ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007275
Parties:
| Complainant | Respondent |
Anonymised Parties | Deskside support engineer for IT services | Information Technology services provider |
Representatives | Blazej Nowak | Mason Hayes & Curran |
Complaint(s):
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-00009628-001 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009628-002 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009628-003 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009628-004 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00009628-005 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-006 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-007 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-008 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-009 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-010 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-011 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-012 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009628-013 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009628-014 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00009628-015 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-016 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-017 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-018 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00009628-019 | 07/02/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00009628-022 | 06/02/2017 |
Date of Adjudication Hearing: 07/11/2017
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015,Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 7 of the Terms of Employment (Information ) Act, 1994, Section27 of the Organisation of Working Time Act 1997 and Section 24 of the National Minimum Wage Act, 2000 following the referral of the complaints to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant has presented 20 complaints. The complainant commenced employment as a desktop support services engineer for IT services on 1/2/2016 on a fixed term contract. He was dismissed on 5/10/16 for failure to satisfactorily complete his probationary period. His starting, basic, gross salary was €26500 p.a. In addition, he was entitled to standby allowance, overtime payments and Sunday payments. He was contracted to work 37.5 hours per week Monday – Friday. He brought claims against the respondent for alleged breaches of his entitlements under Section 7 of the Terms of Employment (Information) Act, 1994. Section 27 of the Organisation of Working Time Act. 1997, Section 8 of The Unfair Dismissals Act, 1977 He submitted these complaints to the WRC on 7/2/2017.
His complaint under Section 24 of the National Minimum Wage Act ,2000 was submitted on 9/3/17.
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Summary of Complainant’s Case:
It was agreed to cluster the complaints per the statute. A. Complaints under the Terms of Employment (Information) Act, 1994 Act. 1. CA -00009628-001. Alleged breach of section3 (1) (c) of the 1994 Act. Complainant’s representative referred to the letter of appointment which identified the respondent as X, Cork. The respondent has three sites and the specific site (s ) weren’t named. No address was given. The complainant worked 70% of his time on site A and the remaining time was distributed between site B and C. 2. CA – 00009628-002 Complainant asserted that there was no pay reference period contrary to section 3(g) of the 1994 Act. 3. CA 00009628-003 Complainant submitted that there was an absence of an average hourly rate contrary to section 3. (g). He claimed that he was not advised of his statutory entitlements in this regard. 4.00009628-004 Alleged breach of S. I 49/1998 in that duration of breaks was provided but not the time at which they should be taken. 5. 00009628- 013. Alleged breach of section 3(b) as respondent’s registered Irish address was not provided contrary to Section 3(i) (b) of the Act. 6.00009628-014 Breach of Section 5 of the Act alleged in that respondent omitted to provide change in particulars of employment to the complainant. 7. CA -00009628-015. The full name as opposed to an abbreviated name of the employer was not provided to the complainant, contrary to section 3 (a) of the Acts.
B. Complaints under the Organisation of Working Time Act, 1997 1.CA 00009628-006 Alleged breach of section 21 and 22 of the Organisation of Working Time Act, 1997, hereinafter referred to as the 1997 Act. Respondent failed to afford complainant his public holiday entitlement for the August 2016 public holiday. 2.CA 00009628-007. Alleged breach of section 21; not afforded his public holiday entitlements for 17 and 25 March,2 May and 6 June 2016. 3.CA 00009628-008 Breach of section 12 submitted in that rest breaks were not always provided. Complainant contends that under section 23 of the 1997 Act, the burden of proof rests with the employer to disprove this. The respondent did not maintain records. 4 CA.00009628—009. Breach of section 19 and 20 alleged. Complainant states that he was not afforded his annual leave entitlements for period ending March 2016. Complainant states that he is in time to bring this complaint forward. 5.CA 00009628-010 Complainant ‘s representative stated that the complainant worked more than 1365 hours for the period March – October 2016 and that a breach of section 20 and 23 occurred. Complainant asserts that he was not given his accrued annual leave entitlement for the period March – October 2016 on leaving his employment in October 2016. 6. CA 00009626-00011. Complainant alleges that he worked up to 60 hours per week and that this calculation should determine leave entitlement. Alleged breach of section 19 or 20. Complainant is seeking compensation for breach in addition to the economic loss claimed at CA 00009626-010.
