ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00008722

Parties:

 Complainant           Anonymised Parties             Respondent

     A Driver                                                        ValeterCar preparation company  

Representatives

Eamonn O'Hanrahan E.M. O'Hanrahan Solicitors        Mr Conor O’Gorman, Ibec

Complaint(s):

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-00011629-001 29/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00011629-002 29/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00011629-003 29/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00011629-004 29/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00011629-005 29/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00011629-006 29/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00011629-007 29/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00011629-008 29/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00011629-009 29/05/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00011629-011 29/05/2017  

Date of Adjudication Hearing: 21/09/2017 Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

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

Background:

The Complainant commenced employment with the Respondent company on 09/05/2016. The Complainant lodged a complaint with the Workplace Relations Commission on 29th May 2017. It is alleged that the Respondent is in breach of the Organisation of Working Time Act 1997 as follows: ·         Complaint Area 1 – I am not given compensation for working on a Sunday. ·         Complaint Area 2 – I did not get a daily rest period. ·         Complaint Area 3 – I do not get breaks ·         Complaint Area 4 – I did not get weekly rest period ·         Complaint Area 5 – I am required to work more than the maximum permitted weekly hours. ·         Complaint Area 6 – I did not receive my paid holiday/annual leave entitlements. ·         Complaint Area 7 – I did not receive my Public Holiday entitlements. ·         Complaint Area 8 – I am not notified of my starting and finishing times in advance. Terms of Employment (Information) Act 1994 – Complaint Area 9 – The statement of particulars of employment is not in conformity with the requirements of the Act. Payment of Wages Act 1991.Complaint Area 11 - – My employer has made an unlawful deduction from my wages.

Summary of Complainant’s Case:

The Respondent failed to answer a Data Protection Act request for working time records and the Complainant is at a disadvantage in terms of detailing his complaint which disadvantage is caused entirely by the Respondent’s failure to keep such records or their failure to furnish such records in breach of statute. The Complainant outlines eight Sundays that the Complainant worked. Dates are as follows: 15/05/16; 05/06/16; 12/06/16; 26/06/16; 03/07/16; 09/04/16; 16/04/16; 23/04/16. Complaint area 2 – I did not get a daily rest period. The Complainant contends that there have been multiple breaches of the section 11 provisions. Complaint area 3 – I did not get breaks. The Complainant is denied an opportunity to take rest breaks. Complaint area 4 – I do not get weekly rest period. The Complainant routinely works more than seven consecutive days in a row resulting in a breach of section 13 – four examples provided. Complaint Area 5 – I am required to work more than the maximum permitted number of hours. Examples provided over 12 random weeks show an average of 51.46 hours per week. Complaint Area 6 – I did not receive my paid holiday/annual leave entitlements. Based on working an average 51.46 hours per week the Complainant should have been paid 10.7 hours for each day of annual leave and not 7.5 as the Respondent had been paying. Complaint Area 7 – I have not received my public holiday entitlement. The complaint in regard to complaint area 6 above is repeated. Complaint Area 8 – I am not notified of starting and finishing times. The Complainant is routinely issued with a roster at approximately 10.00pm on a Sunday in relation to the following week when he is requested to be at work for an 8.00am start and this is not consistent with the requirement in the legislation for 24 hours’ notice of working time to be provided. Complaint Area 9 – Terms and Conditions of Employment. There is a breach of the following sections of the Act: Section 3 (1) e – no start date inserted. Section 3 (1) g – no reference to remuneration and how it is calculated or any pay reference periods for the purpose of the National Minimum Wage Act. Section 3 h – in that the terms do not specify the length of the intervals between the times at which remuneration is paid. Complaint Area 11. My employer has made an unlawful deduction from my wages. As set out on the complaint form, the Complainant is not permitted to take rest breaks, but when his hours are totted up for the purpose of determining his remuneration, a deduction of 30 minutes per day is made by the Respondent to account for rest breaks which the Complainant has not taken. This amounts to a deduction of between 2.5 and 3.5 hours per week and the Complainant seeks to recover the average of 3 hours per week for 26 weeks.    

Summary of Respondent’s Case:

The Respondent’s representative came on notice very late and had no written submission, the representative addressed each of the complaint areas outlined by the Complainant’s representative. It was very clearly stated that the Respondent had no knowledge of any request made under the Data Protection Act. Complaint Area 1 – Sunday working premium. The Respondent through their representative stated that they had introduced a new composite rate of pay on week commencing 02/01/2017 and this increase was 10 cents per hour. The Respondent claimed that they do maintain working time records but did not have them available at the hearing. It was their understanding that the Complainant had only worked on three Sundays in the 26-week period ending on the date of the complaint to the WRC. Complaint Area 2 – Daily Rest Periods. The Respondent does not keep statutory records of daily rest breaks. Complaint Area 3 – Rest Breaks. The Respondent pointed to the fact that the contract of employment sets out the provision for rest breaks (page 2 – contract of employment – May 2017) and that the Complainant has received his entitlement to a rest break and has never complained of not being able to take his breaks. Complaint Area 4 – Weekly Rest periods. (See response to Complaint Area 3 above). Complaint Area 5 – Weekly working hours. The respondent representative claims that weekly hours are looked at in blocks of 17 weeks as per legislation and in the 26 weeks prior to the date of the complaint there is no breach of legislation. Complaint Area 6 – I did not receive my paid holiday / annual leave entitlement. The respondentclaims that the Complainant has received his annual leave entitlement and at present is not entitled to any annual leave. Complaint Area 7 – I have not received my public holiday entitlements. The respondent appears tohave made no comment in relation to Public Holiday entitlements. Complaint Area 8 – I am not notified of my starting and finishing times in advance. The Respondent points to the fact that the complaint has not been particularised and claims that the Complainant has a casual contract of employment and is offered hours that he can based on “would you like to work” and that no pressure is put on any casual employee to accept hours offered. It is the case that at times employees are approached quite late and asked to work when other employees are absent from work. Complaint Area 9 – Terms of Employment (Information) Act. The Respondent accepts that there is a technical error in the contract regarding the rate of pay, it should be €9.15 per hour and not €9.30 per hour as stated in the contract. Complaint Area 11 – Unlawful deductions from wages. The respondent claims to have no knowledge of this and has not been furnished with dates as to when this is alleged to have taken place. In summing up the representative of the Respondent claims that the Respondent has made attempts to raise these issues with the Complainant and that the Complainant has not utilised the Grievance Procedure that is in place.    

Findings and Conclusions:

Following the hearing of this complaint I requested that time sheets for the period in question be furnished and a made a second request for wage slips. All information requested was provided by the Respondent with copies also sent to the representative of the Complainant. This complaint was received by the Workplace Relations Commission on 29th May 2017, the period in question therefore is the 26 weeks ending on this date. I appear to have time sheets for 25 of these weeks and therefore will work on the average of 25 weeks rather than 26 weeks. The time sheets received are as follows:

1.       Week commencing – Monday 28/11/2016 2.       Week commencing – Monday 05/12/2016 3.       Week commencing – Monday 12/12/2016

4.       Week commencing – Monday 19/12/2016 5.       Week commencing – Monday 26/12/2016 6.       Week commencing – Monday 02/01/2017

7.       Week commencing – Monday 09/01/2016 – should be 2017 (clerical error?) 8.       Week commencing – Monday 16/01/2017 9.       Week commencing – Monday 23/01/2017

10.   Week commencing – Monday 30/01/2017 11.   Week commencing – Monday 06/02/2017 12.   Week commencing – Monday 13/02/2017

13.   Week commencing – Monday 27/02/2017 - week commencing 20/02/2017 is missing. 14.   Week commencing – Monday 06/03/2017 15.   Week commencing – Monday 13/03/2017

16.   Week commencing – Monday 20/03/2017 17.   Week commencing – Monday 20/03/2017 – 2 time sheets for same week? 18.   Week commencing – Monday 27/03/2017

19.   Week commencing – Monday 03/04/2017 – additional time sheet for 04/04/2017 20.   Week commencing – Monday 10/04/2017 21.   Week commencing – Monday 17/04/2017

22.   Week commencing – Monday 24/04/2017 – different format 23.   Week commencing – Monday 01/05/2017 – different format 24.   Week commencing – Monday 08/05/2017 – different format

