ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00005020
Complaints 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-00007106-001 | 20/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00007106-002 | 20/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007106-003 | 20/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007106-004 | 20/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00007106-005 | 20/09/2016 |
Venue: Ashdown Park Hotel, Gorey, Co Wexford
Date of Adjudication Hearing: 28/11/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 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 was employed as a Sales Assistant from 22nd September 2014 to 23rd January 2016. He was paid €8.85 per hour and worked full time. He has claimed that he did not get compensated for Sunday working; he did not get daily breaks, weekly breaks and minimum notice.
Request for an extension to the time limit
Complainant
The circumstances were unusual. The store closed abruptly on 23rd January 2016. He met with the Liquidator in May 2016. He then spoke with a solicitor is June / July 2016. He was advised by his solicitor to make an application to the Labour Inspectorate of the Workplace Relations Commission. He was then informed by the Inspectorate to submit complaints to the Adjudication service. He was misinformed by his solicitor. The extension should be granted.
Decision
The Labour Court in the Cementation Skanska V Carroll DWT00338 (WTC0333) stated, “in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”
Therefore in order to grant the extension on the basis of reasonable cause the excuse muse must explain the delay in presenting the complaints within the first six months following the contravention.
I note the circumstances of this case. In particular I note the allegation of misinformation from his solicitor which resulted in the complaints being sent to the wrong place.
Under the circumstances I have decided to grant the extension as I believe that the misinformation which caused the delay is a reasonable excuse.
The complaint was received on 20th September 2016. Therefore the period that may be investigated is 21st September 2015 to 23rd January 2016, the end of the employment.
1) Organisation of Working Time CA-00007106-001/003/004
Complainant’s Submission and Presentation:
a)Sunday premium |
He stated that he worked 3 Sundays each month and 6 hours per day. He was paid a flat rate. The contract stated that it was inclusive rate for any additional hours and Sunday working. The rate was 0.20cent above the minimum wage. b)Breaks on Sunday He worked the Sundays on his own and could not get proper breaks. c) No break on 17th September 2015 He stated that he commenced at 10.00am and had to take a lunch break at 11.30am to 12.30pm. During that hour he had to do the bank lodgement. Also he worked from 12.30pm to 7.00pm without a break. d)Weekly break He stated that he received only 4 days off between the 30th April 2015 and 4th July 2015. Respondent’s Submission and Presentation:The business is in liquidation. The Liquidator was not represented at the hearing. |
FindingsBased on the uncontested evidence I find as follows: - a)Sunday premium |
Sec 14 (1) (b) of this Act states, “an employee who is required to work on a Sunday .. shall be compensated by otherwise increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances b) by increasing the employees’ rate of pay by such an amount that is reasonable, c) by granting an employee such paid time off as is reasonable, d) or by a combination of two or more of the mean referred to in the preceding paragraph”. I note that he was paid an additional 0.20 cent per hour for all or any additional hours and Sunday working. I find that this does not meet the requirement of “reasonable”. I find for this industry time and one quarter would be deemed reasonable. Therefore I find that he should have been paid €10.80 per hour on Sundays. During the allowable period I find that he worked 13 Sundays at 6 hours = 78 X €1.95 = 152.10. I find that he is owed €152.10 for the economic loss and in addition €100.00 in compensation for breach of his rights under this Act.
b)Breaks on Sunday I find that he did not get breaks on Sundays worked as he had no cover. I find that he Respondent has breached Sec 12 of this Act. Sec 12 of the Act sets out clearly the breaks that must be provided Sec 12(1) states, “an employer shall not require an employee to work for a period of more than 4 hours 30 minutes without allowing him or her a break of at least 15 minutes”. 12(2)” “an employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes”. Breaks have a health and safety aspect to them and so are very important to be provided.
I find that the Complainant should receive compensation of €200 for breach of his rights under this Act.
c) No break on 17th September 2015 I find that he did not get the proper break on that day. The Statutory Instrument 57/1998 in dealing with Shop Workers Lunch Breaks provides for a 1-hour break between 11.30 and 2.30pm if 6 hours worked in shift. I find that the Respondent did not provide this break. I find that the Complainant should be paid €50.00 for breach of his rights under this legislation. d)Weekly break I accept the Complainant’s evidence that he received only 4 days off between the 30th April 2015 and 4th July 2015. However this infraction occurred outside the time limit allowed. I cannot adjudicate on this matter. |
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Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the above stated reasons I have decided that the Respondent should pay the Complainant €152.10 for the economic loss and in addition compensation of €350.00 for breach of his rights under this Act.
2) Minimum Notice and Terms of Employment Act - CA-00007106-005
The complaint for minimum notice was also served under Adjudication No 4067 and was adjudicated upon.
I have decided that a complainant cannot receive redress for the same complaint under two pieces of legislation.
2) Payment of Wages Act CA-00007106-002
Complainant’s Submission and Presentation
a) Minimum Notice
This complaint was dealt with under the Minimum Notice and Terms of Employment Act.
b) Overtime payment
He stated that week 15th to 20th December 2015 he worked 47.5 hours but was only paid flat rate for the hours worked. He believed that he should receive overtime rate for the hours worked.
Respondent’s Submission and Presentation:
The business is in liquidation. The Liquidator was not represented at the hearing.
Findings
I find that an examination of the contract of employment does not provide for overtime rates for hours worked in excess of 39 hours per week.
There is not a legal entitlement to overtime rates unless it is provided for in the contract of employment.
Therefore I find no basis for the complaint.
Decision
For the above stated reasons I have decided that complaint should fail.
Eugene Hanly
Adjudication Officer
Dated: 19 April 2017