7.CA -0009628- 012. Breach of section 17 of the Act alleged. He was not paid for overtime. Complainant could not say on which days and for how many hours he did overtime. 8.CA 00009628-016. Breach of section 11 alleged. Complainant advises that he did not receive statutory rest periods. 9. CA 00009626- 017. Breach of section12 alleged in that complainant was not given breaks. 10.CA 00009628-018. Alleged breach of section 15 of the Act. Complainant in the complaint form submitted to the WRC states “I am required to work more than the maximum permitted number of hours”. He states that he often worked up to 60 hours a week on occasions. He did not provide any dates or times to support this maintaining that the responsibility lies with the employer to furnish the records and disprove or otherwise his contention. 11.CA 00009628-019. Alleged breach of section 14 of the Act: non-payment of Sunday premia. The complainant stated that he often sent emails to his line manager on Sundays. He stated as swell that he often engaged in one to one on line training on Sundays and that these activities should attract the Sun day rate. Redress for breaches of the 1997 Act. The complainant’s representative stated that in relation to the complaints, submitted under the 1997 Act, the adjudicator should consider up to 2 years’ salary for each of the breaches .He cited the decision of Macken v Royal Liver (2002) 4 I.R. in support of this.He submitted the judgement in advance of the hearing of the ECJ decision of Von Colson v and Nordrhein Westfalen, 1984,14/83, ECR 1891 citation in his online submissions as an example of significant penalties having a dissuasive effect in terms of rights which flow from an EC Directive. C. Complaint under the National Minimum Wage Act ,2000. 1.CA 00009628-022, This complaint was submitted on 9/3/17 for alleged breach of section 23 which is that the respondent failed to provide complainant with national minimum rate for “any period of my employment”. This is based on the complainant’s contention that he worked up to 60 hours a week and it is this which deprived the complainant of the statutory minimum wage. He is prevented from providing details as the employer failed to keep records. Unfair Dismissals Act 1977 CA-00009628-005
For the purposes of this Act the complainant states that his employment began on 1/8/15 with the employment agency who assigned him to the respondent until 29/1/16. He was directly employed by the respondent on 1/2/16. He submits that he can combine these two periods to meet the statutory requirement of one years’ service. He contends that the employer was a constant; the employment to which he was assigned by the employment agency on the 1/8/15 was the respondent and this continued to be the case when he was directly employed by the respondent on 1/2/16. He also advises that he meets the requirement of the Minimum Notice and Terms of Employment Act 1973-2005 regarding continuous service. He concludes that he can therefore invoke the protection of Section 13 of The Unfair Dismissals (Amendment Act) 1993. He quotes the decision of Minister for Education and skills v The Labour Court and Anne Boyle and the Committee of Management of Hillside Park Preschool, unreported, 2017(IESCDET) 58 regarding a tripartite pact which can recognise two parties having an employer function or role and suggests an analogy between that case and his complaint. The complainant submits that he was unfairly dismissed and that he satisfies the requirement to have one years’ service. Statutory Time Limits Regarding the argument that his complaints are out of time, the complainant’s representative Sought an extension based on reasonable cause. He advised that the complainant had been in a car crash, had sustained a thigh injury, underwent surgery in October 2016, subsequently had walking difficulties and memory difficulties. The complainant himself gave evidence of difficulty walking, poor memory for which he attended Headway so as to improve his memory. The medication which he was on had made him” dozy”.
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Summary of Respondent’s Case:
The respondent provides IT support services to a range of companies. They employ 213 persons in Ireland.
The complainant worked on one site in Cork
His contract, opened to the adjudicator, and signed by the complainant on 2/2/16 indicates that it is a fixed term contract, scheduled to expire on the 31/12/16. The contract also states that failure to satisfactorily complete his probation will result in the termination of his employment.
His employment ended on 5/10/16 because of his failure to satisfactorily complete a probationary period.
He was paid salary for normal hours + standby rates on the occasions when he provided services.
The respondent accept that they held no records for the periods in question but that was corrected within one week of being notified of deficits.
Employee handbook indicates correct address for ROI.
Regarding the claim made under the National Minimum Wage Act, 2000, when the complainant requested his hourly rate from the respondent, same was supplied to him on 27/4/17.
A Complaints under the Terms of Employment (Information) Act, 1994 Act.
1 CA -00009628-001.
Breach of S 3(1) (c) denied. The contract of employment and the letter of offer, opened at the hearing, set out that the employer is P in Cork. The employee handbook appended to the contract which the complainant signed contained the full Irish address.
- CA – 00009628-002
Breach of section 3(1)(h) denied. The letter of offer of 26/1/16 set out his salary as €26,500 pa, to be paid monthly and in arrears. His basic salary was €2,208.33 per month and overtime was paid for hours worked in excess of this.
