ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004865
Parties:
| Complainant | Respondent |
Anonymised Parties | A Home Help | A Health Service Provider |
Complaints:
|
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00006790-001 | 05/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00006790-002 | 05/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00006790-003 | 05/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00006790-004 | 05/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00006790-005 | 05/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 |
CA-00006790-006 | 05/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 |
CA-00006790-007 | 05/09/2016 |
Date of Adjudication Hearing: 05/09/2017
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.
The Complainant's representative confirmed at the oral hearing on 5 September, 2017 that the following complaints were being withdrawn, namely:
- CA-00006790-002 – complaint in relation to a contravention of Section 14 of the Organisation of Working Time Act 1997 relating to payment of the Sunday Premium;
- CA-00006790-006 – complaint in relation to a contravention of the National Minimum Wage Act 2000; and
- CA-00006790-007 – complaint in relation to a contravention of the Protection of Employees (Part-Time Work) Act 2001.
Background:
The Complainant is employed by the Respondent as a Home Help on a Contract of Indefinite Duration. The Complainant claims that the Respondent has contravened the provisions of Sections 14 (Sunday premium), 15 (weekly working hours), 19 (annual leave) and 21 (public holidays) of the Organisation of Working Time Act 1997 in relation to her employment. The Complainant claims that the Respondent has contravened the provisions of Section 8 of the National Minimum Wage Act 2000 in relation to the payment of the national minimum rate of pay. The Complainant also claims that the Respondent has contravened the provisions of Section 9 of the Protection of Employees (Part-Time Work) Act 2001 in relation to her conditions of employment. |
Summary of Complainant’s Case:
CA-00006790-001 – Complaint under the Payment of Wages Act 1991 The Complainant is employed, pursuant to a contract of employment, as a Home Help with the Respondent having qualified in 2002 (FETAC Level 5). In or around 2002, the Complainant was employed by the Respondent to provide home help to a client, whose adult daughter DB has a learning disability and epilepsy. The Complainant’s client died within a couple of weeks and her sister (DB’s aunt) asked the Complainant to look after DB over the time of the funeral. Shortly afterwards, the Complainant was visited by a servant or agent of the Respondent, Ms. A, who asked the Complainant to continue caring for DB and that she would be paid for 20 hours per week. On or about the 14 October, 2003, the Complainant was issued with a Contract of Employment by the relevant Regional Health Board, employed as a Home Support Nurse on an “if and when required” basis, reporting to the Liaison Health Nurse. On or about the 16 January, 2007, the Complainant entered into another contract – i.e. a Contract of Indefinite Duration (Permanent Employees) with the Respondent as a Home Help. It was a term of this contract that the Complainant would be employed for 20 hours a week. The Complainant received payment for the said hours per week despite caring for client DB for very many more hours. The said contract made provision for hours to be calculated over a 13-week period and for an increase in hours. The said contract also provided for Saturday premium and Sunday/Public Holiday in accordance with collective agreement and time and a quarter for hours worked between 8 pm and 8 am. In or around 2011, another servant or agent of the Respondent, Ms. B, Liaison Nurse, visited the Complainant and advised her that DB would be placed in residential care from Monday to Sunday. However, the Complainant would be required to continue to care for DB from Saturday morning to Monday morning, public holidays and all holidays. The Complainant submits that, inexplicably, her remuneration for this was reduced to six hours per week although she claims that Ms. B stated that her hours would increase again. However, the first week that DB commenced her residential care, she was returned to the Complainant on Friday afternoon as the Centre does not open on Friday nights. The Complainant submits that she was assigned six hours’ home help for two other clients as some sort of compensation for this arrangement, which she did while DB was in residential care. However, she was still required to provide care to DB from Friday to Monday (in excess of 60 hours per week), in addition to public and other holidays, as well as providing accommodation and food for DB. On or about 10 February, 2014, the Complainant entered into a third contract as a Home Help with the Respondent, which contained the following terms:
In 2015, the Complainant contacted Ms. B who confirmed that she should have been receiving payment for more than six hours pay in respect of DB. She was advised to contact Mr. C, Head of Adult Disability. By letter dated 14 April, 2015 to Mr. C, the Complainant outlined her concerns in relation to the payment being received by her. The Complainant’s arrangement was confirmed by e-mail dated 23 April, 2015 from Ms. D, Administrator with the Respondent. By letter dated 25 June, 2015, Ms. D, Administrator, indicated for the first time that the Complainant was caring or DB pursuant to some arrangement between DB’s family and hers and denied a contractual relationship with the Respondent. The Complainant submits that, for avoidance of doubt, with the exception of the days over DB’s mother’s funeral in 2002, she did not enter into any agreement with any family member or any other party for the care of DB other than with the Respondent. The Complainant submits that she is not related to DB. It is submitted that the assertion contained in the said letter