ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003766

Complaints for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00005548-001	28/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00005548-002	28/06/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00005548-003	28/06/2016

Date of Adjudication Hearing: 14th February & 28/03/2017

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 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.

Background:

The Complainant was employed as a Shop Manger from 16^th July 2004 to 7^th October 2016. He was paid €31,746 per annum. He has claimed that he was underpaid for hours worked and his holiday pay was incorrectly calculated.

The complaint ADJ 7248 was withdrawn.

1) Payment of Wages Act 1991 CA 5548 – 001

Summary of Complainant’s Case:

The Complainant’s hours of work were 9.30am to 6.00pm over 5 days per week. He was unable to take his lunch breaks and so he worked 42.5 hours per week but was only paid for 32.5 hours. He has claimed 10 hours unpaid wages per week during the reckonable period. His colleagues were paid for a 37.5 hour week. By letter dated 11^th March 2016 the Respondent informed him that his contracted hours would increase to 37.5 hours per week effective 16^th March 2016. His hourly rate remained at €16.28 per hour.

He has claimed 10 hours X €16.28 X 26 weeks = €4,232.80.

Summary of Respondent’s Case:

His hours of work as at February 2016 were 37.5 hours per week at €16.28 per hour. He agreed to move from 32.5 hours per week to 37.5 hours. This was confirmed in writing. His revised contract stated that “payment will not be made for any additional hours worked but time off in lieu may be granted by agreement with your line manager”.

He was out sick from 16^th May to 27^th July 2016.

This complaint is rejected.

Findings and Conclusions:

This complaint was presented to the Commission on 28^th June 2016 so the period that may be investigated is 29^th December 2015 to 28th June 2016, a period of 26 weeks.

In the allowable period I note that from 29^th December 2015 to 1^st February 2016 his contract provided for 32.5 hours per week.

I note that he agreed to the increased hours of 37.5 hours per week from 1^st February 2016.

I note the conflict of evidence regarding the taking of breaks and payment for additional hours of work.

I find that in order to succeed with a complaint under the Payment of Ages Act the Complainant must establish a contractual entitlement to the monies claimed.

I find that he was paid for the contracted hours of 32.5 per week up to 1st February 2016 and also he was paid the revised contracted hours of 37.5 hours per week from 1^st February 2016.

I also note that his contract states “You may be required to additional hours from time to time to meet the needs of the position. Payment will not be made for additional hours worked but time off in lieu may be granted by agreement with your line manager”.

Therefore I find that he was paid as per his contract of employment.

I find that he was not entitled to be paid for any extra hours which were to be remunerated through time in lieu.

I find that he was the manager with sole responsibility for the hours worked.

I find that he has not established a contractual entitlement to the hours claimed.

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 fails.

2) Organisation of Working Time Act CA 5548- 002/003

Summary of Complainant’s Case:

Sec 3(2) does not apply as his work is not capable of being self-regulated. His hours were dictated by the needs of the shop and its opening hours. It was not possible to avail of rest periods.

1)Breaks

He stated that he did not get breaks. This was due to the demands of the job he was unable to take breaks otherwise the work would pile up and the shop would become unmanageable. The Respondent did not keep records of hours worked and breaks taken. Therefore he is relying upon Sec 25(4)

2) Holidays

His holiday pay should be based on 42.5 hours per week not 32.5 or 37.5 hours. He had therefore an annual entitlement to 27 days holidays, not 23.

He was due 19 days holidays at the cessation of his employment. He took 10 days in lieu of notice. The Respondent deducted holiday entitlement for not giving notice. There is no permission in the Act for an employer to deprive an employee of holiday pay accrued in accordance with contract and statute. Holidays at cessation, this was withdrawn.

Summary of Respondent’s Case:

1)Breaks

The Respondent stated that Sec 3 (2) (c) Non Application of Act applies in this case. The Complainant was manager of the shop; he determined his own breaks and that of his team. He did not have direct control of his area manager who made very few visits to the store during the year. He has Community Enterprise workers to assist him. Therefore he had full control of all hours worked.

2) Holidays

He was entitled to 23 days in the year. His contract provided for 32.5 hours and laterally 37.5 hours per week. There is no basis to increase the holiday entitlement as claimed because he controlled his hours.

Holidays at cessation of employment: He was paid 23 days holidays and a payslip was produced in support.

Findings and Conclusions:

1)Breaks

Sec 3 (2) (c) Non Application of Act

Subsection 2) states, “Subject to subsection (4) Part II shall not apply to c) A person the duration of whose working time (saving any minimum period of such time, that is stipulated by the employer) is determined by himself or herself, whether or not provision for the making of such determination by that person is made by his or her contract of employment”.

I have decided that the Complainant determined his own working hour. I find that he was shop manager. He determined his hours based on the needs of the business. He advised the hearing that he decided to work his breaks otherwise there would be a pile up.

I note the Respondent stated that based on the size the store and the volume of donations there was no reason for him to have to work his breaks. The Respondent advised the hearing that the area Manager visited the store about every six months.

Therefore I have decided that Sec 3 (2) (c) Non Application of Act applies in respect of the complaint on breaks.

2) Holidays

I have found that the Complainant determined his own hours.

I note that his contract of employment did not provide for payment in respect of additional hours worked.

I find that he had an entitlement to 23 days holidays in the year.

I find that he received his full holiday entitlement.

Holidays on cessation of employment.

I note that the Respondent produced evidence of payment of 23 days and that the Complainant withdrew that part of the complaint.

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 the complaints were not well founded and that they fail.

Dated: 16/06/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

ADJ-00003766

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Complaints for Resolution:

Procedure:

Background:

The Complainant was employed as a Shop Manger from 16th July 2004 to 7th October 2016. He was paid €31,746 per annum. He has claimed that he was underpaid for hours worked and his holiday pay was incorrectly calculated.

The complaint ADJ 7248 was withdrawn.

1) Payment of Wages Act 1991 CA 5548 – 001

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

2) Organisation of Working Time Act CA 5548- 002/003

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

1)Breaks

Sec 3 (2) (c) Non Application of Act

Therefore I have decided that Sec 3 (2) (c) Non Application of Act applies in respect of the complaint on breaks.

Decision:

The Complainant was employed as a Shop Manger from 16^th July 2004 to 7^th October 2016. He was paid €31,746 per annum. He has claimed that he was underpaid for hours worked and his holiday pay was incorrectly calculated.