- CA 00009628-003
Respondent denied that average hourly rate had not been provided and so no breach contrary to section 3. (1), (g) has occurred. The complainant requested the average hourly rate in April. The respondent responded on 27/4/17 advising that it was €13.59 for May based on his hours worked.
- CA 00009628-004
Alleged breach of S49/1998 regarding times and duration of rest breaks contrary to sections 11,12 and 13 is denied.
The respondent ‘s Terms and Conditions, appended to the complainant’s contract, set out that there will be a ¾ hour lunch break.
5.CA 00009628- 013.
Details of the Irish address not provided contrary to Section 3 (b) of the Act.
The respondent accepted that letter of offer contained UK address but the place of work is described as being Company X in Cork. The Irish address was on the Terms and Conditions of Employment appended to the contract. The respondent repudiates the assertion that the address provided must be the registered address.
- CA 00009628-014
Cannot respond to alleged breach of Section 5 of the Act. No specifics provided to respondent prior to the hearing
- CA . 00009628-9628-015.
The respondent denies a breach of section3(a) of the 1994 Act occurred. The complainant knew with whom he was commencing employment. The full name of the employer was provided in the letter of offer of 28/1/16.
- Organisation of Working Time Act complaints.
The respondent’s representative stated that as the complaint were received by the WRC on 7/2/17, only alleged breaches which fell between 8/8/16-7/2/17 are admissible. The complainant was on paid sick leave on 14-17 June and from 1 July to 28th July. His salary ceased then. He was on sick leave from 1/7/16 – 5/2/16. The respondent relied on the Labour Court Determination Gibbons v Morehampton Ltd. DWT1720. The court found in that case that” as the complainant had not worked for the respondent in the six months prior to the date on which his complaints were lodged the events giving rise to those complaints occurred outside the statutory time limit”.
1.CA -00009628 -006.
Alleged breach of section 21 of the 1997 Act in respect of non- payment for the 1st August 2016, a public holiday.
Respondent states he was ineligible as he did not work 40 hours during the period of 5 weeks ending on the day before the public holiday. The respondent states that the claimant only worked 22.5 hours, on 27, 28 and 29 June 2016.
.2.CA 000009628-007
Alleged breach of section 21. Not afforded correct payment for public holidays which fell on 17 March, 25and 28 March, 2015, 2 May and 6 June. Without prejudice to respondent’s argument that the complaints are time barred, the complainant was on a period of sick leave from 1 July 2016- 5 October 2016. The complainant was not required to work on any of these public holidays. In addition, the complainant accrued an entitlement to 13 annual leave days, but took 23 days, four of which were unpaid and 4.5 were claimed back from his payment in lieu of notice. The respondent argues that he was overpaid for 1.5 days more than what he was owed and that therefore there was no breach of section 21 of the 1997 Act.
3.CA 00009628-0008.
The respondent rejects this complaint that he did not always receive his rest breaks, They state that it lacks the specificity as set out in Antanas v Nolan Transport ,DW,1117,where the Court held that “ the evidential burden on a claimant requires the complainant to adduce such evidence as is available to support a stateable case of non- compliance with the relevant provisions of the Act with sufficient particularity to allow the respondent to know, in broad terms, the nature of the complaint”
The respondent further argued that any breach of section 12 falls outside the time period within which an adjudicator has jurisdiction to consider the complaint, and any such breaches, which it is denied took place, occurred before the 6-month period allowable. The respondent’s submission added “this is due to the complainant being on long periods of sick leave during the period the Adjudication officer has jurisdiction to hear the complaint under section 12.”
The respondent’s services delivery manager gave evidence; he explained that the complainant could divide his 45-minute break into two slots and often did and that the complainant had never advised him that he couldn’t take his rest breaks. He frequently witnessed him dividing his breaks into two separate slots.
Respondent’s representative stated that no breach of s 12 had occurred.
4.CA 00009628-009.
Breach of section 19 and 20 denied was denied; not afforded annual leave entitlements in respect of the annual leave year ending 31/3/16.
The respondent advised that the complainant’s contract states that the leave year runs from1 January – 31 December each year. He was employed with the respondent from 1 February 2016 - 5/10/16. Leave accrued amounted to 13 days. For the leave year January – December he took 23 days, four of which were unpaid and 4.5 were claimed back from his payment in lieu of notice. The respondent argues that the complainant was overpaid for 1.5 days.
