ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000544

Complaint for Resolution:

Date of Adjudication Hearing: 3rd August 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 10^th November 2015, the complainant referred a complaint to the Workplace Relations Commission. The complaint was scheduled for adjudication on the 3^rd August 2016. The complainant is a fleet manager and the respondent is a car rental company. The complainant attended the adjudication in person.  IBEC represented the respondent and the HR Manager attended as witness.

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s Submission and Presentation:

The complainant commenced employment on the 21^st November 2011 and continues to work for the respondent. He outlined that his daily shift was ten hours and he was paid for nine hours. He started at 8am and finished at 6pm, but could work beyond this. His one-hour break during the work day was unpaid. The issue is that the respondent only paid for an eight hour day when providing paid annual leave. Furthermore, annual leave was only paid at the flat rate of 40 hours, while the complainant would often work over 40 hours on average in the preceding 13 weeks. He said that he had worked an average of 45 hours per week prior to recent annual leave. There was also an issue where the complainant's day off was during the week, where he would receive pay for an eight hour day instead of the nine hours he would ordinarily work. This applied for days off during the week apart from Mondays, where the respondent had agreed to pay for nine hours. The complainant outlined that he and other employees had gone from salary to an hourly rate in April 2014. The respondent had provided a new contract to this effect. The complainant's hourly rate of pay is €12.50. The complainant was claiming for the following public holidays in 2015: St Patrick's Day, and the May, June, August and October public holidays. The complainant outlined that he took annual leave between the 2^nd and 6^th November and worked 42.8 hours over the preceding 13 weeks. He took annual leave between the 2^nd and 11^th December and had worked 42.9 hours over the same preceding period. He was paid for 40 hours in each case. He took annual leave for the last week of January 2016 and the first week of February 2016 and had worked an average of 43.9 hours over the preceding 13 weeks. In respect of earlier periods of annual leave, the complainant outlined that he took annual leave between the 26^th April and 6^th May 2015 and had averaged 45.1 hours over the preceding 13 weeks. He took days of annual leave on the 9^th, 22^nd and 23^rd January 2015.

Respondent’s Submission and Presentation:

The respondent outlined that the complainant was confined to a six-month limitation period in advancing this claim pursuant to the Payment of Wages Act. It submitted that the claim was formulated in such a way as to claim redress for a whole period starting in November 2011 and that fell both within and without the limitation period. It was therefore out of time. This was put to the complainant. It said that the complainant, as fleet manager, worked fluctuating hours. The respondent had moved from a salary to an hourly rate in order to recompense employees for fluctuating hours. It acknowledged that it was appropriate to calculate annual leave according to the average hours worked by the complainant over the preceding 13 weeks. It said that in respect of the period of annual leave between the 2^nd and 6^th November, the complainant had worked 544 hours over the preceding 13 weeks, an average of 41.85 hours.

Findings and reasoning:

The complainant seeks redress for shortfalls in wages paid during annual leave and public holidays. He refers to the Organisation of Working Time Act and states that he had not been fully compensated. The correspondence exchanged by the parties addresses his entitlements going back a number of years. At the adjudication, the complainant gave instances in 2015 and 2016 where he asserts that he did not receive his full entitlements. The first issue to address is the temporal scope of this claim. Section 41 of the Workplace Relations Act provides that complaints regarding the payment of wages shall be made within six months of the date of contravention. Given that the complaint was made on the 10^th November 2015, the relevant limitation period is the six-month period prior to this date, subject to an extension of the period for reasonable cause. Going back six months brings the claim to the 10^th May 2015. The complaints that post-date the application cannot be considered as part of this adjudication and must be advanced by way of a fresh complaint. In correspondence of the 7^th June 2015, the complainant refers to involving the Workplace Relations Commission as part of a string of correspondence seeking to address these issues. The complaint was lodged some days after a period of annual leave taken by the complainant between the 2^nd and 6^th November. I find that the complainant is entitled to advance the claim in respect of the incidents that fall within the six-month limitation period. This is because the complaint is framed in a general sense and he advanced specific instances of where he did not receive holiday pay. I apply the approach adopted by the High Court in Health Service Executive v. McDermott [2014] IEHC 331.

Applying this limitation period to the claim, the period of annual leave of the 2^nd to 6^th November 2015 falls within the claim. According to the time sheet provided by the respondent, the complainant worked an average of 41.8 hours between week 32 and 44. He was paid for 40 hours and is due the remainder. I have rounded this up to 2 hours of pay, increasing the redress to €25. He is also due an hour's pay for each of the three public holidays that fell within the limitation period, i.e. a total amount of €37.50. The total due by the respondent to the complainant is €62.50.

The limitation period means that the redress I can award is low. However, this is part of a wider issue that the complainant has raised and in fairness to both parties, they sought to resolve between themselves. If the wider issue is not resolved, this matter could be subject to repeat complaints to the Workplace Relations Commission. This does not appear conducive to good industrial relations.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

The respondent shall pay to the complainant the amount of €62.50 as redress for unpaid holiday pay.

Dated:   19^th October 2016