DWT1719

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.

On 26 January 2015 the complainant lodged a series of complaints with the Workplace Relations Commission under the Payment of Wages Act 1991. The Complaint and the Respondent were given an opportunity to present supporting evidence in respect of the claims on 15 June 2015. The Adjudication Officer issued his decision in respect of each complaint on 12 February 2016. The Complainant appealed against decisions of the Adjudication Officer on the 23rd of March 2016.

The Court finally heard the appeal on 7 April 2017.

The Complaints

Complaint ref r-15082-pw-15/DI

The Complainant submits that he was on sick leave that continued from 2013 into 2014. He submits that as he was absent in each two calendar years he is entitled to three weeks’ pay in respect of each year in line with the terms of his contract of employment as altered by the Employment Regulation Order in force at the time.

The Respondent submits that it has no information regarding the operation of the scheme. It took over the company from its previous owners and records transferred do not allow it address the claim with authority.

Finding of the Court

The Complainant’s contract of employment provides

(e) The Sick Pay scheme will apply on a calendar year basis, either from 1st January to 31st December or in line with the holiday year as it applies in each company.

No contractual or other basis for the respondent’s decision not to pay the complainant three weeks’ pay in both 2013 and 2014 arising from one continuous period of illness was opened to the Court. On the face of the wording of the terms of the scheme, which are part of the Complainant’s contract of employment, the Court finds that the complaint is well founded.

This finding is in line with the finding of the Adjudication Officer.

Determination

The Complaint is well founded. The Court orders the respondent to pay the Complainant the balance of his sick pay entitlement for the calendar years 2013 and 2014.

The Court so determines.

Complaint ref r-15083-pw-15/DI

The Complainant’s contractual hours are 39 per week. During the financial crisis the Company experienced trading difficulties. This required it to reduce allocated hours to some staff and lay other staff off completely. The Trade Union that represents staff concluded an agreement with the Company to provide compensatory hours in certain circumstances to staff whose hours were reduced below an agreed level. The Complainant submits that he was not allocated his full hours under this agreement and seeks to have them restored to him. He submits that in the 2 week period 25 November 2014 to 7 December 2014 he had an entitlement under the agreement to 78 hours but was only rostered for 62 hours. He cited other examples in his submission to the Court.

The Respondent submits that the MUT agreement was concluded with SIPTU on behalf of its members in order to balance the allocation of hours amongst them. It submits that in order to benefit under the Agreement all its terms must be complied with. In this case the Complainant failed to make himself available for hours offered and lost his entitlement to MUT hours.

Finding of the Court

The Court notes that the MUT Agreement is a collective agreement between SIPTU and the Company. It applies to SIPTU members and none others. The Complainant in related proceedings was at pains to point out that he was not subject to other collective agreements, for instance on the timing of holiday pay, as he was not a member of SIPTU and is not encompassed by such collective agreements. He now seeks to rely on one such collective agreement which does not apply to him.

In such circumstances the Court finds that the complaint is misconceived. The Complainant is not a member of SIPTU and does not come within the scope of the Agreement.

Determination

The Complaint is not well founded. The decision of the Adjudication Officer is set aside. The Court so determines.

Complaint ref r-15085-pw-15/DI Complaint ref r-15086-pw-15/DI Complaint ref r-15087-pw-15/DI

These complaints all arise under the same MUT agreement that the Court has already decided does not apply to the Complainant. Accordingly the Court finds that these claims are not well founded Determination

The complaints are not well founded.

Complaint ref R-153088 regarding various complaints under the Organisation of Working Time Act 1997.

Complaint Under Section 17

The Complainant submits that on 7 occasions in a two month period he was not provided with 24 hours prior notice of his roster. He submits that this infringes section 17 of the Act.

The respondent told the Court that it was not in a position to contradict the evidence of the Complainant as its records were incomplete having taken over another company whose records were not fully transferred to it.

Findings

On the uncontested evidence of the Complainant the Court finds that the complaint is well founded.

The Court finds that compensation in the sum of €350 is fair and just in all of the circumstances of this case.

Determination

The Complaint is well founded. The decision of the adjudication officer is set aside. The respondent is ordered to pay the Complainant compensation in the sum of € 350

Complaint under S20 of the Act.

The Complainant submits that he applied for annual leave on 14 November 2014 the Complainant applied to take annual leave from 25 November to 29 November 2014. This request was refused on the grounds that the complainant was on sick leave on 14 november without any indication that he would be fit to return to work on 25 November.

He again applied for annual leave from 22 to 26 December 2014. This request was refused on the grounds that other staff had applied earlier and there was no capacity to grant the complainant leave at that time.

The Court was told the Complainant had been on long term sick leave from 1 April 2013 until 24 November 2014.

The Complainant submits that the Respondent’s refusal to grant him the leave he sought infringes s20 of the Act.

