Complainant

Respondent

Parties

An employee

A Service Provider

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-00010399-001

24/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00010399-002

24/03/2017

The Complainant submitted two complaints: (1) that he was not given the provisions of Section 18 of the Organisation of Working Time Act 1997 in relation to zero hours working practices and (2) that he was paid less than the amount of wages properly payable to him.

The Complainant is employed by the Respondent from 4^th September 2012. His initial employment was as a Driver on a 39 hour a week contract.   He is currently employed as a General Operative.

Claim under the Organisation of Working Time Act

It is contended that the Respondent has breached the terms of Section 18 of the Organisation of Working Time Act 1997.   Section 18 provides “This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week –

(a)    A certain number of hours (“the contract hours” or

(b)    As and when the employer requires him or her to do so, or

(c)     Both a certain number of hours and otherwise as and when the employer requires him or her to do so.

It is submitted that the Complainant was required to make himself available for “1.5 hours each way” (at the beginning and end of each shift.     It is contended that having regard to the provisions of the Act, the Complainant suffered a loss of €4,462.75 and is entitled to be compensated for his loss.  

Claim under the Payment of Wages Act 1991

The Complainant started his employment as a Driver in September 2012. In January 2013 he was transferred to the Production Line after his driving route was cancelled.   In September 2014 he was transferred again to be a Driver with full restoration of his rate.   In September 2015 his route was cancelled again and he eventually was again transferred to Production Line.   It is contended that the loss in the Complainant’s pay should be restored.

The Respondent argues that Section 18 of the Organisation of Working Time Act 1997 does not apply.     It is also argued that due to the changes in business demands it was not possible for the Complainant to continue in that role.   The Complainant stated in 2013 that he would be interested in moving to a role in the Production Line in 2013 (signed document submitted). Thereafter he was employed on the same basis as employees on the Production line.   It is argued that there was no deduction from wages under the Act or otherwise.

CA-000103991-001 Organisation of Working Time Act 1997

Section 18 of the Act provides:

“18. – (1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week –

(a)    A certain number of hours (“the contract hours”), or

(b)    As and when the employer requires him or her to do so, or

(c)     Both a certain number of hours and otherwise as and when the employer requires him or her to do so,

and the said requirement is not one that is held to arise by virtue only of the fact, if such be the case, of the employer having engaged the employee to do work of a casual nature for him or her on occasions prior to the said week…

(2) if the employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1) –

(a) in a case falling within paragraph (a) of that subsection, at least 25 per cent of the contract hours, or

(b) in a case falling within paragraph (b) or (c) of that subsection where work of a type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent of the hours for which such work has been done in that week,

Then the employee shall, subject to the provisions of this section, be entitled …”.

It is well established that the “zero hours” provision of the Act is designed to compensate employees who have to make themselves available for work and getting little or no work in the week in which they are required to be available. In this instant case, this is clearly not the case.   A plain reading of this section of the Act indicates that if an employer does not require an employee to work at least 25 per cent of contracted hours then the employee must be compensated.   I find no evidence that the Respondent in this case failed to provide work for the Complainant for less than 25 per cent of contracted hours.   I do not uphold his complaint.

In the hearing there was a reference to not receiving notification of hours. I am satisfied that the provisions of Section 17 of the Act have applied, in that the Complainant’s general hours of work are contained in his contract of employment and his hours are notified to him in advance of his shifts.

CA-00010399-02 Payment of Wages Act 1991

Section 5 of the Act regulates deductions from employees’ wages.   Section 5 (6) provides where the total amount of wages is less than the total amount properly payable then that deficit shall be regarded as a deduction. While the Complainant is obviously dissatisfied at his change in category, and the resultant change in remuneration, I note that his wages are now that of a member of the Production Line, and for which he receives wages “properly payable”.       I do not find that the Respondent has made any unlawful deductions from the Complainant’s wages, and his complaint is therefore not well founded.