Complainant

Respondent

Anonymised Parties

An Employee

A Service   Provider

Representatives

Arek Muszynski             SIPTU                

John Kane                   SIPTU 

John Barry Management Support    Services (Ireland) Ltd                        

Elaine Ryan, 

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-00010396-001

24/03/2017

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

CA-00010396-002

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The complaint under the Payment of Wages Act 1991 was   withdrawn.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-00010396-001

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   €5,012.85 and is entitled to be compensated for her loss.

The Complainant has been employed with the Respondent as a   General Operator on the Production Line since 15^th May 2012.   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 Respondent rejects the Complainant’s contention that   she was unaware of her start and finish times. She was generally rostered to work from 3pm   to 9.30pm, or 12.00.   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.   Sometimes if there was a problem on the   line, work would finish earlier. 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-00010396-001   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.