ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002915
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-00004177-001 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004177-002 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004177-003 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004177-004 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004177-005 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004177-006 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004177-007 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004177-008 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00004177-009 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00004177-010 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00004177-011 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004177-012 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004177-013 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004177-014 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004177-015 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004177-016 | 20/04/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00004177-017 | 20/04/2016 |
Date of Adjudication Hearing: 15/07/2016
Workplace Relations Commission Adjudication Officer: Marguerite Buckley
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.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Production Operative | A Manufacturing company |
Complainant’s Submission and Presentation:
The Complainant started working for the Respondent on the 17th of September 2007. His employment ended on the 5th of January 2016. He worked a forty hour week at €11.66 per hour.
Initially the Complainant was employed as a driver and stores operative but following the issue of a medical report by the Respondent’s doctor on the 27th of June 2014 he worked as a general operative with the Respondent.
The Complainant never received a personalised statement of his terms and conditions of employment.
Respondent’s Submission and Presentation:
When the Complainant commenced employment he signed a confirmation of employment letter. That letter referred to a memorandum of agreement collectively negotiated between the Respondent and SIPTU (of which the complainant was a member) in March 2004. The agreement was updated from time to time and a copy of the agreement was available to all staff. It was stated in the agreement that each employee would be provided with and must sign for a copy of the agreement, the original of which would be retained by the company.
No complaint was ever made to the Respondent during the Complainant’s employment as to the provision of a contract in compliance with the Terms of Employment Information Act. The Respondent’s position was that the claim was an attempt to secure compensation.
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.
Decision:
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994. Statement does not comply with section 3(1)(a) | |||
The Complainant’s claim is that the full name of the respondent was not set out in the written statement containing the terms of the complainant’s employment. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (Information) Act 1994, I find the case is not well founded. The name of the Respondent is stated on the letter of engagement entered into by the complainant setting out a start date of the 17th September 2007. | |||
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994. Statement does not comply with section 3(1)(b) | |||
The Complainant’s claim is that the address of the Respondent in the State or, where appropriate, the address of the principal place of the relevant business of the Respondent in the State was not set out in the written statement containing the terms of the complainant’s employment. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is not well founded. The address of the Respondent is set out in the letter of engagement signed by the Complainant. | |||
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994. Statement does not comply with section 3(1)(c) | |||
The Complainant’s claim is that the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places was not set out in the written statement containing the terms of the complainant’s employment. | ||||
Decision:
| In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is not well founded. The complainant went to work at the manufacturing plant every day he worked and this is the address of the Respondent as set out at the heading of the letter of engagement which was signed by the complainant. | |||
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994 Statement does not comply with section 3(1)(d) | |||
The Complainant’s claim is that the title of the job or nature of the work for which the employee is employed was not set out in the written statement containing the terms of the complainant’s employment. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is not well founded. The letter of engagement states the employment of the complainant as “driver and stores”. | |||
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994 Statement does not comply with section 3(1)(e) | |||
The Complainant’s claim is that the date of commencement of the employee's contract of employment was not set out in the written statement containing the terms of the complainant’s employment. | ||||
Decision:
| In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is not well founded. The letter of engagement states “starting from 17th September 2007”. | |||
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994 Statement does not comply with section 3(1)(g) | |||
The Complainant’s claim is that the rate or method of calculation of the employee's remuneration was not set out in the written statement containing the terms of the complainant’s employment. | ||||
Decision:
| In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is not well founded as regards the method of calculation. The letter of engagement states “the basic rate of pay will be an hourly schedule”. I find the case will founded as regards the rate of pay. | |||
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994 Statement does not comply with section 3(1)(h) | |||
The Complainant’s claim is that the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval was not set out in the written statement containing the terms of the complainant’s employment. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is not well founded. In the Memorandum of Agreement entered into between the Respondent and SIPTU in March 2004 (a copy of which was provided to the complainant with his letter of engagement) on page 5 thereof, sets out the rates of pay “An employee’s basic rate of pay will be an hourly schedule and paid weekly one week in arrears”. | |||
