FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : G4S SECURE SOLUTIONS (IRELAND) LTD (REPRESENTED BY IRISH BUSINESS EMPLOYERS' CONFEDERATION) - AND - PAWEL ZADRUZNY DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal Of Adjudication Officer Decision No(s); ADJ-00002154/00005582 CA-00002887-001/002/003 and CA-00007742-001/002
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 6 April 2017 in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 18 May 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Pawel Zadruzny against the quantum awarded by an adjudication officer that three complaints he submitted to the WRC under Section 27 of the Organisation of Working Time Act 1997 together with a complainant under section 6 of the Payment of Wages Act 1991 were well founded and awarded him compensation in each case. The Complainant appealed against that decision to this Court. The basis of the appeal is that each of the awards is not sufficient.
The adjudication officer issued her decision on 27 February. The appeal was filed with the Labour Court on 6 April 2017. The case came on before the Court on 18 May 2017
The Facts
The Complainant has been employed with the Respondent Company since 17th November 2006. He is employed as a Security Officer, is paid €10.75 an hour and works on average 42 hours a week.
The Complaints
Organisation of Working Time Act, 1997.
Complaint No CA-00002887-001.
The Complainant submits that the Respondent Company did not pay him for annual leave in advance of leave taken between 31 August 2015 and 13 September 2015 and again between 2 November 2015 and 8 November 2015. He submits that this is in breach of section 20(1) of the Act.
The Respondent acknowledges that the Complainant was not paid in advance for annual leave on those occasions. It submits it has an agreement with the Trade Union that represents staff in the Company for annual leave to be paid fortnightly unless an alternative arrangement is requested by an employee. It relies on section 20(3) of the Act which states
Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of and the pay in respect of his or her annual leave.
It acknowledges that the Complainant was not a member of that Trade Union and consequently was not a party to that agreement.
Findings of the Adjudicator
The Adjudicator found that the Complaint was well founded and awarded the complainant compensation in the sum of €200.
The Complainant seeks additional compensation arguing that the practice is systemic and is a serious one in a series of repeated breaches of his rights under the Act.
The Respondent submits that its normal practice is part of a widely accepted agreement with a Trade Union and that the complainant’s objection to having the terms of that agreement applied to him is unusual and rare. It however acknowledges the infringement, submits that it now has procedures in place to accommodate him and submits that the award of compensation is fair and reasonable in all the circumstances of the case and should be upheld.
The Law
Section 20 of the Act in relevant parts state
(2) 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
And section 20(3) states
, (3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.
Findings of the Court
The Court finds that the Complainant’s case is well founded. It finds that the Respondent has acted in a manner that complies with an agreement it has with a trade union that is broadly representative of its staff. The Court notes that the Respondent has acknowledged that it infringed the Complainant’s rights and has taken steps to rectify its procedures in respect of the Claimants rights to be paid in advance of his annual leave
No evidence of any detriment suffered by the complainant was presented to the Court.
The Court, from its own expertise in industrial relations matters, notes that payment on a normal fortnightly cycle is preferred by many workers as there is no delay in the payment of wages after they return from annual leave. However the Court notes that the Complainant wishes to be paid strictly in accordance with the Act, as is his entitlement, and is not a member of the recognised trade union with whom the alternative holiday pay arrangement was agreed. Accordingly the Court finds that the Complainant’s rights were infringed and he is entitled to compensation for the infringement.
The Court takes the view that the infringement was however at the lower end of the scale and the Complainant gave no evidence of any detriment he suffered as a result of the infringement.
Accordingly, in all the circumstances of the case, the Court finds that the award made by the adjudication officer is fair and just and upholds her decision.
Determination
The appeal is not allowed. The decision of the adjudication officer is affirmed. The Court so determines.
Complaint No CA-00002887-002.
The Complainant submits that the respondent miscalculated his normal weekly wages for the purpose of annual leave taken between 31st August 2015 and 13th September 2015. He submits that he is paid a premium payment for working on Sunday and that this should have been but was not included in the calculation of his normal weekly pay. He submits that this is contrary to section 20 of the Act. He stated he sent an email to the Respondent and received a response “This is custom and Practice throughout the Company”.
