ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002154

Complaints for Resolution:

Date of Adjudication Hearing: 14/12/201                                                                              

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 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

The Complainant has been employed with the Respondent Company since 17^th November 2006. He is employed as a Security Officer, is paid €10.75 an hour and works on average 42 hours a week.

The Complainant referred a complaint to the Workplace Relations Commission on 26^th February 2016 alleging the Respondent had breached the Payment of Wages Act, 1991 and had breached the Organisation of Working Time Act, 1997.

Similar complaints under ADJ 5582, were submitted to the WRC on 20th October 2016. Both sets of complaints were heard by agreement of the Parties on 14^th December 2016.

The period covered by the complaints lodged on 26th February 2016 is from 27th August 2015 to 26th February 2016.

The period covered by the second complaint lodged on 20^th October 2016 is from 21^st April 2016 to 20^th October 2016.

Summary of Complainant’s Position.

Payment of Wages Act, 1991

CA-00002887-004

The Complainant stated that there was €856.26 deducted from his wages on 2^nd October 2015. He alleged this was an unlawful deduction and the Respondent has offered no explanation for this deduction.

Organisation of Working Time Act, 1997.CA-00002887-001.

The Complainant stated that he was on annual leave from 31^st August to 13^th September 2015 and he was not paid his annual leave in advance. He also stated that he was on annual leave from 2^nd November 2015 to 8^th November 2015 and again he was not paid his annual leave in advance. This is in breach of Section 20(2) of the Act.

CA-00002887-002.

Wages received for his annual leave from 31^st August 2015 to 13^th September 2015 is incorrect. He stated that the unsocial payment and the Sunday Premium payments were not included in the calculation of payment for his annual leave. He stated he sent an email to the Respondent and received a response “This is custom and Practice throughout the Company”.

CA-00002887-003

The same issue arose in relation to the calculation of payment for his annual leave from 2^nd November 2015 to 8^th November 2015.

Summary of Respondent’s Position.

Payment of Wages Act, 1991 CA-00002887-001

The Respondent stated that the Complainant received a supplementary amount of €838.50 into his Bank Account on 23^rd September 2015. Bank details supplied post the Hearing. A Sum of €856.26 was added to his next payslip with PRSI of €26.76 deducted. Payslips provided.

There was an exchange of emails between the Parties – copies provided- where the Complainant by email dated 18^th September 2015 requests payment for his annual leave. The Respondent paid a supplementary amount of €838.50 into his Bank Account.

Organisation of Working Time Act, 1997

CA-00002887-001

The Respondent confirmed at the Hearing that annual leave had not been paid in advance.

CA-00002887-002

The Respondent stated that payment for annual leave does not include payment of the Unsocial Payment of €16.80 a day or the payment of the Sunday Premium in the calculation of pay for annual leave.

CA-00002887-003

The Respondent stated this is the same issue under 002

Payment of Wages Act, 1991 -00002887-004

On the basis of the evidence from both Parties I find that the Complainant was issued with a payment of €856.26 into his Bank Account on 23^rd September 2015, while he was on annual leave. This was lodged to his account following his request by email dated 18^th September 2015. The payslip provided to the Complainant shows that the sum of €865.26 is shown as a deduction on his Payslip dated 2^nd October 2015 and it shows a payment of €838.50. This is explained by the deduction of PRSI of €26.76.

On the basis of the evidence I find there has been no breach of Section 5 of the Payment of Wages Act, 1991

Organisation of Working Time Act, 1997

CA-00002887-001

This issue was the subject of a separate complaint to the WRC on 26^th January 2015. The Hearing in relation to that complaint was heard on 15^th June 2015 and a Decision issued on 12^th February 2016. The Rights Commissioner/ Adjudication Officer found against the Respondent and found that the Respondent had breached Section 20 of the Act.

Section 20(2) of the Act provides that “The pay in respect of an employee’s annual leave shall-(a) be paid to the employee in advance of his or her taking the leave”.

I find that the Respondent has breached Section 20 of the Act

CA-00002887-002

The calculation of Pay for annual leave is determined by S.I. 475/1997 at Section 3 (1) where it provides as follows: The normal weekly rate of an employee’s pay, for the purposes of Sections 20 and 23 of the Act (hereafter in this Regulation referred to as the “relevant sections”) shall be determined in accordance with the following provisions of the Regulation. (2) If the employee concerned pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave….commences….

The evidence from both Parties was that the Complainant was paid an unsocial payment of €16.80 per day and he was also paid a Sunday Premium of 41.28 per Sunday worked. The Parties also confirmed that the Complainant was not paid the Unsocial Payment or the Sunday Premium when he was paid his wages in respect of his annual leave taken from 31^st August 2015 to 13^th September 2015.

I find that the Respondent has breached Section20 and S.I. 475/1997 in the calculation of pay for Annual Leave.

Decisions

Payment of Wages Act, 1991 CA-00002887-004.

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my Findings above I declare this complaint is not well founded.

Organisation of Working Time Act, 1997 CA-00002887-001

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is well founded. The Respondent has breached Section 20 of the OWTA, 1997 in that the Complainant was not paid for his annual leave in advance of taking his annual leave

I direct the Respondent to pay the Complainant compensation of €200.00 for breach of Section 20 of the Act

Organisation of Working Time Act, 1997 CA-00002887-002 -003.

I direct the Respondent to pay the Complainant –

€158.88 for annual leave taken between 31st August 2015 to 13th September 2015 and

€50.40 in respect of annual leave taken from 2nd to 8th November 2015

This, subject to any lawful deduction, should be paid to the Complainant within 42 days of the date of this Decision.

I direct the Respondent to pay the Complainant compensation of €200.00 for breach of Section 20 of the Act within 42 days of the date of this Decision.

Date:___27^th February 2017_________________________.