that the 6 hours pay she received per weekend was for support is entirely inconsistent with the Contracts of Employment issued to the complainant as detailed above. By letters dated 1September, 2015, 3 May, 2016 and 31 May, 2016, the Complainant’s former Solicitor sought to engage with the Respondent in relation to the Complainant’s pay but received no response other than acknowledgement letters dated 5 January, 2016 and 6 June, 2016. The Complainant has cared for DB every weekend, public holiday and holiday period since 2002 without break, respite or holiday, at enormous expense to her personal life and that of her family. The Complainant submits that the relevant reference period for the purposes of the claim under the Payment of Wages Act 1991 is from 15 February, 2016 to 15 August, 2016. The Complainant submits that during this time she worked 2,088 hours and should have received €28,567.00 pay. The Complainant in fact received payment of €4,536.00 and therefore seeks payment of €24.031.00 being the amount outstanding and owing to her. CA-00006790-003 – Complaint under the Organisation of Working Time Act 1997 The Complainant claims that during the relevant reference period that she also worked caring for DB for five public holidays and Good Friday and did not receive (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 or (d) an additional day’s pay (or any pay) contrary to Section 21 of the Organisation of Working Time Act 1997. CA-00006790-004 – Complaint under the Organisation of Working Time Act 1997 The Complainant claims that she has not received any paid holiday/annual leave entitlement since commencing her employment with the Respondent contrary to Section 19 of the Organisation of Working Time Act 1997 and she is seeking payment of 30 days’ annual leave which she claims could have fallen due for payment during the material reference period. CA-00006790-005 – Complaint under the Organisation of Working Time Act 1997 The Complainant claims that she was required to work in excess of 60 hours per week, which increases when there is a public holiday or other holiday, contrary to Section 15 of the Organisation of Working Time Act 1997. |
Summary of Respondent’s Case:
CA-00006790-001 – Complaint under the Payment of Wages Act 1991 The Respondent submits that the Complainant is employed as a Home Help/Home Support worker. In February, 2014, the Complainant was issued with an annualised hour’s contract following the implementation of a Labour Court Recommendation. The Complainant is guaranteed a minimum of 7.5 hours per week (based on 80% of the average hours worked by her for the period October, 2011 to March, 2012). However, the Complainant could be required to work up to 39 hours per week. The Respondent submits that having reviewed in detail the matter referred by the Complainant to the WRC, it has formed the opinion that this case is not an employment matter but rather a care issue. The Respondent submits that the Complainant was paid 20 hours per week home support in respect of client DB for the period 2002 to 2011 when client DB went into residential care. Client DB is in residential care from Monday to Friday and spends weekends with the Complainant in her home. The Complainant is paid as a Home Support to client DB in respect of Saturday and Sunday (i.e. 12 hours). The Respondent notes the Complainant’s contention that these hours should be increased but submits that it is not appropriate or indeed the Respondent’s policy that a home support worker/home help would apply for caring hours on behalf of a client but rather these hours are allocated to their clients by the Respondent. The Respondent submits that home support hours are allocated to DB in the same way as it allocates home support for numerous families throughout the country. The Respondent submits that the Complainant is paid at the appropriate rate of pay on its consolidated pay scales and is allocated annual leave based on worked hours. The Respondent submits that the issue in question in the present case is not an employment issue but rather an issue regarding the allocation of home support hours. Home support hours are allocated based on the need of the client and the Respondent submits that the 12 hours’ home help support allocated over a weekend to client DB would be deemed high support which in this case is contrary to the assessment of need. The Respondent submits that Home Helps are employees of the Respondent and as a staff member, the Complainant cannot choose who she provides care for, or indeed, the hours provided. The Respondent submits that it was confirmed to the Complainant, that it is the client/family of the client who applies for the home help hours and following assessment by the Public Health Nurse, hours are allocated and a home help assigned. The Respondent submits that the provision of home help hours for DB is somewhat different, while it provides home help hours, the Complainant is both the home help and carer in this case. The Complainant is currently paid 12 hours in respect of home help to DB. Following a recent assessment of client DB’s needs, it was deemed that DB requires support of 7 hours per week (i.e. only 1 hour per day assistance/support). However, the Respondent submits that it remains in discussions with the Complainant regarding this matter and are maintaining the 12 hours at weekends (Client DB is currently allocated 12 hours from Friday evening to Monday morning). The Respondent submits that the Complainant’ solicitor reiterated the Complainant’s position on 16 August, 2016 that his client was seeking at least 20 hours per week for all service users and confirmed DB is a permanent fixture at his client’s house every weekend. It was contended that the Complainant could not possibly care for DB on 7 hours per week. The Respondent replied on 28 August, 2016 confirming the Complainant’s Contract of Indefinite Duration is a minimum of 7.5 hours per week to 39 hours per week. In relation to the