ADJ-00007749

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 6 of the Payment of Wages Act, 1991

CA-00010400-001

24/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00010400-002

24/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00010400-003

24/03/2017

The Complainant contends that she was not notified of hours of work as provided for in Section 17 of the Organisation of Working Time Act 1997, that she was not given the provisions of Section 18 of the Act in relation to zero hours work practices.

The complaint under the Payment of Wages Act 1991 was withdrawn.

CA-00010400-002

The Complainant has been employed with the Respondent as a General Operator on the Production Line since 27^th January 2016.   It is submitted that during this time the Respondent failed to fulfil its obligations under Section 17 of the Act in relation to notification of starting and finishing times.   As per Section 24 (4) the obligation rests with the employer to provide necessary records to show that the requirements of the legislation are met.   The employer must notify the employee about starting and finishing times no later than 24 hours before the due start time.   The Complainant had to request a roster in May 2017.

CA-00010400-003

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 on her to do so.

It is submitted that the Complainant was required to make herself 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 €4,293.98 and is entitled to be compensated for her loss.

The Complainant was initially employed on a casual basis from January 2016. She was given more regular hours from October 2016, and in May 2017 was placed officially on roster.

The Respondent contends that on the Thursday of each week, the Complainant was notified of shifts for the following week, e.g. 3pm – 9.30pm or 3.pm to 11.00pm.   Because of the nature of the work (preparing school lunches), it was not always possible to predict the exact length of shifts.     Sometimes staff would be let home early if the work was not there, and sometimes requested to stay on if orders were bigger than expected.   It is argued that there is minor flexibility in hours, and that the provisions of the Organisation of Working Time Act 1997 in relation to zero hours work practices do not apply in this case.   The Complainant was not required to be available for work in circumstances where the principles of the Act in relation to zero hours applied.

CA-00010400-002     Organisation of Working Time Act 1997 (non notification of hours)

Section 17 of the Act regulates the provision of information in relation to working time:

“17. – (1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or as the case may be, the days or days concerned, of that week”.

I note and accept the evidence of the Respondent that the Complainant was notified of her shift times on the Thursday preceding each week. I do not find her complaint to be well founded.

CA-00010400-002   Organisation of Working Time Act 1997 (zero hours work practices)

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 note the differences in the rostered hours and worked hours and would make the observation that it is not good employment practice to ‘let staff go early’ if they expected to work the full rostered hours, however this practice does not constitute a breach of Section 18 of the Act.    I do not find the Complainant’s complaint to be well founded.