25.   Week commencing – Monday 15/05/2017 – different format 26.   Week commencing – Monday 22/05/2017 – missing

Complaint CA-00011629 – 001 – Sunday working.Section 14 (1) of the Organisation of Working Time Act clearly states: An employee who is required to work on a Sunday (and the fact of his/her having to work on that day has not otherwise been taken account of in the determination of his pay) shall be compensated by his employer for being required so to work by the following means, namely – (a)    By the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b)    By otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c)     By granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d)    By a combination of two or more of the means referred to in the preceding paragraphs.   The Respondent stated that the Complainant worked on 3 Sundays during this period – from the information contained within the timesheets I see that the Complainant worked on 16 Sundays during this period. Total number of hours worked on Sundays during the period in question is 126 hours. In relation to a pay increase of 10 cents per hour for all hours worked I must consider if this increase meets the criteria outlined in point (b) i.e. by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances.  I believe a fair Sunday premium in this instance is 25% of basic pay i.e. if the normal hourly rate is €9.15 the Sunday rate of pay should be €11.44 per hour. In applying this premium I calculate an underpayment of €278.48 and this amount should be paid to the Complainant.   Complaint CA – 00011629 – 002 – Daily Rest Period.Section 11 of the Organisation of Working Time Act: An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer. From studying the time sheets supplied by the Respondent after the hearing there is one occasion that the Complainant did not receive an adequate daily rest period. This was on the date referred to by the Respondent in his submission i.e. finished work on 9th April at 11.00pm and started work on 10th April at 10.00am, a break of 10 hours. The Complainant is at no financial loss and does not appear to have brought this to the Respondent’s attention. To compensate him for this breach I have decided that one hour off work with pay is appropriate.   Complaint CA – 00011629 – 003 – Breaks Section 12 of the Organisation of Working Time Act lays down a requirement for rest periods, a 15-minute break after 4.5 hours and/or a 30-minute break after 6 hours. No particulars of any breach were presented at the hearing and from information contained on the time sheets supplied post hearing there does not appear to be any infringements of this rule. This part of the complaint fails.   Complaint CA – 00011629 – 004 – Weekly Rest Period. Section 13 of the Organisation of Working Time Act grants a weekly rest period of 24 consecutive hours which must be preceded by a daily rest period of 11 consecutive hours. From information contained on the time sheets provided by the Respondent there appears to one occasion when the Complainant had to work on seven consecutive days i.e. Week commencing 26th December 2016. On the following week (week commencing 02/01/2017) the Complainant worked on six days. I am satisfied that this is a breach of Section 13 of the Act and accordingly award the Complainant an amount equivalent to one day’s pay i.e. €9.15 x 8 = €73.20.   Complaint CA – 00011629 – 005 – Maximum Weekly Hours. Section 15 of the Organisation of Working Time Act looks at weekly working hours. From hours provided on time sheets I have calculated that the average week is 41.76 hours. It should be noted that this average is based on 23 weeks (two weeks’ time sheets missing and one week on holidays). There is no breach of Section 15 of the Organisation of Working Time Act. This part of the complaint fails.   Complaint CA – 00011629 – 006 – Paid holiday / annual leave entitlements. The representative of the Respondent stated that the Complainant did receive his annual leave entitlement. The leave entitlement is clearly stated in the contract of employment. From information contained in time sheets provided by the Respondent it appears that the Complainant took 5 days of annual leave in the 24 weeks for which we have time sheets for. I have no way of telling how many days of annual leave he had in the entire leave year. S.I. No 475/1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 states as follows: (3) If the employee concerned pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purpose of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over – (a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs, or   […..]   I am unable to calculate annual leave and pay for such with the information provided. The Respondent employer should meet with the Complainant and recalculate the leave entitlement and pay for same – this should be completed within six weeks from the date of this decision. Any underpayment should be paid to the Complainant as soon as this exercise has been completed.   Complaint CA – 00011629 – 007 – Public Holiday Entitlements. The exercise outlined above in Complaint 5 should include entitlement to Public Holidays and the appropriate rate of pay for Public Holidays. Payment for a Public Holiday should be calculated in accordance with S.I. 475/1997. Any underpayment should be paid to the Complainant as soon as this exercise has been completed.   Complaint CA – 00011629 – 008. – Failure to notify of start and finish times in advance. Section 17 of the Organisation of Working Time Act refers to the provision of information in relation to working time and states at Section 17 (1): If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.   I note the Complainant’s representative claims that the Complainant is routinely issued a roster at approximately 10.00pm on a Sunday in relation to the following week when he is requested to commence work at 8.00am and that this is not consistent with the requirement in the legislation for 24 hours’ notice of working time to be provided.   There is no indication that the Complainant has brought this matter to the attention of the Respondent but at this point I would request that the Respondent makes every effort in future to ensure that work rosters are issued on a timelier basis.   Complaint CA – 00011629 – 009 – Terms and Conditions of Employment. The Complainant was issued with a casual hours contract of employment dated 08/08/2017 (this was the second contract issued). The Terms of Employment (Information) Act, 1994 clearly obliges all employers to issue to each employee a statement of the particulars of employment missing from the contract issued to the Complainant are the following: ·         The address of the employer in the state. ·         The rate of pay is not correct. These points should be addressed by the Respondent as soon as possible. The Complainant was at no financial loss due to this and therefore I feel that compensation is not necessary.   Complaint CA – 00011629 – 011. Pay. This complaint was withdrawn at the hearing.   Finally; It is a matter of some concern that the Respondent has erred in applying what I believe to be basic employment rights. The fact that the Complainant has been placed in a position whereby he must make a complaint to the Workplace Relations Commission to obtain these rights is disappointing. In addition to the small payments outlined above I have decided that an additional compensation award of €1,000 should be made to the Complainant.   I would also say that the exercise of recalculating holiday pay and payment for Public Holidays be treated as a matter of urgency and that there should be no delay in addressing the subject of underpayments should this be the result of the exercise.        

Decision:

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

Dated:   18 December 2017 Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words: Holiday Pay, Public Holiday Pay, Breaks, Rest Periods