Complainant requesting specific hours for named clients, the Respondent submits that this is not an acceptable practice. It was confirmed to the Complainant that she is not being treated any differently than any home help employed by the Respondent. The Respondent is responsible for the review of the applicants care needs and allocation of hours. It is not the responsibility of the home help to apply for additional hours for clients. Furthermore, it was confirmed that if there is an issue of concern regarding hours, the home help should raise this issue in the first instance with the home help coordinator or Public Health Nurse. In addition, it was confirmed that the Respondent did not request the Complainant to provide weekend care for DB. The Respondent submits that it has formed the opinion that the Complainant appears to be significantly involved with DB and it is noted that she attends meetings with the residential care centre (that DB attends) in relation to DB’s care needs. The Respondent submits that this would indicate that a relationship other than client/home help exists. The Respondent submits that the situation which pertains in the present case is not an employment issue but rather a care matter and in view of this the most appropriate action may be to refer client DB’s case to its Disability Unit for discussion and agreement regarding the most appropriate weekend care plan. CA-00006790-003 – Complaint under the Organisation of Working Time Act 1997 The Respondent disputes the Complainant’s claim that there has been a contravention of Section 21 of the Organisation of Working Time Act 1997 in relation to her public holiday entitlements during the cognisable period. CA-00006790-004 – Complaint under the Organisation of Working Time Act 1997 The Respondent disputes the Complainant’s claim that there has been a contravention of Section 19 of the Organisation of Working Time Act 1997 in relation to her annual leave entitlements during the cognisable period. CA-00006790-005 – Complaint under the Organisation of Working Time Act 1997 The Respondent disputes the Complainant’s claim that there has been a contravention of Section 15 of the Organisation of Working Time Act 1997 in relation to the number of weekly hours that she was required to work during the cognisable period. The Respondent submits that the Complainant is required to work between 7.5 and 39 hours under the terms of her contract of employment. The Respondent submits that the Complainant did not work in excess of the statutorily permitted number of weekly hours during any week with in the cognisable period material to this complaint. |
Findings and Conclusions:
CA-00006790-001 – Complaint under the Payment of Wages Act 1991 The Law Section 1 of the Payment of Wages Act provides for the following definition of “wages”: “wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including— (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.” Section 5(1) of the Act provides: “(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.” Section 5(6) of the Act provides:— “(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.” The Complainant has claimed that she has not been paid by the Respondent for all of the hours worked during the material reference period in question contrary to the provisions of Section 5 of the Payment of Wages Act 1991. The instant claim was submitted to the Director General of the Workplace Relations Commission on 5 September, 2016 and therefore, only contraventions of the Act which may have occurred in the six-months preceding the referral, i.e. the period from 6 March, 2016 to 5 September, 2016 are cognisable for the purpose of obtaining redress. The Labour Court has held in the case of Foroige -v- Kieran O’Connell[1] that: “In Dunnes Stores (Cornelscourt) v Lacey and Nuala O’Brien [2005] IEHC 417, unreported Finnegan P., the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the claimant ….. Subsection (6)(a) of section 5 of the Act provides, in effect, that where the total amount of wages properly payable to an employee is not paid, the deficiency or non-payment is to be regarded as a deduction”. The Employment Appeals Tribunal held in the case of Sullivan -v- Department of Education[2] that: “The definition of ‘wages’ goes on to give examples of types of payments which can amount to ‘wages’ and states that the payments can amount to wages ‘whether payable under [his] contract of employment or otherwise ….’ Although in our view it is not simply a matter of what may have been agreed or arranged or indeed paid from the outset but, in the view of the Tribunal, all sums to which an employee is properly entitled”. Therefore, the first issue that I must decide is whether the claimed unlawful deduction of wages in respect of home help services provided for client DB during the cognisable period was in fact properly payable to the Complainant. It was common case that the Complainant is currently employed by the Respondent as a Home Help on a Contract of Indefinite Duration and that she is required to provide home support services to client DB as part of her duties. The key issue in dispute between the parties in relation to this issue is the precise number of hours per week that the Complainant actually provided for DB under the terms of her contract of employment during the cognisable period. Having regard to the evidence adduced, I am satisfied that the following facts have been established in relation to the matter:
The Complainant claims that she worked a total of 2,184 hours as a Home Help support for client DB during the cognisable period whereas the Respondent refutes this claim and contends that the Complainant only worked, and was paid for, a total of 444 hours in respect of client DB during this period. It should be noted that payment in respect of the hours which the Complainant worked in respect of clients SN and GR was not in dispute between the parties. The Respondent adduced evidence that home support hours are allocated based on the needs of the client and that 12-hours home help has been allocated in respect of client DB following a recent assessment of this client’s particular needs. The Respondent contends that the Complainant was paid for all hours worked in relation to client DB in terms of the discharge of her contractual duties during the cognisable period. The Respondent contends that there is a dual relationship between the Complainant and client DB in that the Complainant is both the home help and carer in this case. The Respondent accepts that Client DB spends weekends at the Complainant’s home. However, the Respondent contends that there is no contractual arrangement between the parties which require the Complainant to provide full-time care for Client DB at weekends. The Respondent contends that the Complainant appears to be significantly involved with client DB and that she attends meetings at DB’s residential care centre in relation to her care needs. The Respondent further contends that this would indicate that a relationship other than client/home help exists. The Complainant disputes the Respondent’s contention that she is related to Client DB or that she has entered any agreement with any family member or any other party for the care of DB other than the Respondent. Having regard to the totality of the evidence adduced, I have found the Respondent’s evidence on this matter to be more compelling and I cannot accept that the terms of the contractual relationship between the parties extends to the provision of full-time care for Client DB from Friday to Monday. I accept the Respondent’s evidence that the allocation of home support hours for Client DB has been determined in accordance with the normal assessment procedures. I find that the contractual arrangements between the parties apply only in relation to the provision by the Complainant of 12 hours’ home support for Client DB in the discharge of her duties as a Home Help. I have not been presented with any evidence from which I could reasonably conclude that the additional care which the Complainant provided for Client DB at weekends during the cognisable period was sanctioned by the Respondent in the discharge of her duties as Home Help under the terms of her contract of employment. In the circumstances, I find that the balance of the hours which the Complainant has claimed were payable in respect of services provided for client DB during the cognisable period was not “properly payable” under the terms of her contract of employment. Accordingly, I find that no deduction of pay has taken place within the meaning of the Payment of Wages Act during the cognisable period relevant to this complaint. CA-00006790-003 – Complaint under the Organisation of Working Time Act 1997 The next element of the complaint which I must decide relates to the Complainant’s claim that the Respondent has contravened the provisions of Section 21 of the Organisation of Working Time Act 1997 in relation to her public holiday entitlements. The Law In relation to public holiday entitlements, Sections 21 and 22 of the Organisation of Working Time Act 1997 provide as follows: “Entitlement in respect of Public holidays. 21(1) Subject to the provisions of this section, 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: Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.” Section 21(2) provides that an employee may, not later than 21 days before a public holiday, request an employer to determine which option applies under Section 20(1) and notify the employee within 14 days of the public holiday. Section 21(3) provides that if the employer fails to do so the employee is entitled to a paid day off on that day or an additional day’s pay if the proviso to Section 21(1) applies. Section 21(4) provides that the aforesaid provisions apply to part-time workers if they have worked at least 40 hours during the period of 5 weeks ending on the day before that public holiday. “22(1) The rate— (a) at which an employee is paid in respect of a day off under section 21, and (b) of an employee’s additional day’s pay under that section, shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section. (2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.” In the cognisable period covered by the claim (i.e. from 6 March, 2016 to 5 September, 2016) there were five public holidays, namely St. Patricks Day (which fell on a Thursday), Easter Monday, the first Monday in May, the first Monday in June and the first Monday in August. I am satisfied from the payroll records which were adduced in evidence that the Complainant had worked at least 40 hours during the period of 5 weeks ending on the day before each of the public holidays in question, and therefore she qualified for public holiday statutory entitlements under the Organisation of Working Time Act 1997. The Complainant claims that she did not receive her statutory entitlements as provided for in section 21(1) of the Act in relation to any of the aforementioned public holidays. The Respondent disputes the Complainant’s claim and contends that she has received her public holiday entitlements in accordance with the provisions of Section 21 of the Act. The Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations 2001 requires all employers to keep detailed records in relation to any additional day's pay referred to in section 21(1)(d) provided in each week to each employee concerned. Section 25(4) of the Act provides that the onus of proving, in proceedings before an Adjudication Officer or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer. In the instant case, the Respondent failed to adduce any records to confirm that the Complainant was in receipt of her statutory public holiday entitlements. In the circumstances, I find that the Respondent has failed to discharge the burden of proof under the Act that it has complied with the relevant provisions of the Act in relation to the Complainant’s public holiday entitlements during the cognisable