ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00007700
Parties:
| Complainant | Respondent |
Anonymised Parties | A worker | A Company |
Representatives |
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Complaint(s):
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-00009613-003 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00009613-004 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00009613-007 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009613-009 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009613-010 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00009613-011 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8(1) of the European Communities (Working Conditions of Mobile Workers Engaged in Inter- Operable Cross-Border Services in the Railway Sector) Regulations 2009 - S.I. No. 3 | CA-00009613-012 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged inInteroperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of | CA-00009613-014 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009613-015 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00009613-016 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009613-017 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009613-018 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009613-019 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009613-020 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009613-021 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009613-023 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009613-024 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00009613-025 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00009613-026 | 03/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00009613-027 | 03/02/2017 |
Date of Adjudication Hearing: 16/08/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.
The Complainant herein has referred a matter for dispute resolution under Section 6 Payment of Wages Act, 1991, Section 14 Protection of Employees ( Fixed Term Work ) Act, 2003, Section 27 of the Organisation of Working Time Act, 1997, Section 7 Terms of Employment ( Information) Act, 1994, Regulation 18 European Communities Regulations 2012 S.I No. 36 of 2012 and S.I. No. 377 of 2009.
Withdrawal:
The complainant withdrew the following matters:
CA 9613 – 007, 011,012,014,016,017,018,019,020,021,024,025,026,027.
Summary of Complainant’s Case:
9613- 003 Payment of wages. There were deductions from the complainant’s wages in relation to breaks. It was done randomly. If the complainant worked a 13 hour shift, 1 hour was deducted. If he did a 12 hour shift, 30 minutes was deducted. The complainant was never asked to keep sign in sheets to establish if and when he actually took breaks. The time sheets simply had his start time and finish time. The complainant was unable to provide any details in relation to the hours he says were deducted in breach of the Act. 9613 -004 Payment of wages. The complainant stated that this claim is relevant to a period at the beginning of 2016 and accepts that it is out of time. 99613 – 009 Organisation of Working Time. The complainant stated that his holiday pay was paid on an average of 39 hours per week. He never worked a 39 hour week. His hours were always in excess of 39 hours. 9613 – 010 Organisation of Working Time The complainant stated that he was always paid for 7.5 hours when he worked 8 hours. 30 Minutes were deducted for lunch. No further details were submitted in relation to this claim. 9613 – 015 Organisation of Working Time . The complainant stated that he was paid an agreed rate of €12p.h. No overtime rate was agreed with the respondent. 9613 – 023 Terms of Employment. The complainant stated that he never received a contract of employment. |
Summary of Respondent’s Case:
9613-003 Payment of wages The respondent stated that they calculated the complainant’s hours of work and break times based on the person who drove him to work timesheets. They did deduct time from the overall daily hours to allow for breaks. 9613 -004 Payment of wages. This part of the complainant’s claim is statute barred. 9613 – 009 Organisation of Working Time. The respondent stated that they did pay the complainant a flat rate based on 39 hour week at € 12 per hour. 9613 – 010 Organisation of Working Time. The respondent accepts that if the complainant worked for 8 hours they did deduct 30 minutes for his break. 9613 – 015 Organisation of Working Time . It was agreed between the parties that the complainant would be paid a flat rate of € 12 per hour work. There was no agreement in relation to an overtime rate. The respondent stated that he didn’t have the hours in any event. 9613 – 023 Terms of Employment The respondent accepts that the complainant was never given a contract of employment.
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Findings and Conclusions:
9613 – 003 Payment of Wages,
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it. The complainant was paid an hourly rate. The respondent paid him for the hours worked only. They deducted an hour if he worked a 13 hour shift and a half an hour if he worked 12 hours of less. The respondent did not pay him for the times he didn’t work. They based his hours of work only. The complainant did take breaks daily however they might not have been for the full time he was entitled to. He was unable to provide any specific details of his claim. I find the respondent was not in breach of Section 5 of the Act and accordingly the complainant’s claim fails. 9613 -004 Payment of wages. The claims relates to a period at the start of 2016. The complainant lodged his claim with the WRC in March, 2017. The matter is outside of the statutory period allowed. I do not have jurisdiction to hear the matter. 99613 – 009 Organisation of Working Time. The complainant lodged his claim with the WRC on the 27th March, 2017. I have jurisdiction to hear a the portion of the claim from the 27th September, 2016. The complainant left his employment on the 6th September, 2016. The complainant’s holiday period annual is in August. Therefore I find that the claim before me is Statute barred. 9613 – 010 Organisation of Working Time. I find that this claim is a duplicate of 9613 -003. 9613 – 015 Organisation of Working Time. The evidence from both the complainant and the respondent was that a flat rate of €12 p/h was agreed between the parties. There was no agreement in relation to an overtime rate. On that basis the complainant is only entitled to the flat rate of €12 p/h regardless of the hours he worked. 9613 – 023 Terms of Employment ( Information) Act. “3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment ……………” It is accepted that the complainant was never furnished with a written statement setting out the terms of his employment. On that basis I find that the claim succeeds and I award the complainant € 1,800.00
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA 9613-003
The complainant’s claim fails.
CA 9613 -004
The complainant’s claim is statute barred.
99613 – 009
The complainant’s claim is statute barred
9613 – 010
I find that this claim is a duplicate of 9613 -003.
9613 – 015
The complainant’s claim fails.
9613-023
The complainant’s claim succeeds and I award the complainant € 1,800.00
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Dated: 29th September 2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
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