ADJ-00008310

Complainant

Respondent

Parties

An Engineer

Engineering Consultancy

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011004-001

27/04/2017

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

CA-00011004-002

27/04/2017

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

CA-00011004-003

27/04/2017

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

CA-00011004-004

27/04/2017

The claimant commenced employment with the respondent, Consulting Civil and Structural Engineers in 2005 as a design engineer. The c became Chief Civil Engineer in 2008 and became an Associate Director in May 2012.

At peak employment levels pre 2008 the respondent company employed approximately 42 people. Over the course of the recession employment numbers collapsed to 5 and there was barely enough work to keep 5 people employed. In 2008 all overtime payments were stopped as a step towards the survival of the company. This measure was acceptable to the remaining employees.

In April 2017 the complainant met with his employer and raised his grievance in relation to:

1. No contract was ever issued to him – CA 00011004 - 001
2. My employer has not paid me or has paid me less than the amount due – CA 00011004-002
3. I do not get a daily rest period – CA00011004 -003
4. I am required to work more than the maximum permitted number of hours – CA00011004-004.

Pre- hearing the complainant had submitted a very comprehensive submission in two parts (total 484 pages).

The complainant’s case is focussed on the fact that he was never issued with a contract outlining his terms of employment, he was not paid the overtime to which he feels should have been paid to him, he did not receive the appropriate daily rest period at times and finally he was required to work more than the permitted number of hours per week.

Volumes of papers were submitted showing times of arrival and departure from work.

The complainant is now alleging that he is owed unpaid wages of €129,484 and unpaid holiday pay of €9,449. And is seeking compensation in relation to his other complaints.

Terms of Employment (Information) Act 1994 – The respondent accepts that they are in breach of this act and did not provide the complainant with a contract of employment.

The respondent denies that the complainant is owed the sum of €129,484 in respect of wages or is owed any outstanding holiday pay. Overtime is not a statutory entitlement and the complainant has no contractual entitlement to be paid for overtime. It is accepted by the respondent that there was paid overtime prior to 2008. It is denied that that there was ever any commitment to pay overtime after 2008. It was also submitted that that there was no need for anyone to work overtime as there was a total collapse of work and it is only recently that has been an increase in work and the company is again expanding.

The respondent also points towards Section 41(6) of the Workplace Relations Act 2015 that provides that the complaint should be presented within the period of six months beginning on the date of the contravention to which the complaint relates.

The complainant breaks down his claim for annual holiday pay into two periods of time: 1^st June 2008 to 30^th November 2013 and 1^st December 2013 to 21^st April 2017. It is submitted by the respondent that the only relevant period of time is the period 28^th November 2016 to 27^th April 2017, the date the complaint was received by the Workplace Relations Commission.

With regard to alleged hours of work the respondent claims the complainant was expected to work core hours between 9.00am and 5.30pm with one hour for lunch. The respondent showed a degree of flexibility, he was aware that the complainant often went into work very early and then would have a breakfast break as other employees started work. It was also pointed out that the complainant was Chief Civil Engineer and therefore his hours were not monitored to any great extent. Examples were then provided in relation to job specific logging of hours to establish time spent working on individual projects.

Organisation of Working Time Act – the claimant alleges that he was not given a daily rest period and was required to work more that the maximum permitted number of hours, this is denied by the respondent. The complainant was entitled to a one hour lunch break similar to all other employees and he inevitably did. With respect to other breaks the respondent points out that the complainant is a heavy smoker and on average took up to 10 smoking breaks per day - this was the subject of complaint from other employees.

It is denied by the respondent that the complainant was required to work more that the maximum permitted number of hours. It is pointed out that on the two occasions on which he was requested to work overtime in April and May 2017 he refused and there were no repercussions.

Finally, it was re-emphasised that the claimant never made a claim for overtime since 2008 nor did he log any of this alleged overtime on the coretime system as overtime, all working hours that he did log on the system were logged as ordinary time.

Complaint Reference – CA 00011004 - 001

Terms of Employment (Information) Act,1994

Section 3 (1) of the aforementioned Act reads as follows:

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, that is to say –

1. The full names of employer and employee
2. The address of the employer in the State
3. The place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places
4. The title of the job or nature of the work for which the employee is employed,
5. The date of commencement of the employee’s contract of employment,
6. In the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term , the date on which the contract expires,
7. The rate or method of calculation of the employee’s remuneration,
8. The length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,
9. Any terms or conditions relating to hours of work (including overtime),
10. Any terms or conditions relating to paid leave (other than paid sick leave)
11. Any terms or conditions relating to –

I)                    Incapacity for work due to sickness or injury and paid sick leave, and

II)                  Pension and pension schemes

1. The period of notice which the employee is required to give and entitled to receive,
2. Reference to any collective agreements which directly affect the terms and conditions of the employees’ employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by which they were made.

It is not being disputed that the complainant did not receive such a statement as outlined above.

Complaint Reference – CA 00011004 – 002

Payment of Wages.

Section 41(6) of the Workplace Relations Act 2015reads as follows:

Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

This complaint was made to the Director General on 27^th April 2017; we are therefore looking at the period 28^th October 2016 (not November 2016 as claimed by representative of the respondent) to the 27^th April 2017.

The complainant had no contractual right to be paid for overtime and from submissions made I cannot find any time during this period where overtime hours were worked or claimed.

In relation to payment for holiday entitlement it was accepted by the respondent that the claimant had taken 14 days annual leave in 2016 and 17 days this year. It was noted that he is resigning from his employment on 1^st August – he is entitled to a payment equivalent to 2.33 days pay for untaken leave from last year and this year. This appeared to be acceptable to the respondent.

CA – 00011004-001 –Terms of Employment (Information) Act, 1994 – I find that the complaint is well found and award the complainant compensation in the sum of €1,730.77 (equivalent to two weeks’ pay).

CA 00011004 – 002 – Pay – The complaint in relation to overtime payments is not well found and therefore fails. As stated above there is outstanding holiday pay that should be paid to the complainant.

CA 00011004 – 003 and CA 00011004 – 004 – Hours of Work – The complaints are not well found and therefore fail.

Hours of Work, Written statement of particulars of employment.