Complainant

Respondent

Anonymised Parties

A hostel worker

A hostel

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-00018518-001

15/04/2018

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

CA-00018518-002

15/04/2018

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

CA-00018518-003

15/04/2018

The complainant worked with the respondent in a hostel. She was required to remain on the premises at night and to be available in case of emergencies. She worked on Sundays with no premium. She did not receive a copy of her terms and conditions.

The complainant worked as a Hostel Warden alternating between two weeks at 17 hours, and one week at 12 hours per week for just under a year. Her shift started at either 4pm or 5pm, and finished at 11pm. She also worked every Sunday either 9am - 4pm, or 4pm - 11pm. For these hours she was paid minimum wage. However, when her shift ended at 11pm, she had to stay on the premises and 'on call' until 8am, for which she was not paid at all. She was able to go to bed during this time, but the intercom system, security cameras and alarms were all in the room. She was on duty if guests arrived late or forgot the entrance code. She was solely responsible if the fire alarm went off and had to disarm and reset alarms and check the security of the entire building (alone and in the middle of the night), and had to contact the security company and / or emergency services, and reassure or evacuate guests as necessary. She was responsible for dealing with any kind of disturbance either within the building or externally, eg (drunk) guests making noise in the common room or people 'hanging around' the grounds outside. The complainant was effectively and unpaid security guard as getting up during the night was a regular occurrence during the busy summer months. Also, guests were unaware that she was no longer on duty and would not hesitate to seek her assistance after 11pm if necessary. The complainant was never reimbursed in either pay or time in lieu hours. On weekday mornings she had to be available at 8am to hand-over keys and guest information to the caretaker before leaving, for which she was not paid. On weekend mornings, she had to have alarms disarmed and the building open and ready for classes by 8.30am, despite her shift not starting until 9am.

The complainant brought her concerns to the attention of the Manager many times asking for an 'allowance' for the overnights, if not an hourly rate. She was told that it was an issue for the Board. The complainant asked repeatedly to speak with the Board, and was told that they weren't available. She asked many times for a contract of employment to check how unpaid overnights could be justified and was again ignored. She was told by the administrator that "legal or not, that's just the way it is" and "if you don't like it, look for another job". The complainant’s employment was then terminated and the hostel closed for the winter.

The complainant worked every Sunday, including Easter Sunday, for the duration of her employment (13th November 2016 - 16th October 2017). She asked about a supplement for working Sundays, but was ignored. She asked repeatedly for a Contract of Employment, but was again ignored. When another Warden left, she asked if the rota could be reviewed so that she could have, at least, one Sunday off per month. Within a week of this request , her employment was terminated. The reason given was that the Hostel was closing for the winter because it wasn't financially viable. The Hostel did close for the winter, but the other three employees attached to the hostel (who had not complained about unfair work practices) were 'kept on' in unnecessary roles eg two caretakers for the same building.

The complainant was employed from 13th November 2016 - 16th October 2017. After one month, she reminded her Manager that she had not yet received written Terms and Conditions of Employment. He responded that he was "too busy with a funding application" and that he would "look into it" after Christmas. In the new year, the complainant asked him again on at least three separate occasions. She explained that she had questions around the legality of unpaid overnights and non-payment of a Sunday supplement, and that she needed to check how these arrangements were outlined in her contract. She never received written Terms and Conditions of Employment. Her employment was terminated at the earliest opportunity despite doing the job extremely well and receiving 100% positive feedback from hostel guests.

The Respondent is a ‘not for profit’ organisation. A tourist hostel forms part of the enterprise as part of an attempt to provide an economic multiplier for the local community. A small number of staff are employed both full time and part time, taken in the main from the live register of unemployed as a means of enhancing further employment opportunities should any employee wish to progress their careers.

Hours of work.

The complainant’s hours of work varied between 12 and 17hours per week depending on the rota. Duties consisted of signing in guests, opening classrooms for activities in the evening and setting the alarm for the main building at 10 p.m., earlier if there are no activities. No further duties were required after that time. There are no activities on a Sunday. The complainant opened a classroom for a yoga class on only one occasion, the 25th February 2017 when she had swapped a shift with a colleague. This class starts at 09.15. The complainant had been instructed, as were all other staff, to inform guests that they were not available from 11 p.m. The complainant did however, inappropriately absent herself from the hostel to go shopping with guests on at least one occasion.

There are no recorded episodes where the complainant had to deal with any episode with guests outside her working hours. For a considerable portion of the time she worked for the Charity there were fewer than three guests registered, and of these a number were longer term/regular guests who were familiar with the arrangements within the hostel. On the sole occasion the alarm sounded while the complainant was present she declined to deal with it. No evacuation was undertaken.