5.CA 00009628-010.
Alleged breach of section 19 or 20 of the Act; not afforded annual leave entitlements in respect of leave accrued for period March – October 2016.
Respondent contends that annual leave year runs from 1 January – 31 December. He was paid for 1.5 more days than was warranted and this was not recouped. Breach denied.
6.CA 00009628-011.
Breach of s 19 or 20 of the Act is denied. Not afforded accrued annual leave on termination of employment. Noted that this complaint refers to compensation for alleged breach as opposed to economic loss. . Overlap with CA 00009628- 010 above.
The company accept that they held no records for periods but that has since been corrected.
7.CA -00009628-012
Alleged breach of section 17.
The respondent submitted that that in circumstances where the complainant was on sick leave from1 July until the end of his employment on 5 October, no breach of s 17 occurred within the period within which the adjudication officer has jurisdiction. The respondent continued in their submission to state that the hours of the complainant were regularly 8.30/9am -5/5.30 pm but flexibility was built in to both the start and finishing times. His hours were regular, the working times unchanging and were set out in his written offer of employment and never fell below 37.5 a week. You couldn’t just elect to do overtime. One month’s notice was needed to avail of overtime. He did not claim overtime. Witness A, the services delivery manager of the respondent, advised that the agreed procedure was that all overtime had to be applied for and approved and that complainant had not applied for any overtime between February and June.
Section 17 breach is denied.
8.CA -00009628-016
Alleged breach of section 11 of the 1997 Act is denied. The complainant’s hours were 8.30-5.00 pm with a 45-minute unpaid break. A minimum of an 11-hour interval occurred between shifts and any overtime for which the complainant would be liable occurred on a Friday with the next shift not commencing until the following Monday generating, thus, intervals compliant with the Act. No specifics have been provided
9.CA-00009628-017
Alleged breach of s 12 of the 1997 Act is denied.
The respondent’s service delivery manager gave evidence and advised that the canteen was open from 7.30 -10.30 and from 12- 3.30 and that that he often saw the complainant in the canteen. He never once came to the services delivery manager to advise him of difficulties in getting his breaks. He never activated a grievance procedure.
He sometimes brought in his own lunch and had it at his desk but that was the complainant’s choice. Sometimes the complainant covered absences on site B; they also had a canteen there. Site C has no canteen but they do have a break room. And staff employed there did take breaks.
Respondent submitted that in circumstances where the complainant was on sick leave from 1July to October 16, no breach of sections 11/13 occurred within the period in which the adjudicator has jurisdiction.
- CA -00009628-18
The complainant claims that he worked up to 60 hours a week. No dates provided on which it is alleged that the complainant worked in excess of 48 hours per week as averaged out over a 4-month period as per section 15(1) of the Act.
The respondent submitted that as the complainant was on sick leave from 1 July 2017 to the end of his employment, no breach arises within the period which the adjudicator has authority to consider. It appears that the complainant is factoring in standby hours , unquantified Sundays and overtime to come up with this figures .Regarding the requirement for standby hours, the subject of agreement in the complainant’s contract, the respondent’s representative referred to ECJ decision Sindicato de Medicos de Asistancia Publica (SIMAP) v Conseleria ded Sanidad y Consumo de Generalidad Valenciana (2000)E.C.R 1-7693 which distinguished between the requirement to be present and provide professional services as opposed to having to be contactable. The latter requirement could not be regarded as meeting the definition of working time as set out in section 2 (a) and (b) of the 1997 Act. The respondent continued that therefore the requirement to be on standby to answer queries cannot be used to calculate time worked in accordance with s 15 of the Act.
On the other hand, where the complainant was engaged in answering queries over the phone – that is calculable.
No breach of s 15 occurred.
- CA -00009628-019
Alleged breach of section 14. Non-payment of Sunday Premium. The complainant did not identify any dates. Respondent states that as complaint was on sick leave from 1July 2017 to 5 October, 2016, no breach occurred. Without prejudice to the foregoing, the complainant did receive Sunday premium payments. He received quadruple the normal standby payment.
Redress
Respondent’s representative repudiates the complainant’s contention that he can receive up to two years’ remuneration for each and every breach and cites section27(3)(c) of the Act which in relation to the amount of compensation payable states an “amount………. not exceeding two years’ remuneration in respect of the employee’s employment”
- C. Breach of section 23 of the National Minimum Wage Act 2000
CA 00009628-022.
