ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003294
Parties:
| Complainant | Respondent |
Anonymised Parties | A Delivery Driver | A Fast Food Restaurant |
Representatives |
| Declan J Gray of Declan J. Gray & Co. Chartered Accountants. |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-001 | 30/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-002 | 30/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-003 | 30/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00004920-004 | 30/05/2016 |
Date of Adjudication Hearing: 05/04/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Location of Hearing: Seven Oaks Hotel
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act, 1997 and Section 6 of the Payment of Wages Act, 1991 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
1: Summary of Complainant’s Case:
| ||
Act | Complaint/Dispute Reference No. | Nature of Complaint / Basic Arguments |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-001 | No Compensation for Sunday Work |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-002 | No Paid Holidays received. Holidays requested in Nov and Dec of 2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-003 | No Public Holidays received |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00004920-004 | No pay in lieu of Notice. |
2: Summary of Respondent’s Case:
CA-00004920-001 No Compensation for Sunday Work The Complainant received an Hourly Rate of € 9.25 per hour – this effectively represents a Premium of € 0.60 for Sunday Work –the minimum wage being, at the time, €8.65 per hour. CA-00004920-002 No Paid Holidays received. Holidays requested in Nov and Dec of 2015. In regard to Holiday pay for 2015 the Complainant is not due any Holiday pay for this year as he effectively took all holidays due to him.
As regards 2016 to the date of the ending of the employment a sum of €99.90 is due to the Complainant and will be paid. CA-00004920-003 No Public Holidays received The Complainant was not rostered for Mondays during 2015 and no Public Holiday entitlement is due for that year. As regards 2016 there is an entitlement to one public Holiday and a payment of € 27.75 is due to the Complainant. CA-00004920-004 No pay in lieu of Notice. The Complainant resigned voluntarily, without giving any notice and accordingly no notice pay is due.
|
3: Findings and Conclusions:
| ||
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-001 | No Compensation for Sunday Work |
It was not contested that the Complainant did do some Sunday work. The Hourly rate of € 9.25 was proposed by the Respondent as including a Sunday Premium of €0.60 per hour.
It is now settled Labour Court precedent that the Sunday Pay /Premium element in a Salary/Wage rate has to be clearly identified. The Authority would be DWT 15104 Tansey Transport Limited v Marek Rog. In this case it was stated that the Respondent “had not identified the proportion of that difference that constitutes the premium for working on Sunday”.
I have to find that the Respondent was in breach of the specified regulations here. The Sunday Premium was not clearly identified.
Accordingly I award a lump sum of €150 as Compensation for this breach of the rights of the Complainant.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-002 | No Paid Holidays received. Holidays requested in Nov and Dec of 2015 |
In the records presented /payroll for 2015 and 2016 it was impossible to establish if any Annual Leave was taken. A Handwritten roster produced by the Complainant indicated a very varying pattern of attendances.
I noted the willingness of the Respondent to pay for any outstanding holidays for 2016 – from 1st January 2016 to the date of the ending of the employment on the 4th March 2016.
As regards the claim for holidays for 2015 there was a major conflict of evidence here. The Respondents maintained that Holidays had been taken – the weekly payroll indicated a fixed payment made for every week from week no 17 to week no 52 during 2015. The very fluid nature of the work – the 15 hours per week – made the tracking of holidays almost impossible. The payment systems employed and the mixture of “Floats” and delivery commissions paid by customers to the individual drivers only added to the general confusion.
Accordingly, going on the basis of the bona fides of the parties I award a sum of 2 weeks pay €138.75 X2 = €277.50 holiday pay for 2015 to be added to the amount proposed by the Respondent as due for 2016 = € 99.90 giving a total payment before tax and charges of € 377.40 as a full and final settlement of all standard Holiday pay claims.
To be fair to the Respondent much of the ambiguity was inherited from the previous owner of the business prior to the TUPE.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-003 | No Public Holidays received |
Again the records presented showed a standard payment for each week (from 17 to 52) in 2015.
It was impossible to establish whether or not public holidays were in fact taken or compensated for.
The Respondent indicated that a liability for one day rises for 2016 – a payment of €27.75.
Regarding 2015 I , on the balance of probability and the oral evidence I award a sum of weeks payments = €138.75 to be added to the €27.75 acknowledged as due for 2106 – a total of €166.50 as a full and final settlement figure for the Public Holiday claim.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00004920-004 | No pay in lieu of Notice. |
The Complainant has already been awarded via ADJ-00002297 of the 1st July 2016 a sum of €2,000 for the ending of his employment.
The ADJ does not specify if this included a notice payment but referred to the payment as “Compensation” for the “breach” of employment rights.
On the basis of the evidence I did not feel an additional Notice payment, at this remove, was now warranted.
4: Decision:
Section 41 of the Workplace Relations Act 2015 and Section 27 of the Organisation of Working Time Act, 1997 and Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under the cited Acts.
Act | Complaint/Dispute Reference No. | Summary Decision /Ref Section 3 of this Adjudication above. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-001 | No Compensation for Sunday Work. Claim well founded - Award of €150 made in favour of Complainant |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-002 | No Paid Holidays received. Holidays requested in Nov and Dec of 2015 Claim well founded a “Full and Final settlement” award of € 377.40 made in favour of the Complainant. |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00004920-003 | No Public Holidays received Claim well founded a “Full and Final settlement” award of € 166.50 made in favour of the Complainant. |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00004920-004 | Reference made to ADJ – 00002297. Matter disposed off in this ADJ. No award made. |
Dated: 30th May 2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words: