Complainant

Respondent

Parties

Farm Hand

Farm Owner

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-00009114-002

17/01/2017

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

CA-00009114-003

17/01/2017

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

CA-00009114-004

17/01/2017

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

CA-00009114-005

17/01/2017

The complainant was employed as a farm labourer by the respondent commencing on 3 February 2016 and terminating on 21 October 2016.   The duties were general farmyard duties including assisting in the twice-daily milking of a herd of 220 cows.   The complaints arise from issues regarding the number of hours worked per week, the rate of pay for the job and the application of a premium rate for working on Sundays.

The complainant worked 7 days most weeks from 7am to 7pm with a one-hour lunchbreak which is in excess of the maximum permitted by legislation.

The complainant was not compensated for working Sundays.

The complainant did not receive a contract or payslips except for three payslips which had to be specifically requested.

The payslips indicated a rate of €10.00 per hour but the complainant was paid significantly less than that.

The complainant did not receive all holiday pay or annual leave entitlement.

The complainant worked 5 – 6 days per week.

Records were kept and signed by the complainant.

The complainant signed a contract of employment.

The complainant was paid according to his contract and received a premium for Sunday working.

Payslips were available for the complainant at all times.

The complainant received all holiday pay due to him when leaving.

There was a direct conflict of evidence from the parties in relation to most of the issues in dispute.   It was accepted, however, that the complainant had received holiday monies due to him and this specific complaint was therefore withdrawn.

The complainant, in direct evidence, stated that he commenced work most mornings at about 7am.   The cows required milking twice a day so that it was around 7pm in the evening when he finished work. In the time that he worked on the farm the complainant could only recall missing about 5 Sundays in work. He did not leave the farm during the day. The complainant said that he did not normally receive wage slips. When he needed copies of his wage slips for an official purpose he had to specifically request them. The wage slips provided indicated that he was paid €10.00 per hour. The time sheets were presented to him for signing but they only had the date on them, the working hours section was blank.   When the complainant totalled the hours worked by him he realised that he was being paid much less than €10.00 per hour. The complainant’s mother gave evidence that during a period of about 3 months when the complainant’s car was off the road she would deliver and collect him from work.   She verified that on weekdays she left the complainant to work at 7am and collected him at 7pm. Sunday working was 7am to 10 am and then 4pm to 7pm.   The witness stated that she believed that the complainant worked about 75% of the Sundays.

The respondent produced a contract dated 22 February 2016 signed by the complainant. This showed a rate of pay of €12.47 per day but the respondent stated that this was the hourly rate. The respondent also produced printed wage slips in respect of the complainant for the period that he worked on the farm. A set of attendance sheets was also provided by the respondent. The attendance sheets, for the most part, have every date filled in. The start times and finish times are not filled in.   The “Total Hours Worked” column for each day contains varied totals or is blank or is marked “off”. The final column contains “Total Weekly Hours”.   The complainant’s signature appears on each sheet together with a date corresponding to the final date of each month and the employer’s signature. The total weekly hours worked per week as shown in the final column correspond, as far as can be ascertained, with the pay slip for that week (which does not contain the weekly hours or hourly rate) based on the rate of €12.47 per hour. The amounts on the pay slips coincide with the amounts transferred to the complainant’s bank account. The Sundays that are shown as having been worked (5 in total) have the hours worked on that day doubled for the purposes of calculating weekly hours worked.

As regards total weekly hours worked these are shown to vary from week to week. According to the documentation the weekly average was about 28.65 hours and never exceeded 39 hours per week (inclusive of the double hours for Sunday). There is therefore a fundamental difference between the evidence of the two parties.  

The complainant’s representative submitted that an examination of the working hours’ records presented at the hearing showed that the dates were all written in by the same ballpoint pen and, as this was an unlikely occurrence over a period of 8 months, therefore the complainant’s evidence that they were all presented to him for signature at the same time was the more credible. In addition the complainant produced the wage slips that he said he had received upon request. These wage slips differ substantially in content and form from the wage slips supplied to the hearing by the respondent. The wage slip for Week 32 originally given to the complainant, for example, documented that he had worked 30 hours (5 x 6 hours per day) @ €10.00 per hour producing gross pay of €304.52 (€300.00 net). The wage slip presented by the respondent for the same period gave a basic pay of €304.52 (€300.00 net) without any reference to hours worked or hourly rate. There is an hours record for that period indicating 24 hours worked over 4 days (2 x 4 hrs., 1 x 8 hrs. and 8 hrs. paid leave). When asked about this the respondent stated that he could not account for the pay slip provided by the complainant.