The Respondent acknowledges that this was the practice in the Company and that it was in error in that regard. It advised the Court that it accepts that it infringed the Act and has taken steps to bring itself into line with its obligations under the Act. It submits that the finding of the Adjudication Officer is correct and that the award of compensation is just and reasonable in all the circumstances of the case.
The Law
In relevant part the Act states
- (2) 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,
( b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and
( c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.
(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.
(4) In this section “ normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.
3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.
(2) If the employee concerned's 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 regular 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 (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
(3) If the employee concerned's 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 purposes 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
( b ) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
Findings of the Court
The Court finds that the complaint is entitled to have the Sunday Allowance included in the calculation of his normal weekly pay for the purpose of determining his holiday pay entitlement. The Respondent failed to do so and accordingly the Court finds the complaint is well founded.
The Court notes that the Respondent has accepted its error and has taken steps to correct its practice that was unintentional but nevertheless unlawful.
Taking all matters into account the Court finds that the award of compensation made by the Adjudication Officer is fair and just and affirms the decision.
Determination
The Court affirms the decision of the Adjudication Officer. The appeal is not allowed.
Complaint No CA-00002887-003
The Complainant submits that the respondent miscalculated his normal weekly wages for the purpose of annual leave taken between 2 November 2015 and 8 November 2015. He submits that he is paid a premium payment for working on Sunday and that this should have been but was not included in the calculation of his normal weekly pay. He submits that this is contrary to section 20 of the Act. He stated he sent an email to the Respondent and received a response “This is custom and Practice throughout the Company”.
The Respondent acknowledges that this was the practice in the Company and that it was in error in that regard. It advised the Court that it accepts that it infringed the Act and has taken steps to bring itself into line with its obligations under the Act. It submits that the finding of the Adjudication Officer is correct and that the award of compensation is just and reasonable in all the circumstances of the case.
Determination
For the reasons set out in complaint no CA-00002887-002 above the Court affirms the decision of the Adjudication Officer. The Court so determines.
Complaint No CA CA-00007442-001
The Complainant submits that his normal weekly pay was not properly calculated by the Respondent in respect of his annual leave taken between 23 – 29 May 2016 and 12 – 25 September 2016. He submits that he was entitled to have an unsocial hours payment of €16.80 per day and a Sunday Premium of €41.28 included for the purpose of determining his normal weekly rate of pay for annual leave purposes.
As outlined above the calculation of Pay for annual leave is set out S.I. 475/1997 at Section 3 (1) where it states
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 Respondent acknowledged that it had not included these amounts in the Complainant’s normal weekly pay for the purposes of calculating his pay for annual leave purposes. It told the Court that this had been its general practice but that it had now corrected it.
The Court finds that the Adjudication Officer correctly found that the Respondent breached Section20 and S.I. 475/1997 in the calculation of pay for Annual Leave.
The adjudication officer decided as follows
I direct the Respondent to pay the Complainant –
€205.23 for annual leave taken between 23rd May 2016 to 29th May 2016 and
€158.88 in respect of annual leave taken from 12th September 2016 to 25th September 2016
This, subject to any lawful deduction, should be paid to the Complainant within 42 days of the date of this Decision.
The Complainant submits that the compensation awarded is too low and should be increased. The Respondent submits that it is fair and just and should be affirmed.
Findings of the Court
The Court also finds that the award made by the Adjudication Officer is fair and just in all the circumstances of the case.
Decisions
The decision of the Adjudication Officer is fair and just and is affirmed by the Court.
Case No CA-00007742-002
The Complainant submits that he was not paid his normal weekly pay in advance of the period of annual leave. The respondent acknowledges that infringement and restates the position set out above.
The adjudication officer decided as follows
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.
The Complainant appeals against the level of compensation awarded for similar reasons to those set out above.
Determination
For the reasons set out above the Court affirms the decision of that Adjudication Officer.
Signed on behalf of the Labour Court
Brendan Hayes
JD______________________
24 July 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.