The complainant appears to be implying that her employment was terminated as a result of her alleged comments to the manager. This is not the case. A review of the operation of the hostel had been undertaken and the considerable losses noted due to the low to non-existent occupancy during the period of September to April each year. This had resulted in an annual cost in excess of €30,000 in salaries over the period after the limited income was taken into account. This figure excludes heating and lighting, and equipment costs. The hostel closed in October 2017 and reopened in April 2018.

The complainant was paid the normal rate for her hours. There was a facility for staff to rearrange the roster to convenience themselves where they had events or occasions to attend and wished to avoid taking annual leave. The complainant only approached the manager regarding rostering in the latter stages of her employment and shortly before the hostel closure.

The complainant is incorrect regarding her assertion regarding retention of staff while terminating her employment. It is the aim of the respondent organisation to maximise employment where possible without excessive loss such as would put the employment of all staff at risk. There were at that time three individuals employed specifically for the hostel. One had tendered his resignation to take up full time employment, one was retained as there was still had a requirement for staff to close the building and the third was the complainant who the respondent was unable to retain due to the losses being sustained in keeping the hostel open over the autumn and winter months. The complainant had less service than the retained member of staff.

The organisation does not employ two caretakers. One caretaker is employed to care for the entire building which extends beyond the limits of the hostel. His role is entirely necessary.

The respondent is a charity organisation constituted with the objective of helping to enhance the economic and cultural life of the area. The respondent endeavours to ensure that all who engage with the organisation, including staff, are treated fairly and as flexibly as possible. It is regretted that the complainant was not provided with a written statement of her terms of employment.

Notwithstanding this, she was given comprehensive verbal instruction as to those terms and conditions. Steps have been taken to ensure this omission does not occur in future employments.

On call

Section 2 of the Organisation of Working Time Act 1997 defines working time as any time during which the employee is: -

(i)            at his or her place of work or at his or her employers disposal; and

(ii)           carrying on or performing the duties or activities of his or her work.

This aspect of the definition of working time arises most frequently in relation to period during which an employee may be on-call or on standby while not physically working. In general, where an employee is on-call and is free to do as he or she wishes if not called upon to attend at work, the periods between call-outs are not regarded as working time. However, if the employee is required to be at a designated location and can be called upon at any time to undertake work, the periods of inactivity are regarded as working time. This arose in a case decided by the CJEU, Case C-151/02 Landesshauptstadt Kiel v Jaeger [2003] IRLR 804, involving a doctor who was required to remain at the hospital in which he was employed in order to provide emergency treatment to patients when needed. He was provided with sleeping facilities in the hospital but could be called upon at any time to attend to patients. The Court held that in these circumstances the period of inactivity, even those in which the doctor was sleeping, could not be regarded as rest periods and must, therefore, constitute working time. The complainant in the current case was required to be in attendance in the hostel in order to deal with emergencies and therefore the time must be regarded as working time.

Sunday Premium

Section 14 of the Organisation of Working Time Act states;

14.—(1) 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 been 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 an 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 respondent did not give the complainant a copy of the terms and conditions relating to her employment. She was paid minimum wage for the hours worked and it is clear therefore that she did not receive a Sunday premium as required under the Act. This complaint is therefore well founded.

The issue of penalisation the matter was raised at the hearing. I accept the respondent’s explanation for the termination of the complainant’s employment and that it was not connected to the issues raised under the Organisation of Working Time Act 1997 or the Terms of Employment (Information) Act, 1994 and therefore, any complaint of penalisation is not well founded.

Terms and Conditions

The respondent acknowledges that they did not furnish the complainant with the terms and conditions of her employment as required under the Terms of Employment (Information) Act, 1994 and therefore this complaint is well founded.

The complaint in relation breaches of the Organisation of Working Time Act 1997 are well founded and I order the respondent to pay the complainant;

the sum of €2,500 in respect of failure to pay the complainant for the nights spent on the premises;

and

the sum of €1,200 in respect of the failure to pay the complainant a Sunday premium;

The complaint in relation breaches of the Terms of Employment (Information) Act, 1994 is well founded and I order the respondent to pay the complainant €200 in compensation.

The total award is redress of the Complainant’s statutory rights and therefore not subject to income tax as per s. 192 A of the Taxes Consolidation Act 1997 as amended by s.7 of the Finance Act 2004.

On call. Sunday premium.   Terms and Conditions.