ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00006536

Parties:

Complaints:

Date of Adjudication Hearing: 18th October 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly.

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015, Section 27 of the Organisation of Working Time Act 1997 and 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 by the Respondent from 1^st October 2015 to 8^th December 2016 and his weekly rate of pay was €648.00c, his normal working week was 40 hours, making his hourly pay rate €16.20c.

The Complainant had submitted that the Respondent was in breach of his rights under the Organisation of Working Time Act 1997 in the following respects and sections:

(a)    Daily Rest Periods in accordance with the provisions of Section 11 of the 1997 Act.

(b)   Rests & Intervals (Breaks) at Work in accordance with the provisions of Section 12 of the 1997 Act

(c)    Weekly Working Hours in accordance with the provisions of Section 15 of the 1997 Act.

(d)   Annual Leave in accordance with the provisions of Sections 19, 20 and 23 of the 1997 Act.

(e)    Public Holidays in accordance with the provisions of Sections 21 and 22 of the 1997 Act

The complaints were presented to the WRC on 16^th December 2016.

Preliminary Issues:                                                                                                                               Two preliminary issues arose in relation to the complaints as follows:

Time Limits: In accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 the normal relevant period under consideration for the purposes of the complaints under the 1997 Act is 6 months prior to the presentation of the complaints to the WRC.   As the complaints in the instant case were presented to the WRC on 16^th December 2017, that would make the normal relevant period from 16^th June 2016 to 8^th December 2016 (the date the employment terminated).   However the Complainant made representations that the delay in presenting the complaints at an earlier date in accordance with Section 41(8) of the Workplace Relations Act 2015 was “due to reasonable cause” which justified extending the normal 6 month period by a further 6 months as provided for in that subsection of the 2015 Act.

The Complainant said there were two reasons for the delay in processing his complaints under the 1997 Act.   He said that in the first instance he was trying to sort out the question of his outstanding holiday pay due with the Respondent and he had reason to believe the Respondent was going to pay him holiday pay due and it was only when it became obvious that that the Respondent was not going to pay him his holiday pay due that it became appropriate for him to refer the matter to the WRC.   Secondly, the Complainant said that he did not have the benefit of independent expert advice available to him to guide him on how to handle the matters.

Extending the matters complained of:   In addition to the 5 (five) matters listed above that were contained on the Complaint Form submitted the Complaint sought to extend the matters complained to include a complaint under Section 17 of the Organisation of Working Time Act 1997 in relation to ‘Provision of Information in Relation to Working Time’.

The Complainant said that in his Complaint Form he referred to the complaint area under the 1997 Act being ‘Hours of Work’.    

The Complainant said that his complaint refers to hours worked during his employment with the Respondent which includes complaints based on non provision of proper rests periods and daily rest period.   The Complainant submitted that it flows as a natural direct result of the amount of excessive hours he worked that his statutory entitlements in relation to Section 17 of the 1997 were not met.   He submitted that due to the excessive hours complained of by him and the general nature of his employment he was not afforded proper notice of working time information.

Substantitive Issues:

Summary of Complainant’s Case:

The Complaint said that he had not been afforded his entitlements in accordance with the provisions of the 1997 Act by the Respondent.   The Complainant made the following submissions in respect of his 5 complaints under 5 sections the 1997 Act.

(a)    Section 11: Daily Rest Periods:   The Complainant said that he was not afforded a rest period of 11 hours between finishing work one day and commencing work the following day.   The Complainant said that he worked 12 to 16 hours a day, with much of his time spent driving between locations.   He said that accordingly he was not afforded daily rest periods of “not less than 11 consecutive hours” as required by Section 11 of the 1997 Act.

(b)   Section 12: Rests & Intervals (Breaks) at Work:   The Complainant said that he was afforded no breaks at work and he further said that there was no process or procedure in place for the taking of breaks at work.   He said it simply was not possible for him to take breaks at work.