Respondent queried if the complaint had been submitted in time. The hourly rate of pay was given to complainant in April 2017. Statement advised that standby allowance was not reckonable in the calculation of his minimum pay rate as provided for in s 8(2)(c) (i) of the National Minimum Wage Act, 2000.
The respondent asserts that as the complainant was paid €13.95 an hour, no breach of the 2000 Act of occurred.
- Complaint under the Unfair Dismissals Act.
CA-00009628-005.
The respondent submitted that for a complainant to enjoy the protection of section 13 of the Unfair Dismissals (Amendment) Act 1993, he /she must be an agency worker within the meaning of the section immediately prior to the submission of the complaint. The respondent contends that the complainant must be an agency worker when the dismissal occurs. The complainant does not meet these statutory requirements.
The complainant has asserted that he meets the definition of continuous service as provided for in the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 unless broken by a resignation or dismissal. The complainant who voluntarily resigned does not meet these statutory requirements.
Findings and Conclusions:
Complaints under the Terms of Employment(Information) Act,1994 The complainant’s representative took the view that as the employer had omitted to keep records for the period in question the onus was on the employer to disprove the complainant’s complaints He cited particular statutory provisions and named non-compliance with these as breaches, without submitting any details in advance of the hearing. He considered that all that was required was a reference to the actual provision of the Act which had been breached. The complaints were lodged in 7 February 2016, 1.CA -00009628-001 The complainant’s representative stated that there were three sites for the respondent in Cork and that the designation Cork did not meet the requirements of the Act. He worked 70% in site A in Cork and 30% in site B in Cork and occasionally on a third site, C. The contract which he signed on the 2/2/16 did state that “this letter, plus the Terms and Conditions of Employment constitute your contract with the respondent”. The respondent was named in Cork. It was a location at which the complainant had previously worked for 6 months and the absence of the address constituted no detriment I uphold this complaint. It is a technical breach. I make no award. I am guided in this decision by the decision of the labour Court in Irish Water v Patrick Hall, TED,161. 2.CA -00009628- 002 Complainant’s representative stated that pay reference period was omitted in his letter of appointment, that he requested it and that it was not given to him. The evidence was that the pay reference period was contained in the Terms and Conditions. The letter of appointment dated 28/1/16 states that “This letter with the enclosed Terms and Conditions of Employment constitute your contract with the respondent”. I do not uphold this complaint. 3. CA 00009628-003 Complainant submitted that there was an absence of an average hourly rate contrary to section 3. (g). This was provided to the complainant on 27/4/17. I do not accept the complainant’s contention that standby rates and unquantifiable Sunday payments should be factored into this calculation. I do not uphold this complaint 4.00009628-004 Alleged breach of S. I 49/1998 in that duration of breaks was provided but not the time at which they should be taken. it is correct that neither the letter of appointment nor the Terms and Conditions appended give the times at which the breaks occur. They do give the duration of the breaks. I uphold this complaint. I make no award. Ref Labour Court decision TED , 161 5. 00009628- 013. Alleged breach of section 3(b) as respondent’s registered Irish address not provided contrary to Section 3 (b) of the Act. The Irish address was provided. It is incorrect to state that it must be the registered address. Section3(1)(b) of the Act states that what must be provided is “. The respondent met its obligations. I do not uphold this complaint. 6.00009628-014. Breach of section 5 alleged in that respondent failed to provide him with changes in the particulars of his employment. I find no evidence to support this complaint. I do not uphold this complaint 7. CA -00009628-015. The full name as opposed to an abbreviated name of the employer was not provided to the complainant, contrary to section 3 (a) of the Acts. 5. 00009628- 013. Alleged breach of section 3(b) as respondent’s registered Irish address not provided contrary to Section 3 (b) of the Act. The Irish address was provided. It is incorrect to state that it must be the registered address. Respondent complies with Section3(1)(b) of the Act. I do not uphold this complaint. 