The catalyst for the complaints appears to be the issuing of these wage slips detailing a pay rate of €10.00 per hour and the complainant’s belief that he was being accordingly underpaid for the hours that he actually worked. If he felt underpaid at that rate how much more aggrieved would the complainant have been if he had been aware of the rate of €12.47 per hour. In addition, an important part of the complainant’s duties was milking the cows. This duty was performed twice a day and by its nature had to be spread between early morning and afternoon. No evidence was offered that there were other persons employed to do this duty.     For these reasons I prefer on balance the evidence put forward by the complainant as regards his working hours.   I therefore find that the records produced by the respondent are unreliable in this regard.

Section 15(1) of the Organisation of Working Time Act, 1997, states:

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 respondent did not invoke any reference periods but rather stated that the complainant’s hours never exceeded 39 hours per week.

The Labour Court has determined that in circumstances where an employee takes a claim and the employer has not kept proper records, the onus is on the employer to prove his case (Ref. Case Nos. DWT 1584/1585). I find that the respondent has failed to discharge that onus.

Section 14(1) of the Organisation of Working Time Act, 1997, states:

An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise being taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely –

(a)   by the payment to the employee of an allowance of such amount as is reasonable having regard to all the circumstances, or

(b)   by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c)    by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d)   by a combination of two or more of the means referred to in the preceding paragraphs.

The Labour Court has stated that some element of the employee’s pay must be specifically referable to the obligation to work Sundays and that it is for the employer to show that a specific element of the employee’s pay was intended to be in consideration of the obligation to work Sundays. The respondent said at the hearing that the complainant was paid double-time for his work as a farmhand on a Sunday, i.e. €24.94 per hour and put forward as proof the working hours documentation that showed 4 hours work on a Sunday transcribed as 8 hours for pay calculation purposes.   There is also a dispute regarding the number of Sundays worked by the complainant. For reasons already stated I find these records unreliable for the purpose of providing a true and accurate record of the complainant’s working hours. Neither version of the wage slips refer to an element specifying the compensation for Sunday working. I therefore find that the respondent has not discharged the onus placed on him in this matter.

Section 5(6) of the Payment of Wages Act, 1991, states:

Where –

(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 to 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 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 in 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’s original complaint was that, based on the rate of pay of €10.00 per hour referred to in the original wage slip, he was significantly underpaid for the hours that he worked which in many weeks totalled 72 hours. The respondent as part of his submission produced a contract that specified €12.47 per hour as the complainant’s rate of pay and argued that the complainant was paid correctly based on that hourly rate.   This figure therefore must be accepted as the correct rate of pay for the complainant. The dispute therefore is in relation to the number of hours worked per week by the complainant. If the complainant was paid for less hours than he was entitled to be paid for then that underpayment would amount to a unauthorised deduction as he was paid less than the amount of wages properly payable to him. I have already stated that I have found the records kept by the respondent to be unreliable. It should also be noted that the complainant did not himself keep a diary of hours worked. His evidence was a broad statement about working 72 hours on many weeks and his mother provided corroboration of this in relation to the portion of time she provided transport when the complainant’s car was off the road.   There is obviously a large difference between the parties as regards the weekly hours worked by the complainant.   There is therefore a difficulty in quantifying the amount of underpayment claimed by the complainant.  

I note that the complaint form was lodged with the WRC on 17 January 2017. As per Section 41(6) of the Workplace Relations Act 2015 I cannot take into consideration issues that occurred prior to six months before the complaint was lodged.  

Complaint No. CA-00009114-002:

This is a complaint under the Organisation of Working Time Act, 1997, regarding the non-payment of a Sunday premium. For the reasons set out above I find this complaint to be well founded and I require the respondent to pay the complainant the sum of €450.00 as compensation in this regard.

Complaint No. CA-00009114-003:

This is a complaint under the Organisation of Working Time Act, 1997, regarding the requirement to work in excess of the maximum weekly working hours. For the reasons set out above I find this complaint to be well founded and I require the respondent to pay the complainant the sum of €1,000.00 as compensation in this regard.

Complaint No. CA-00009114-004:

This is a complaint under the Payment of Wages Act, 1991, regarding the complainant being paid less than what was due to him. For the reasons set out above I find this complaint to be well founded and I require the respondent to pay the complainant the sum of €3,500.00 as compensation in this regard.

Complaint No. CA-00009114-005:

This is a complaint under the Organisation of Working Time Act, 1997, regarding holiday pay due.   As noted above the complainant withdrew this complaint at the commencement of the hearing.