(c)    Section 15: Weekly Working Hours:   The Complainant said that he worked greatly in excess of 48 hours per week.   The Complainant submitted records of his weekly hours worked in his last 17 weeks worked for the Respondent, which showed his average weekly hours worked was 98 hours.

(d)   Sections 19, 20 and 23: Annual Leave:   The Complainant said that he did not receive his annual leave entitlement in accordance with his entitlements under the 1997 Act.   The Complainant said that in general he did not receive any pay in relation to any annual leave taken by him.   He said that in the (extended) annual period covered by the complaint he received 3 days paid annual leave.

(e)    Sections 21 and 22: Public Holidays:   The Complainant said that he did not receive his Public Holiday entitlements in accordance with the provisions of the 1997 Act.   He said that he did receive payment in relation to Christmas Day only.   He said that he received no entitlement in relation to any other Public Holiday.   He said that if he did not work on a Public Holiday he did not receive any pay for that day and that if he did work on a Public Holiday he did not receive any addition pay for that day.

The Complainant submitted that based on the foregoing it was clear that his complaints under the 1997 Act were well founded and that they should be upheld.

The Complainant said that his complaints under the 1997 Act are at the serious end of the scale and that the redress awarded should reflect that fact.

Summary of Respondent’s Case:

The Respondent was not present or represented at the Hearing and they sent no submissions.   However on the day of the Hearing the WRC received a letter from the Respondent’s Representative which stated:

“Dear Sirs,

We refer to previous correspondence.   We are instructed that (the named Respondent) the Respondent herein, ceased trading in May 2017 and the Company is in the process of being wound up”

Findings, Conclusions and Decisions:

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

Section 27 of the Organisation of Working Time Act 1997 requires that I make decisions in relation to the complainants in accordance with the redress provisions of the same Section of the 1997 Act.

The Respondent was not present or represented at the Hearing and sent no submissions accordingly I only have the evidence and submissions of the Complainant to rely upon in these matters.

Preliminary Issues:                                                                                                                          . Time Limits:   I am satisfied that the Complainant was trying to resolve the issue of unpaid holiday pay (both annual leave and public holidays) with the Respondent and that he was assured that the monies due to him would be paid and I am satisfied that this constituted “reasonable cause” in           accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 that caused the failure to present the complaints in relation to annual leave and public holidays and that justifies extending the normal 6 month period under consideration for the purpose of those elements of the complaints by a further 6 months to 16^th December 2015.   However, I do not accept that the same logic applies to the other elements of the complaint, namely Daily Rest Periods, Rests and intervals at Work (Breaks) and Weekly Working Hour as apart from the fact that there is no suggestion that those matters were being raised with the Respondent post the employment ending (or indeed during the employment) these issues were not capable of being resolved retrospectively.

Accordingly, I am not granting any extension in relation to these issues and the relevant period under consideration is from 16^th June 2016 to 16^th December 2016.

Extending the Matters Complained of:   I am not accepting the submissions of the Complainant in this respect.   There was nothing in the Complaint Form either in the parts filled in or in the ‘Specific Details or Statement’ section that could be said to relate to or imply that the Complainant had or wished to make a complaint under Section 17 of the 1997 Act in relation to ‘Provision of Information in Relation to Working Time’ thus I can have no valid grounds to extend or expand the matters complained of to include a complaint in relation to Section 17 of the Act and I will not be so doing.

Substantive Issues:                                                                                                                               . The Respondent was not present or represented at the Hearing and sent no submissions accordingly, I only have the evidence and submissions of the Complainant to rely upon in these matters and based on that uncontested submissions and evidence I must find and conclude that each of the 5 complaints under the Organisation of Working Time Act are well founded and they are all upheld.

I note that Article 11 of the Council Directive 2002/15/EC upon which the legislation is based states: “Member states shall lay down a system of penalties for breaches of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that these penalties are applied. The penalties thus provided shall be effective, proportional and dissuasive.”.   I am fully taking this into account in the redress awarded below.

