ADJ-00006324

ADJUDICATION OFFICER DECISION & RECOMMENDATION

 Adjudication Reference: ADJ-00006324

Parties:

Complaint and Dispute:

Date of Adjudication Hearing: 30th March 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 30^th November 2016, the complainant referred complaints to the Workplace Relations Commission pursuant to the Payment of Wages Act and the Industrial Relations Act. These complaints bear the reference CA-00008530-002 and CA-00008530-003 and are the subject of ADJ-00006324.

On the 17^th February 2017, the complainant referred a complaint against the same respondent to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. This complaint bears the reference CA-00009779-001 and is the subject of ADJ-00007236.

All complaints were scheduled for adjudication on the 30^th March 2017. The complainant attended the adjudication and was represented by James Flanagan, BL. Peninsula Business Services represented the respondent and four witnesses attended to give evidence, including the Branch Manager.

In accordance with section 41 of the Workplace Relations Act, 2015 and section 13 of the Industrial Relations Acts, 1969 following the referral of the complaint and the dispute to me by the Director General of the Workplace Relations Commission, I inquired into both the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.

Background:

The complainant commenced his employment with the respondent on the 12^th October 2015 and this came to an end on the 13^th July 2016. He was paid €2,916.67 per month gross. He asserts that he is entitled to redress for overtime worked in his employment for the respondent. Pursuant to the Industrial Relations Act, he also asserts that he was unfairly dismissed by the respondent, who registered their objection to this dispute being advanced.

Summary of Complainant’s Case:

The complainant asserts that he has a contractual right to overtime and that he regularly worked overtime, in particular after 5.30pm when plant machinery was returned to the respondent site following periods of hire. His role was to maintain and clean the machines, so that they were again available for hire. On occasion, he might have to attend to 10 machines returning to the respondent site after 4.30pm. He raised the overtime issue with the management of the respondent and this led to a very confrontational meeting with the Branch Manager of the 27^th May 2016. He also raised the overtime issue at his disciplinary appeal hearing and submitted that his dismissal was due to the respondent not wanting to pay overtime. He is owed €560 - €600 as he estimates that he worked €80 overtime per week in the seven months of his employment. He had requested his working time records from the respondent and none are available prior to February 2016.

Summary of Respondent’s Case:

The respondent denies that the overtime was authorised or required and that it has no liability to pay the amount sought. It denies that the complainant had to work beyond 5.30pm and if he did, it was only for 5 or 10 minutes. The Branch Manager gave evidence that he did not see the complainant in the workplace after 5.30pm. He commented that the complainant was not a key-holder. The respondent also disputed that the complainant would have worked on so many machines after 4.30pm as the delivery service did not have the capacity to return more than 4 or 5 machines at one time. The respondent generally only paid overtime for weekend call work and this was done by one member of staff. The complainant had covered a Saturday of annual leave for this colleague and he was paid for this. Its practice had been to supply working time sheets to staff, but it had not been the practice to collect them. It believed that the complainant had been supplied with time sheets. It asserted that the complainant had not been authorised to do overtime in the evenings and nor had this work been to any significant degree necessary. It denied the claim pursuant to the Payment of Wages Act. It objected to the claim made pursuant to the Industrial Relations Act.

Findings and Conclusions:

In respect of the complaint made pursuant to the Payment of Wages Act, I note the conflict of evidence between the parties as to how much time after 5.30pm the complainant had to remain in work to attend to machines. Irrespective of this conflict, I note that the Statement of Main Terms of Employment provides “You may be required to work overtime when authorised and as necessitated by the needs of the business.” It is difficult to see how the complainant has established a contractual or statutory entitlement to be paid the overtime in question without such authorisation from the employer or a finding via a grievance or Industrial Relations procedure that he is entitled to this payment. It follows that the overtime claimed by the complainant is not owing to him pursuant to the Payment of Wages Act.

On the 26th January 2017, the respondent indicated that it objected to the dispute made pursuant to the Industrial Relations Act. I do not, therefore, have jurisdiction to hear the matter.

Decision:

CA-00008530-002

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

For the reasons outlined above, I find that the claim made pursuant to the Payment of Wages Act does not succeed.

CA-00008530-003

I do not have jurisdiction to hear the dispute referred pursuant to section 13 of the Industrial Relations Act as the respondent has objected to this dispute being heard.

Dated:   29^th August 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Overtime pay

Payment of Wages Act

Objection to Industrial Relations Act dispute