Complainant

Respondent

Anonymised Parties

An Information Officer

A Festival Administrator Company

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-00018033-001

18/03/2018

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

CA-00018033-002

18/03/2018

The complainant was employed on a Community Employment Scheme working for the respondent. The contract in question, which was his third such contract, commenced on 10 October 2016 and terminated on 6 October 2017. The complaints under the Organisation of Working Time Act, 1997, are that the complainant worked more than the maximum permitted hours and that he did not receive his annual leave entitlement.

While employed as an Information Provider the complainant was required to work more than the 19.5 hours permitted on a Community Employment Scheme.

The complainant also had issues regarding annual leave entitlement.

After exhausting the internal procedures, the complainant contacted the relevant Departmental (DSP) officer who investigated the matter and upheld the complaint.

The respondent informed the complainant by letter, however, that his complaint had been deemed unfounded.

Further correspondence between the parties resulted in the respondent retracting this statement.   This retraction was made to the DSP officer but not to the complainant.

The complainant’s contract that his working hours were 19.5 hours per week or 39 hours per fortnight. If more than 19.5 hours were worked in a week the hours of the following week were adjusted accordingly.

The complainant did not abide by the complaints procedure for CE schemes which states that if a complaint remains unresolved it should be referred to the complainant’s employer and not to the Department.

The respondent accepts that the statement that the complainant’s complaint was deemed unfounded was incorrect.

The respondent is examining the complainant’s annual leave entitlement.

Complaint no. CA-00018033-001:

The complainant has presented this complaint under Section 27 of the Organisation of Working Time Act, 1997.

Section 15(1) of the Act 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 the “reference period”) that does not exceed –

(a)    4 months, or

(b)    6 months - ……

It is clear that from the evidence submitted, which includes the working hours performed by the complainant during his contract, that no breach of the kind set out in the above section took place and that in fact the dispute is in relation to possible breaches of the rules governing the working hours of a person employed under a CE Scheme. The respondent challenged some figures on the basis that the complainant was including as working time periods for training, etc. which ought to be excluded.   The complainant did raise his concerns with the Department of Social Protection and I can’t help noting in passing that his sense of grievance was not helped by the erroneous statement from the respondent that the DSP deemed his complaint to be unfounded.   However, that is not a matter that can be dealt with under this Act and I am confined to dealing with the complaint as presented.

Complaint No. CA-00019033-002:

This is a complaint to the effect that the complainant did not receive his entitlements to annual leave.   The complainant’s contract states:

“A participant engaged for the full duration of a CE scheme is entitled to 10.5 full days or 81 hours holidays and pro-rata where a lesser period is worked.”

Section 19(1) of the Act states:

Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to –

(a)    4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b)    One third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c)     8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

I note that the complainant went on sick leave on 7 August 2017 and did not resume employment until his contract terminated.

During the course of the hearing the respondent stated that they had re-examined their records as regards the complainant’s annual leave entitlements and now believed that there had been a miscalculation. The complainant had been paid for 65 hours and should have been paid for 81 hours. The complainant did not dispute these figures.

Complaint No. CA-00018033-001:

This is a complaint that the complainant was required to work more than the maximum permitted number of hours per week. For the reasons outlined above I find that the respondent was not in breach of Section 15(1) of the Act and I therefore find this complaint to be not well founded and that it fails accordingly.

Complaint No. CA-00018033-002:

This is a complaint that the complainant was not in receipt of his annual leave entitlement. From the evidence before me I find this complaint to be well founded and I require the respondent to pay to the complainant the sum of €176.82 as compensation in that regard.