ADJ-00002470

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002470

Complaint for Resolution:  

Date of Adjudication Hearing: 14/12/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. 

Background

The Complainant was employed from 1^st July 2008 until the employment terminated on 30^th March 2016. The Complainant was paid €12.88 and hour and he worked 46 hours a week. The Complainant was issued with a written statement of his Terms and Conditions of Employment. The Complainant referred a complaint to the Workplace Relations Commission on 23^rd March 2016 in relation to an unlawful deduction from his wages effective from 1^st January 2015 and he is claiming payment of €3796.38 wages and annual leave of €624.68

Summary of Complainant’s Position.

The Complainant worked with the Respondent from 2008 as PRM Ramp Driver and in June 2015 he transferred as a Lopop Driver at Dublin Airport. He continued to be paid €12.88 an hour and he had a contract to work up to 42 hours a week. Overtime is paid at time plus a half. He worked a 42 hour contract until October 2015 when he signed a contract to work 46 hours a week. However he was not paid any overtime when he worked in excess of either 42 hours or 46 hours.

He worked a four on, two off, rostered 10 hour shifts resulting in him being rostered a total of 570 hours over 12 week period. This is an average of 47.5 hours a week.

There is an email from the Respondent confirmed that the Complainant worked 589.5 hours overtime in 2015. The Complainant was not paid overtime and he is claiming payment of €3796.38 wages. The same email also stated that this equates to 47 annual leave hours never paid and he is claiming payment of €605.36 (The complainant form states a claim of €624.68).

Summary of Respondent’s Position. 

The Complainant is employed on a 46 hour a week contract and is paid €12.88 an hour. He was issued with a revised Contract of Employment in November 2015 with hours up to 46 hours a week which was a change from his previous 40 hour Contract. These Contracts make no reference to payment of overtime. Therefore the Complainant does not have an entitlement to be paid overtime.

However the Respondent does pay overtime at a rate plus a half in circumstances where employees work over their rostered hours in a rolling 6 week period. In practice overtime is addressed on a biweekly basis i.e. an employee must work over their contracted hours over a two week period to become entitled to payment of overtime. The Respondent attached the timesheets of the Complainant and the Respondent stated these clearly show the Complainant never worked in excess of his contracted hours. Payslips were also provided.

The Respondent also argued that following the High Court Decision in Moran v HSE the complaint is statute barred as the complaint references the breach occurred in January 2015. 

Findings

Preliminary Issue – Time Limits.

Section 41 (6) of the Workplace Relations Act, 2015 provides that a complaint must be lodged with the WRC within the time period of 6 months from the date of the contravention alleged. Section 41(8) of the Act does allow for an extension of time by a further 6 months due to reasonable cause. The Complainant and SIPTU sought an extension of time and stated the reason for the delay was that the Complainant was not aware of the breach.

On this basis I do not give an extension of time as ignorance of the law is not accepted as being a cause to extend time. Therefore the period covered by this complaint is from 24^th September 2015 to 30^th March 2016 when the employment ended.

On the basis of the evidence and written submissions from both Parties I find as follows:

1. The Contracts of Employment are silent on the payment of overtime.

2. However it has been established that custom and practice was to pay overtime at time plus a half. However the Parties are in dispute with the Complainant stating that overtime was paid for hours worked in excess of 46 hours on a weekly basis with the Respondent stating that as the Complainant was paid biweekly that overtime was calculated on a biweekly basis.

3. The evidence from the timesheets and the payslips show the Complainant was paid on a biweekly basis for all hours worked in the previous 2 week period.

4. I note that both Parties have confirmed at the Hearing that the Complainant had been paid €682.64 in relation to annual leave due on termination of the employment and this is shown in the final payslip of 3rd April 2016.

5. I find there was no evidence presented to support the contention of the Complainant that overtime was paid on a weekly basis for all hours worked in excess of 46 hours a week.

DecisionCA-00003473

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare the complaint is not well founded.

Rosaleen Glackin 

Adjudication Officer 

Date:___02 March 2017___