period. Accordingly, I find that the Complainant did not receive her statutory public holiday entitlements contrary to section 21 of the Act. The next issue that arises relates to the relevant calculation of the Complainant’s entitlements in relation to the public holidays that occurred during the cognisable period. Section 22 of the Act makes supplemental provisions in relation to public holidays and provides that a day's pay is to be calculated in accordance with Statutory Regulations made for that purpose (S.I. 475 of 1997) entitled Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997. The Complainant’s contract of employment does not specify how her contracted hours are to be spread out over the working week. Having examined the monthly payment claim forms completed by the Complainant which were submitted in evidence for the relevant period in question, it is clear that she worked 18 hours per week which was spread out over five days in accordance with the following daily pattern:
The Complainant’s rate of pay was €14.91 per hour at the material time of this complaint. I will firstly deal with the calculation of the relevant rate in relation to the public holidays that fell on a Monday. I am satisfied that the Complainant’s pay is was calculated in accordance with Regulation 3(2) of the Regulations. Furthermore, I am satisfied that the Complainant is normally required to work “during any part of the day” when a public holiday falls on a Monday, and for this reason Regulation 5(1)(a), as opposed to 5(1)(b) (which averages out the day of the week in question for the last 13 weeks) applies for the purposes of calculating her “normal daily hours”. Regulation 5(1)(a) provides: “…the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday.” Therefore, some form of averaging exercise is required. In my view, an equitable outcome is achieved by applying the rationale set out by the Labour Court in the case of Revenue Commissioners -v- Gerard Doyle[3] and taking an average daily rate for public holidays based upon the Complainant’s contractual arrangement to work 18 hours per week over five days i.e. one fifth of her weekly hours = 3.6 hours. Accordingly, I find that the Complainant is entitled to a payment of 3.6 hours in respect of each of the four public holidays that fell on a Monday during the cognisable period. In relation to the public holiday on St. Patrick’s Day, the 17 March fell on a Thursday in 2016. Regulation 5(2) provides that if the public holiday falls on a day on which the employee does not normally work, the appropriate rate is 1/5 of a week’s pay. I am satisfied from the evidence adduced that the Complainant did not work on this date and accordingly, I find that her public holiday entitlement in such circumstances is 1/5 of a week’s pay, which equates to 3.6 hours pay.
CA-00006790-004 – Complaint under the Organisation of Working Time Act 1997 The next element of the complaint which I must decide relates to the Complainant’s claim that the Respondent has contravened the provisions of Section 19 of the Organisation of Working Time Act 1997 in relation to her annual leave entitlements. The Law Section 19 of the Act provides: - “19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as "annual leave") equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.” The Complainant claims that she has not received any paid holiday/annual leave entitlement since commencing her employment with the Respondent contrary to Section 19 of the Organisation of Working Time Act 1997. The Respondent disputes the Complainant’s claim and contends that she has received her annual leave entitlements in accordance with the relevant requirements under of Section 19 of the Act. The cognisable period for the purpose of this complaint is from 6 March, 2016 to 5 September, 2016. The leave year commencing 1 April, 2015 and ending on 31March, 2016 expired in that period. The Labour Court held in the case of Blue Thunder Fast Foods Limited t/a Blue Thunder -v- Joanna Oleniacz[4] that: “The decision of the High Court in Royal Liver Assurance Limited -v- Macken and ors, Unreported, High Court, Lavan J, 15th November 2002, makes it clear that where a workers does not receive his or her full entitlement to annual leave a contravention of the Act crystallises at the end of the statutory leave year. It is on that date that a cause of action accrues in respect of the full leave year in issue. It follows that the Claimant can maintain a claim in respect of any shortfall in her full entitlement to annual leave in the leave year ending on 31st March 2014.” I am satisfied that the instant complaint relates to a claim in respect of any shortfall in the Complainant’s annual leave entitlements for the leave year ending on 31 March, 2016. The Complainant’s contract of employment provides that the annual leave entitlement for her grade based on standard/core hours of attendance is 23 days per annum. Having regard to the evidence adduced, I am satisfied that the Complainant worked 18 hours per week during the leave year in question. Accordingly, I find that the Complainant had accrued an entitlement to annual leave during the relevant leave year (which would have equated to 74.90 hours (i.e. 8% of 936 hours worked) in accordance with the provisions of Section 19(1)(c) of the Act. The Respondent failed to adduce any records to confirm that the Complainant was in receipt of her statutory annual leave entitlements during this period. In the circumstances, I find that the Respondent has failed to discharge the burden of proof under the Act that it has complied with the relevant provisions of the Act in relation to the Complainant’s annual leave entitlements during the relevant period. In the circumstances, I find that the Complainant did not receive her annual leave entitlements during the cognisable period contrary to Section 19 of the Act. Accordingly, I find that the Respondent has contravened Section 19 of the Act in relation to the Complainant.