Based on the foregoing findings the following are my decisions in relation to the five (5) separate complaints under the Organisation of Working Time Act 1997:

CA-00008831-001(a):   Daily Rest Periods in accordance with Section 11 of the 1997 Act:                   . Based on the uncontested evidence of the Complainant the complaint in relation to daily rest periods in accordance with the provisions of Section 11 of the 1997 Act is well founded and it is upheld by me.

In accordance with the provisions of Section 27 of the 1997 Act I declare that the complaint in relation to Daily Rest Periods in accordance with the provisions of Section 11 of the 1997 Act is well founded and is upheld and I require the Respondent to pay the Complainant compensation in the sum of €3,000.00c within 6 weeks of the date of this decision.

CA-00008831-001(b):   Rests & Intervals (Breaks) at Work in accordance with Section 12 of the 1997 Act:                                                                                                                                                                 . Based on the uncontested evidence of the Complaint the complaint in relation to rest and intervals (breaks) at work in accordance with Section 12 of the 1997 Act is well founded and it is upheld by me

In accordance with the provisions of Section 27 of the 1997 Act I declare that the complaint in relation to breaks at work in accordance with the provisions of Section 11 of the 1997 is well founded and is upheld and I require the Respondent to pay the Complainant compensation in the sum of €2,000.00c within 6 weeks of the date of this decision.

CA-00008831-001(c):   Weekly Working Hours in accordance with Section 15 of the 1997 Act:           . Based on the uncontested evidence of the Complainant the complaint in relation to weekly working hours is well founded and it is upheld by me.

I note with concern that the weekly working hours of the Complainant was 98 hours over 6 days a week, i.e. more than 16 hours per day.   I further note that a significant portion of the Complainant’s work involved driving on public roads and it is a matter of grave concern that a worker would be driving on public roads following such long working hours without breaks.

In accordance with the provision of Section 27 of the 1997 Act I declare that the complaint in relation to (maximum) weekly working hours in accordance with the provisions of Section 15 of the 1997 Act is well founded and is upheld and I require the Respondent to pay the Complainant compensation in the sum of €7,500.00c within 6 week of the date of this decision.

CA-00008831-001(d):   Annual Leave:                                                                                                              . Based on the uncontested evidence of the Complainant the complaint in relation to annual leave in accordance with Sections 19, 20 and 23 of the 1997 Act is well founded and it is upheld by me.   I note that in the relevant period under consideration for the purposes of the instant complaint the Complainant had accrued an entitlement to 23 days annual leave.   He confirmed that he had received 3 days paid annual leave in that period, leaving 20 days or 4 weeks due and unpaid to him.   This equates with the sum of €2,592.00c.

In accordance with the provision of Section 27 of the 1997 of the 1997 Act I declare that the complaint in relation to annual leave entitlements in accordance with the provisions of Sections 19, 20 and 23 of the 1997 Act is well founded and it upheld and I require the Respondent to pay the Complainant compensation in the sum of €5,200.00c within 6 weeks of the date of this decision.

CA-00008831-001(e): Public Holidays:                                                                                                             . Based on the uncontested evidence of the Complainant the complaint in relation to public holidays in accordance with Section 21 and 22 of the 1997 Act is well founded and it is upheld by me.   I note that there were two public holidays in the relevant period, i.e. first Monday in August and last Monday in October and this equates with the sum of €259.20c.

In accordance with the provisions of Section 27 of the 1997 Act I declare that the complaint in relation to public holiday entitlements in accordance with the provisions of Section 21 and 22 of the 1997 Act is well founded and it is upheld and I require the Respondent to pay the Complainant compensation in the sum of €500.00c within 6 weeks of the date of these decisions.

The total amount awarded to the Complainant for breach of his rights under the 1997 Act is €18,200.00c.

Dated: 28 November 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Key Words: (a) Daily Rest Periods, (b) Rests and Intervals at Work, (c) Weekly Working Hours,   .   .                    (d) Annual Leave and (c) Public Holidays.