ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006356

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts	CA-00008599-001	06/12/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008599-002	06/12/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00008599-003	06/12/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008599-004	06/12/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00008599-005	06/12/2016

Date of Adjudication Hearing: 25/05/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Location of Hearing: Room 4.01 Lansdowne House

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints/dispute to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute.

Background:

The Complainant was employed as Barman from 22^nd February 2016 to 10^th June 2016. He was paid €12.87 per hour and worked 37 hours per week. He has claimed that he was not compensated for Sunday working, holidays and Public Holidays, not paid for all hours worked and he was left with no option but to resign his position due to the conduct of his employer.

1) Payment of Wages Act CA 8599 003

Summary of Complainant’s Case:

He stated that he was contracted to work to midnight on Sundays, Mondays, Tuesdays Wednesdays and Fridays but usually worked to 1.00am. He was contracted to work to 1.00am but worked to 1.30 or 2.00 am . He also had to start 15 minutes early each day and had to do lodgements etc in his own time. He was paid for 557.5 hours and worked 671 hours. He has claimed 113.5 hours X €12.87 = €1,460.75,

Summary of Respondent’s Case:

He was contracted to work to midnight each night and 1.00am on Thursdays. He was also contracted to start 15 early each day. He agreed to this He didn’t seek payment for this. If he stayed on after the normal finishing time it was his responsibility. He was a club member, all members give of their time freely and this was his contribution. The claim is rejected.

Findings and Conclusions:

I find that in order to succeed in a claim under the Payment of Wages Act you must have a contractual entitlement to the monies claimed.

I note that the Complainant confirmed that he agreed to the contracted hours.

I note that the additional hours claimed he does not have a contractual entitled to them.

Therefore I find that these wages claimed were not properly payable.

Therefore I find that there were no illegal deductions from his wages.

I find that this complaint fails.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has not made any illegal deductions from the Complainant’s wages.

I have decided that this complainant fails.

2) Organisation of Working Time Act CA 8599 002/004/005

Summary of Complainant’s Case:

a)Sunday premium CA 5899-002

The Complainant stated that he worked all Sundays in his employment except April 10^th. He worked 11.45am to 1.45am. He did not get a premium for working Sundays.

b) Public Holidays CA 5899-004

He stated that he worked March 17^th 11.45 to midnight, March 28^th Easter Monday from 12.00 noon to 6.00pm; He didn’t work on the May Public Holiday.

He did not receive any compensation the Public Holidays.

c) Holidays CA 5899-005

He stated that he did not receive any holidays or holiday pay. He was paid for 557.5 hours of work and actually worked 671 hours. He was entitled to 8 % of 671 amounting to €690.96.

Summary of Respondent’s Case:

a)Sunday premium CA 5899-002

The Respondent didn’t want him to work Sundays. He wanted to work on Sundays and it was agreed that he would in order to increase his hours to 37 per week. He was not paid a premium. He was a club member also. Members give of their time freely, this was his contribution.

b)Public Holidays CA 5899-004

The Respondent stated that they prepared payments for him and advised that the monies were available for collection and they required him to return the Club keys. He did not collect his wages despite being advised on a number of times.

c) Holidays CA 5899-005

Findings and Conclusions:

a)Sunday premium CA 5899-002

Sec 14 (1) (b) of this Act states, “an employee who is required to work on a Sunday .. shall be compensated by otherwise increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances b) by increasing the employees’ rate of pay by such an amount that is reasonable, c) by granting an employee such paid time off as is reasonable, d) or by a combination of two or more of the mean referred to in the preceding paragraph”.

I find that the Complainant did not receive a premium for working Sundays.

I find that time and one quarter would be” reasonable” for this industry.

I find that he worked 14 Sundays at 11.25 net hours (11.45 – 12.00modnight less breaks) per Sunday.

I find that it would be “reasonable” to pay an additional €3.22 per hour.

Therefore I find that he should have been paid €3.22 X 11.25 hours X 14 Sundays = €507.15

b) Public Holidays CA 5899-004

Sec 21 (1) of this states “ an employee shall in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely (a) a paid day off on that day, (b) a paid day off within a month of that day, (c) an additional day of annual leave, (d) an additional day’s pay.

I find that the Complainant was entitled to the following

March 17^th 11.25 net hours X €12.87 = €144.78

March 28^th 5.5 net hours X €12.87 = €70.78

May Public Holiday I find that he was entitled to one fifth of a weeks pay in compensation amounting to €95.24

June Public Holiday, I note that he has not claimed this but was in employment at the time and was entitled to this, I find that he was entitled to one fifth of a weeks pay in compensation amounting to €95.24. Total amount due is €406.04

c) Holidays CA 5899-005

I note that he did not get holidays or holiday pay. I note that the Respondent accepts that he is owed for holidays but they were waiting for him to return keys and collect his wages.

I find that he is entitled to 8 % of hours worked, this amounts to 671 hours X 8 % = 53.7 hours X €12.87 = €691.12.

Decision:

Section 41 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.

I have decided that this complaint is well founded.

I order the Respondent to pay the Complainant the following for the economic loss

Sundays = €507.15, Public Holidays €406.04 and Holidays €691.12, a total of €1,604.31 less €150.00 received so balance due is €1,454.31.

This is to be paid within six weeks of the date below.

3) Industrial Relations Acts CA 8599 - 001

Summary of Complainant’s Case:

He stated that he had to leave his employment due to the conduct of an honourary committee member. He was subjected to bullying and harassment. He didn’t raise a grievance with h the Chairman as he believed that nothing would be done about it. There were constant problems with his hours of work, both starting and finishing times, non-payment for additional hours worked and having to use his own money for floats and change. He was then offered a revised contract of employment with less hours of work and a reduction in pay to €12.00 per hour. There was also a threat to his safety from one of the members. He resigned his position for all of these reasons. He has not worked since and has applied for about 25 jobs since his termination date.

Summary of Respondent’s Case:

They stated that he accepted the hours of work. It was his decision when he finished up at night time. He was not required to use his own money for floats. The Club members tried to deal with any float problems that he referred to. The Club takes bullying and harassment seriously. There is a policy that any complaints should be made in writing. This policy is posted up in the clubhouse. He never made a written complaint. On the night that he alleged that he was threatened at 1.30am he stayed in the clubhouse until 5.30am and left in an intoxicated condition. He should have called the Gardaí if he felt threatened. The club was experiencing significant financial problems and they had to cut their losses. He had been on probation and so was temporary. The committee decided to offer him a changed contract with a small reduction in the hourly rate and a roster on a 6 over 7 days. He declined this job offer so they decided to advertise the job. He resigned his position on his own accord

Findings and Conclusions:

I note that the Complainant advised the hearing that he did not raise a grievance with the Chairman as he believed that nothing would be done about it.

I note that the Labour Court in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”.

I note that the Complainant did not raise a grievance with his employer and so did not give them an opportunity to resolve this matter before taking the decision to resign his position.

According to the Labour Court decision above I should not insert myself into this dispute due to the fact that the Complainant did not formally raise a grievance with his employer and so failed to give them the opportunity to resolve his grievance.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that this complaint should fail for the above stated reasons.

Dated: 6^th June 2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Non payment of wages, Sunday premium, holidays and Public Holiday pay and alleged forced resignation