductions made in contravention of the Payment of Wages Act, 1991?
CA-0001063-002 and CA-0001071-003 and CA-0001063-004 and CA-0001071-004
Did contraventions of the Terms of Employment (Information) Act, 1994 take place?
Legislation involved and requirements of legislation:
The Workplace Relations Act 2015and or the Organisation of Working Time Act, 1997 and or of the Payment of Wages Act, 1991 and or the Terms of Employment (Information) Act, 1994
Decision:
CA-0001063-001 and CA-0001071-001
Were rest breaks given as specified in the Organisation of Working Time Act, 1997 (OWT Act)?
Section 12 of the OWT Act refers. Under sub section 12 (3) the Organisation of Working Time (breaks at Work for Shop Employees) Regulations 1998 (S.I. No 57 of 1998) stipulates that
Section 3.
In relation to the following class of employee, namely, an employee-
Who is a shop employee
And
Whose hours of work as such an employee include the hours from 11.30 a.m. to 2.30 p.m.
The minimum duration of the break to be allowed by the employer under section 12(2) of the Act to him or her shall be one hour and that break shall unless its commencement between those hours would result in section 12(4) of the Act not being complied with, commence between the hours aforesaid.
As the Complainants were only afforded a 30-minute break in the reference period of 11:30 hrs to 14:30 hours a breach of the Act has taken place.
It was not contested that this 30-minute break had been the custom and practice since both Complainants commenced employment in 1/10/2006 for Complainant AM and AS in October 2005 respectively.
Accordingly Redress as follows is ordered as per Section 27 of the OTW Act, 1998
The hourly rate was stated to be €10:00 /half an hour being €5:00.
Redress is ordered to be 104 weeks at €5:00 = €520 per Complainant.
CA-0001063-002 and CA-0001071-002
Were deductions made in contravention of the Payment of Wages Act, 1991?
The evidence presented clearly indicated that deductions were regularly made from the Nett Pay of the Complainants. These deductions were not agreed with the Complainants. The deductions were in the main quite minor and were adjusted in following week’s PAYE payroll.
Nevertheless, a breach of the Payment of Wages Act, 1991 has taken place and redress as follows is ordered.
I award the sum of € 50 to each of the Complainants in regard to the breach of the Act
CA-0001063-002 and CA-0001071-003 and CA-0001063-004 and CA-0001071-004
Did contraventions of the Terms of Employment (Information) Act, 1994 take place?
It was agreed by the Respondents that in relation to CA-0001063-002 and CA-0001071-003 an inadvertent breach of the Act had taken place. This breach was rectified by the issuing of draft Contracts to the employees in November of 2015.
For the breach of the Act under the complaint numbers specified above I award as Redress one week’s pay to both Complainants.
Taking an average from the figures quoted in evidence this equates to € 400 to each Complainant.
As regards CA-0001063-004 and CA-0001071-004 /notification of changes to the Contract the written evidence indicated that the formal notification was contained in the Draft Contracts of Employment on November 2015 and a handwritten note on a wage packet detailing the changed hours for the following week.
While it was minimal it satisfies the basic requirements of the Act and this element of the claim is accordingly not well founded.
Dated: 25 November 2016