7. CA -00009628-015. The full name as opposed to an abbreviated name of the employer was not provided to the complainant, contrary to section 3 (a) of the Acts. The letter of appointment gives the full name. I do not uphold this complaint B. Complaints under the Organisation of Working Time Act, 1997 Statutory Time limits. The respondent’s representative stated that as the complaints were received by the WRC on 7/2/17, only alleged breaches which fell between 8/8/16-7/2/17 are admissible. He was on sick leave from 1/7/16 – 5/2/16. From 14-17 June and from 1-28 July it was paid leave. His salary ceased on 29 July. The respondent relied on the Labour Court Determination Gibbons v Morehampton Ltd. DWT1720. The court found in that case that” as the complainant had not worked for the respondent in the six months prior to the date on which his complaints were lodged the events giving rise to those complaints occurred outside the statutory time limit”. Complainant’s rep sought an extension to allow the complaints to be heard. Section27(5) of the 1997 Act does allow the adjudicator to extend time. He made the case that the complainant had suffered an injury in a car crash. This was identified as a thigh injury. The one medical statement submitted stated that the complainant had a thigh injury and suffered from stress. The complainant gave evidence. He had difficulty walking and in recalling g matters. He attended an organisation- Headway- to assist him with memory. He hesitated when asked when he first made contact with his representative . He stated first around the time of the accident. The representative advised that it had been in the last week of January 2017. The complainant could not indicate when he had commenced disability benefit. There was no medical evidence indicating the extent of injury or how it had impaired his functions. The The medical evidence as per the one document of October 2016 was scanty and vague. The complainant stated that he was in contact with a solicitor in October about a personal injuries case and that the same solicitor had offered no assistance to the present case. He advised him that he could not do anything. The complainant’s representative submitted Labour Court determination DWT 1411 in support of his request for an extension of time which concerned non- payment for public holidays. But in that case the complainant had gone to the respondent on a number of occasions and his requests for payment had been repudiated. In the within case, there is no evidence that the complainant approached the respondent about any of the breaches. The Complainant also offered the Court of Appeal’s decision in J.McE and the Residential Institutions Redress Board ,(2016) IECA 17. The latter case involved a remedial statute, intended to right historical and grievous wrongs. It conferred generous discretion to extend time. The differences, also, in the factual matrix led the Labour Court to decide that it was not applicable in a complaint made under the 1997 Act. The Labour Court in Cementation Skanska Ltd. V Tom Carroll, DWT 0388 stated in the matter of extending time that “It is for the complainant to show that there are reasons which both explain the delay and afford an excuse for the delay” The complainant sustained an injury in October 2017 the extent of which is unclear. Medical evidence as to how it might have impaired his abilities was not offered. The injury did not prevent him engaging with a solicitor concerning a personal injury claim. The claimant was not forthcoming in assisting the adjudicator or the respondent as to how the effects of the thigh injury prevented him from submitting the complaint in time. The complainant did not submit sufficient evidence to excuse the delay. I find therefore that I do not have jurisdiction to hear the complaints set out under the 1997 Act C. C. Breach of section 23 of the National Minimum Wage Act 2000. CA-00009628-022 The complaint was submitted in time. The hourly rate of pay was given to complainant in April 2017.This statement advised that standby allowance was not reckonable in the calculation of his minimum pay rate as provided for in s 8(2)(c) (i) of the National Minimum Wage Act, 2000.The complainant has based this alleged breach on the non- reckoning of standby allowances, overtime rates, and claims – unquantified and undated for a working week which reaches 60 hours. I accept the respondent’s evidence that the complainant did not claim overtime I accept that the complainant was paid €13.59 an hour; no breach of the 2000 Act of occurred. D. Complaint under the Unfair Dismissals Act. CA-00009628-005. To benefit from the protection of section 13 of the Unfair Dismissals (Amendment) Act, 1993, the complainant must be an agency worker at the time of submitting his complaint. I cannot make the link which the complainant does between the Minister for Education and Skills v the Labour Court and Anne Boyle and the Committee of Management of Hillside Park Preschool ltd., 2017 (IESCDET), a case advanced by the complainant in support of this complaint. This was a case, taken under a different statute concerning who was the employer for the purposes of a remedy as opposed to who is the employer when it comes to meeting a service requirement. Section 2(1)(a) states that the protections of the Act do not apply to persons with less than one year’s service. I find that he does not meet this service requirement. I have no jurisdiction to hear this complaint. |
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.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in the case.
Section 27 of the Organisation of Working Time Act, 1997 requires that I make decision.
Section 24 of the National Minimum Wage Act,2000 requires that I make a decision.
I do not uphold complaints CA 9628-002-,003-,013, -014,-015, -. I uphold complaints 00009628-001, -004. I make no award. I have no jurisdiction to consider complaints 00009628-006,-007,-008,-009,-010,-011,-012,-016,-017,-018,-019. I do not uphold complaint 00009628-022. I have no jurisdiction to hear complaint CA 00009628-005.
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Dated: 14 February 2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Terms of Employment; technical breaches; time- barred complaints under OWT; Must be an agency worker to enjoy protection of s.13 of UD (Amendment ) Act 1993 |