The Respondent submits that the Complainant had made the first request while on sick leave and was accordingly properly refused as it had not been notified that he was fit to return to work. It submits that it refused the second application as it required him to cover the Christmas period as other staff had been granted leave for that period at an earlier date.

Findings of the Court

The Court finds that the Respondent is entitled to schedule annual leave provided it takes into account the need for the employee to reconcile work and family responsibilities and the opportunities for rest and recreation available to the employee.

While the Complainant in his submissions to the Court refers to his request for leave and the Respondent’s refusal he makes no reference to the effect of the Respondent’s decision to refuse his request on his need to reconcile work and family responsibilities and or his need for rest and recreation. Accordingly the Court has no evidence that the Respondent failed to take such issues into consideration when deciding to refuse the requested leave.

Accordingly the Court can find no basis upon which it can uphold the complaint before it.

Determination

The Complaint is not well founded. The appeal is dismissed.

The second aspect of this complaint relates to the Complainant’s annual leave that he took between 2 and 15 February 2015.

The Complainant submits he was not paid for his annual leave in advance as required by s20 of the Act.

The Respondent admits that it did not pay the Complainant in advance but submits this was an oversight.

Findings

The Court finds that the Complainant is, as a matter of law, entitled to payment in advance of his annual leave. The Respondent failed to meet its obligations in this regard.

The Court notes the Complainant was belatedly paid for the impugned leave. Accordingly the sole issue before it relates to the infringement of the provision and the complainant’s entitlement under the Act. The Court also notes that there is an agreement in place in the Company with its staff, concluded with their trade union, that pay will be paid on a fortnightly cycle whether on holidays or not. This arrangement was introduced to avoid staff having a long wait for wages after they returned from annual leave. The Complainant is not a member of the Union and does not come within the scope of the agreement.

Taking all circumstances into consideration the Court finds that the award of €100 made by the Adjudication Officer is not sufficient. It doubles that award.

Determination

The Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €200.

Complaint under s26 of the Act

The Complainant submits that he was penalised by being laid off from work in retaliation for making a formal complaint of victimisation to his manager on 29 December 2014. He submits that he was suspended from work without pay from 31 December 2014 until 21 January 2015. He relies on s26 of the Act which states

26.—(1) An employer shall not penalise an employee for having in good faith opposed by lawful means an act which is unlawful under this Act.

(2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

He submits that he had repeatedly not been given 24 hours notice of his roster, that this amounts to an infringement of his rights under the Act and that he was penalised because he refused to co-operate with an infringement of the Act of 1997.

The Court has examined the referenced email relied on by the Complainant.

In that the Complainant states “In my opinion the employer G4S company penalizes me because I took legal steps against the Company.” Otherwise the email recounts occasions on which the central control unit contacted him at short notice asking him to cover a duty that had become available. He refused to undertake such duties and so advised the control operator. He said that he was put under pressure to do the duty and threatened with being reported to the HR department.

He submits that he was not assigned work in retaliation for this complaint and by extension for refusing to co-operate with an infringement of the 1997 Act.

The Respondent submits that it was operating under pressure and trying at short notice to allocate hours to staff as they became available. It submits that the Complainant was allocated a fair proportion of hours in line with other staff. It denies penalising the Complainant.

Findings of the Court

The Court has examined the extensive file of emails submitted to it by both sides. The Court finds that there was an ongoing dispute between the Complainant and the Respondent regarding his hours allocation and the nature of the contact the Respondent was making with him. In one email dated 8 January 2015 the Complainant states

If a company G4S wants me to be available by telephone and waited for a call from the company and that I always be ready to pick up the phone, please enter into a contract with me with a detailed definition of the days and times I have a duty to wait on the phone for a work offer.

I assure you that in the above mentioned contract at the appointed time I wil be exclusively available for the company. I will not sleep, I will not lead private conversations on the phone, I will not go to my swimming pool or even take a shower. Also, I will not drive a car. I wll also take care that my phone is always charged and I will have a second backup device in case of emergency.

It is clear from this exchange that the Complainant did not wish to be contacted at short notice or on his private phone. However the Court accepts the Respondent’s submissions that it was going through a very difficult time and was trying, as best it could, allocate available hours fairly. To do this it was contacting staff as hours became available and offering them, sometimes at short notice.

The Complainant sought to be allocated his fair share of hours but not to be contacted outside normal hours or at short notice. This placed the Company in an impossible position.

However the Court also notes that the Complainant was paid for all of his hours entitlement in the relevant period and suffered no loss relative to other members of staff. On some occasions he was left short of hours but when he drew this to the Respondent’s attention the shortfall was made good.

In those circumstances the Court finds that the complaint the the Respondent infringed s26 of the Act is not well founded and dismisses the appeal.

Determination

The complaint is not well founded. The appeal is dismissed.

Signed on behalf of the Labour Court



Brendan Hayes
JD______________________
24 July 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.