CA-00006790-005 – Complaint under the Organisation of Working Time Act 1997 The final element of the complaint which I must decide relates to the Complainant’s claim that the Respondent has contravened the provisions of Section 15 of the Organisation of Working Time Act 1997 in relation to the number of weekly hours that she was expected to work. The Law Section 15 of the Organisation of Working Time Act, 1997 provides: “15— (1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed— (a) 4 months, or (b) 6 months— (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.” The Complainant claims that she was required to work in excess of 60 hours per week, which increases when there is a public holiday or other holiday, contrary to Section 15 of the Organisation of Working Time Act 1997. The Respondent disputes this claim and contends that the Complainant did not work in excess of the statutorily permitted number of weekly hours during any week with in the cognisable period material to this complaint. As I have already found above, I am satisfied that the Complainant worked 18 per week during the cognisable period in accordance with the terms of her contract of employment with the Respondent. I have not been presented with any evidence from which I could reasonably conclude that the Complainant was required to work in excess of the statutorily permitted number of hours in any week during the cognisable period. Accordingly, I find that the Respondent did not contravene the provision of Section 15 of the Act in relation to the Complainant’s weekly working hours. |
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.
CA-00006790-001 – Complaint under the Payment of Wages Act 1991 I find that the Respondent did not make unlawful deductions from the Complainant’s wages contrary to Section 5 of the Payment of Wages Act 1991. Accordingly, I find that the Complainant’s claim is not well founded and must fail. CA-00006790-002 – Complaint under the Organisation of Working Time Act 1997 As stated above, the complaint in relation to the alleged contravention of Section 14 of the Act was withdrawn by the Complainant at the oral hearing. CA-00006790-003 – Complaint under the Organisation of Working Time Act 1997 In accordance with the provisions of Section 27 of the Act, I declare that the complaint is well founded and that the Respondent has contravened the Complainant’s public holiday entitlements contrary to Section 21 of the Act. I order the Respondent to pay the Complainant the sum of €268.38 for the economic loss of not receiving public holiday entitlements in respect of the breach of Section 21, plus the sum of €500 in compensation for this breach. CA-00006790-004 – Complaint under the Organisation of Working Time Act 1997 In accordance with the provisions of Section 27 of the Act, I declare that the complaint is well founded and that the Respondent has contravened the Complainant’s annual leave entitlements contrary to Section 19 of the Act. I order the Respondent to pay the Complainant the sum of €3,500 in compensation for this breach of the Act. CA-00006790-005 – Complaint under the Organisation of Working Time Act 1997 In accordance with the provisions of Section 27 of the Act, I declare that the complaint is well not founded and that the Respondent did not contravene the provisions of Section 15 of the Act in relation to the Complainant’s weekly working hours. CA-00006790-006 – Complaint under Section 24 of the National Minimum Wage Act 2000 As stated above, the complaint in relation to the alleged contravention of the National Minimum Wage Act 2000 was withdrawn by the Complainant at the oral hearing. CA-00006790-007 – Complaint under Section 16 of the Protection of Employees (Part-Time Work) Act 2001 As stated above, the complaint in relation to the alleged contravention of the Protection of Employees (Part-Time Work) Act 2001 was withdrawn by the Complainant at the oral hearing. |
Dated: 29 November 2017
Key Words:
Organisation of Working Time Act 1997 – Section 14 – Sunday premium – Section 15 – Weekly working hours – Section 19 – Annual Leave – Section 21 – Public holidays |
[1] PWD178
[2] [1998] 9 E.L.R. 217
[3] DWT0625
[4] DWT15124