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994. Statement does not comply with section 3(1)(i) | |||
The Complainant’s claim is that any terms or conditions relating to hours of work (including overtime) was not set out in the written statement containing the terms of the complainant’s employment. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is not well founded. In the Memorandum of Agreement entered into between the Respondent and SIPTU in March 2004 (a copy of which was provided to the complainant with his letter of engagement) on page 6 thereof, sets out the hours of work and what the rates of pay for overtime. | |||
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994 | Statement does not comply with section 3(1)(j) | ||
The Complainant’s claim is that his terms or conditions relating to paid leave (other than paid sick leave) were not set out in the written terms of employment. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find this claim is not well founded. There is reference on pages 5, 7 and 8 of the agreement made in March 2004 to annual leave, compassionate leave, force majeure/parental leave, maternity leave and adoptive leave. | |||
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994 | Statement does not comply with section 3(1)(k) | ||
The Complainant’s claim is that any terms or conditions relating to— (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes was not set out in the terms of employment. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case referable to section 3 (1) (k) (i) is not well founded. There is reference on pages 5, of the agreement made in March 2004 to sick leave. I find the case referable to section 3 (1) (k) (ii) is well founded. | |||
CA 4177-17 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994: section 3 (1)(l) | |||
The Complainant’s claim is that (l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice was not contained in the terms of employment. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is not well founded. On page 4 of the agreement entered into in March 2004 sets out that Notice shall be in accordance with the Minimum Notice And Terms of Employment Acts. | |||
CA 4177-16 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994: section 3 (1)(m) | |||
The Complainant’s claim is that a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made was not contained in the terms of employment provided to the complainant. | ||||
Decision | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case referable to section 3 (1) (m) is not well founded. There is reference on pages 1, of the agreement made in March 2004 to the agreed terms and conditions of employment of the employees of the company. | |||
CA 4177 – 005 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994 | Statement does not comply with section 5 | ||
The Complainant’s case is that a change was made to his role within the company and the employer didn’t notify the employee in writing of the nature of the change within 1 month after the change took effect. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is not well founded. A letter of notification dated 10th October 2014 was given by the Respondent to the Complainant. It contained the following information: “based on this outcome you will remain on the production shop floor as a general production operator. Duties will be assigned to you by your Team Lead”. | |||
CA 4177 – 006 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994 | |||
The Complainant’s case is that he did not receive a statement in writing on the terms of employment in compliance with Section 3 (ga) that the employee may, under Section 23 of the Notional Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is well founded. | |||
CA 4177 – 008 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994 | |||
The Complainant’s case is that he was not notified in writing of a change of company name from a limited company to an unlimited company. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the case is well founded. | |||
CA 4177 – 013 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994
| |||
The Complainant’s case is that he did not receive a statement in writing setting out his daily rest periods under Section 11 of the Organisation of Working Time Act 1997 as required by the Terms of Employment (Additional Information) Order 1998. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the claim is well founded. Hours of work are set out on page 6 of the Agreement entered into between SIPTU and the Respondent in March 2004. The finishing time is set out at 4.30pm with ten minutes cleaning up time. There is more than eleven consecutive hours to the start time listed at 8.00a.m. There is a further clause regarding over time. There is no specific clause regarding daily rest periods.
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CA 4177-14 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994
| |||
The Complainant’s case is that he did not receive a statement in writing of terms of employment in that he received no details of Section 12 of the Organisation of Working Time Act 1997 as required by the Terms of Employment (Additional Information) Order 1998. | ||||
Decision: | In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the claim is not well founded. Hours of work are set out on page 6 of the Agreement entered into between SIPTU and the Respondent in March 2004. Three breaks were provided for in the agreement. | |||
CA 4177-015 | Complaint under Section 7 of the Terms of Employment (Information) Act 1994 |
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The Complainant’s case is that the statement of his terms of employment is deficient in that it does not contain details of Section 13 of the Organisation of Working Time Act 1997 as required by the Terms of Employment (Additional Information) Order 1998. | ||||
Decision: In accordance with section 7(2) (a) of the Terms of Employment (information) Act 1994, I find the claim is well founded. Days of work are set out on page 6 of the Agreement entered into between SIPTU and the Respondent in March 2004. The days of work are Monday to Friday only. Overtime for Saturdays and Sundays is set out. There is no reference to weekly rest periods. | ||||
CA 1477 - 009 | Complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 – SI No 36 of 2012 | |||
The Complainant’s case is that he was not notified of the working hours regulations applying to the road transport sector under section 11 which sets out: An employer of a mobile worker shall notify the worker of the provisions of these Regulations and the provisions of any collective agreement, employment regulation order or registered employment agreement which is capable of application to that worker and keep available for inspection at all reasonable times a copy of these Regulations and any applicable employment regulation order or registered employment agreement. | ||||
Decision: Section 11 (1) of the regulations set out complaints made under these regulations. It is clear that these regulations apply to a mobile worker. Section 18 (1) states that a mobile worker may present a complaint that the mobile workers employer has contravened the regulations in respect of the mobile worker. The Transport Working Time Directive DIR2002/15/EC defines a mobile worker as any worker who is part of the travelling staff of a company or business that operates transport services for a) passengers or goods for hire or reward, or b) to carry out the companies own business. The Complainant brought the complaint under this section on the 18th of April 2016. On that date and on the date of the termination of his employment he was not a mobile worker within the definition of the directive. He ceased to be a mobile worker on the 10th October 2014. Therefore his complaint under this regulation fails. | ||||
CA 4177- 10 | Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
| |||
The complainant’s case was that he was given notice of termination of his employment on the 8th December 2015. On that day he was paid in lieu of notice. The complainant’s case is that he had not waived his right to receive notice. This was in breach of the act unless there was written consent to same in the contract of employment. | ||||
Decision: The right to waive notice is set out in Section 7(1) of the Minimum Notice and Terms of Employment Act 1973. The wording of same is (1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice (emphasis added) As the complainant accepted his payment in lieu of notice on the 8th December 2015 he cannot now claim that this was in breach of the terms of the legislation. This claim is not well founded. | ||||
CA 4177- 07 CA 4177- 03 CA 4177- 04 | Complaint under Section 27 of the Organisation of Working Time Act 1997
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The Complainant’s case is that he did not receive his public holidays entitlements for the 25th December 2015, 26th December 2015 and 1st January 2016 and claimed a breach of Sections 21, 22 and 23 of the Act. | ||||
Decision: The Respondent admitted that the Complainant was not paid his public holiday entitlement for the days 25th December 2015, 26th December 2015 and the 1st January 2016. These payments were made by the Respondent before this decision has been delivered by agreement between the parties. | ||||
CA 4177- 02 | Complaint under Section 27 of the Organisation of Working Time Act 1997
| |||
The Complainant’s case is that he did receive his annual leave entitlements generally and claimed a breach of Section 23 of the Act. | ||||
Decision: | The Complainant agreed that he had received his annual leave entitlement at the hearing. I find this complaint not well founded. | |||
CA 4177- 01 | Complaint under Section 21,23 and 22 of the Organisation of Working Time Act 1997
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The Complainant’s case is that he did not receive his public holiday entitlements.
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Decision: | The Respondent agreed that the Complainant had not received all of his Public Holiday entitlements at the hearing and would pay any outstanding payments. I find this complaint well founded. | |||
CA 4177- 12 | Complaint under Section 19 and 20 of the Organisation of Working Time Act 1997
| |||
The Complainant brought a claim in that he did not receive his proper annual leave entitlements | ||||
Decision: | The Complainant’s submission set out that the required records under the Organisation of Working Time Acts were requested under a Data Protection Request. The Respondent submitted that these records were provided. At the hearing the Complainants representative checked the records received under the data access disclosure and located proof that the payments /entitlements were provided. The Complainant himself confirmed that he received his annual leave. I find that the case is not well founded. | |||
Having examined the company and workers agreement in detail, while it doesn’t comply with all of the requirements of the Terms of Employment Information Act and the regulations made thereunder I am satisfied that the Complainant did receive all the information he required in relation to the essential elements of the terms and conditions attaching to his employment.
I cannot understand why the Complainant brought the number of claims that he did. He brought 19 claims under the Terms of Employment Information Act, 6 claims under the Organisation of Working Time Act and 1 claim under the Minimum Notice Act. In total he brought 26 claims in relation to a workplace where a Memorandum of Agreement had been entered into between the Respondent and SIPTU in March 2004 with reference to terms of employment in the workplace and a copy of which was provided to the complainant with his letter of engagement.
Compliance with the Terms of Employment Information Act can be met by reference to a number of documents and need not be contained in one single document.
Many of the complaints that the Complainant brought related to a failure to provide information on matters that had no practical significance in what was being complained of. I am applying the Labour Court’s decision in Irish Water –v- Patrick Hall TED161 where the court was satisfied that in the circumstances of that case any deviations that may have occurred from the strict letter of Section 3 of the Act were so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimus rule.
Any omission by the Respondent to pay public holiday pay for a period after the termination of the Complainant’s employment was an oversight and was rectified by the Respondent.
I award the sum of €450.00 in total as compensation in respect of breach of the above Acts which is broken down as follows:
CA4177-17 Breach of Section 3(1)(g): Nil due to the minor nature of the default
CA4177-17-Breach of Section 3(1)(k)(ii): Nil due to the minor nature of the default
CA4177-06-Breach of Section 3(ga) Nil due to the minor nature of the default
CA4177-08-Breach regarding change in company name: Nil due to the minor nature of the default CA4177-13-Breach re daily rest periods: Nil due to the minor nature of the default
CA4177-15:Breach re weekly rest periods: Nil due to the minor nature of the default
CA4177-07/03/04: €250.00
CA4177-01: €200.00
Dated: 11th January 2017