ADJ-00008380

ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00008380

Parties: 

Complaints:

Date of Adjudication Hearing: 29th November 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015, Section 24 of the National Minimum Wage Act 2000 and Section 27 of the Organisation of Working Time Act 1997 andfollowing the referral of the complaints to me by the Director General, I inquired into the complaints 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 been employed by the Respondent since 2nd September 2009 and his fortnightly rate of pay is €1,360.00c gross.  

The Complainant was submitting that the Respondent had (a) failed to pay him his entitlements in accordance with the with the requirements of the National Minimum Wage Act 2000 and (b) was in breach of his rights pursuant to the requirements of the Organisation of Working Time Act 1997 in relation to Sunday Working and Public Holiday Entitlement and the Respondent was denying the complaints

Preliminary Issue:                                                                                                                                   A preliminary issue arose in relation to the complaint under the National Minimum Wage Act 2000.  

Section 24 of the 2000 Act, which deals with disputes about entitlement to the minimum hourly rate of pay provides at subsection (2) the following:

“A dispute cannot be referred to or dealt with by a Rights Commissioner (now an Adjudication Officer)

• unless the employee

• has obtained under Section 23 a statement of her or his average hourly rate of pay in respect of the relevant pay reference period,     or

• having requested the statement, has not been provided with it within the time limited by that Section for the employer to supply the information.”

The Complainant confirmed that he had not either requested or received such a statement in accordance with the foregoing quote from Section 24 of the Act of 2000.                                                              

Summary of Complainant Cases on Organisation of Working Time Act 1997:

The Complainant said that the Respondent was in breach of his rights under the provisions of the Organisation of Working Time Act 1997 as follows:

Sunday Working: The Complainant said that he did not receive any compensation for Sunday Work in contravention of Section 14 of the 1997 Act.

The Complainant said that he regularly worked on Sundays and that he did not receive any recognition for this Sunday Work in his pay as required by Section 14 of the Act.   He said that the fact that he worked on Sunday was not taken into account by the Respondent in the calculation or determination of his pay and he emphatically denied the submissions of the Respondent in that respect.

He said that the following provisions of Section 14 the 1997 Act in relation to Sunday Working were not applied to him by the Respondent:

1. He was not paid “an allowance of such an amount as is reasonable having regard to all the circumstances”
2. Nor was his pay “increased by such an amount as is reasonable having regard to all the circumstances.”
3. Nor was he granted “such paid time off from work as is reasonable having regard to all the circumstances.”
4. Nor was he granted by the Respondent “any combination of two or more of the means referred to in the preceding paragraphs.”

The Complainant sought a finding and decision that his complaint in relation to Sunday working was well founded and was upheld.

Public Holidays:   The Complainant said that he did not receive any additional pay in respect of Public Holidays in breach of Section 21 of the 1997 Act.

The Complainant said that he did not receive any of the entitlements as laid down in Section 21 of the 1997 Act in relation to public holidays, namely:--

1. He did not receive “a paid day off on that day”
2. He did not receive “a paid day off within a month of that day”
3. He did not receive “an additional day of annual leave”
4. He did not receive “an additional day’s pay”

The Complainant sought a finding and decision that his complaint in relation to public holidays was well founded and was upheld.

Summary of Respondent’s Case on Organisation of Working Time Act 1997:

The Respondent was denying there was any breach of the Complainant’s rights and entitlements under the Organisation of Working Time Act as alleged by the Complainant.

The Respondent referred to Appendix 4 of the Contract of Employment signed by the Complainant and Appendix 6 of the Terms of Employment issued by the Respondent to the Complainant.

The Respondent said that the remuneration clauses of both of these documents are a variant of “you will be paid at a rate of €17.00c per hour, which covers all statutory entitlements including payment of double time for public holidays and Sunday Premium of time and one half when rostered.”

The Respondent said that the method of calculation of the hourly rate is as contractually stated and is paid is in accordance with SI No. 475/1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997.   The Respondent said they set out the hourly rate, the 9 public holidays, calculating payment at double time for these days, and the compensation for the number of Sundays rostered to comprise a total pay due for the year and then divided that evenly in order to attain a consistent weekly payment, payable every fortnight.

The Respondent said that the Complainant’s basic rate of pay was €15 per hour, plus a further payment of €2 per hour to cover Sunday Premium and Public Holidays Premium.

It was submitted by the Respondent that the Complainant has worked under these terms and conditions since 18th August 2015 and to date he has accepted that compensation for both being rostered on a Sunday and where applicable for public holidays was included in his payment.   The Respondent that said at the Complainant’s behest, no departure from this arrangement has been put in place.

The Respondent said they had provided evidence of the acknowledgement, calculation and inclusion of payments for both a Sunday Premium and Public Holidays in serial issuances of statements or terms and conditions of employment and that it is therefore untrue to say that the Respondent has not made these payments to the Complainant.

Based on the foregoing the Respondent sought a finding and decision that the complaints under the Organisation of Working Time Act were not well founded and they should be rejected.

Findings, Conclusions and Decisions:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 24 of the National Minimum Wage Act 2000 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of Section 26 of the 2000 Act.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complainant in accordance with the redress provisions of the same Section of the 1997 Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the complaints under the two Acts:

The National Minimum Wage Act 2000:   CA-00011174-001:                                                                     . I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the complaints under The National Minimum Wage Act 2000:

Section 24(2) of the National Wage Act 2000 provides that:

“A dispute cannot be referred to or dealt with by a rights commissioner—

• Unless the employee—

• has obtained under Section 23 a statement of her or his average hourly rate of pay in respect of the relevant pay reference period,     or

• having requested the statement, has not been provided with it within the time limited by that Section for the employer to supply the information.”

It is clear from the above that it is pre-condition for a complaint under the 2000 Act to be considered or entertained that the Complainant must have sought a statement of her or his average hourly rate of pay in respect of the relevant pay reference period.   The Complainant confirmed at the Hearing that he never sought such a statement from the Respondent.

Accordingly, I must find and declare that I cannot entertain the complaint under the Act of 2000; and I must declare that the complaint under the National Minimum Wage Act 2000 is not well founded and that it is rejected by me.

The Organisation of Working Time Act 1997: CA-00011174-002:                                                             .                                                                       I have carefully considered the evidence and submissions made and I have concluded as follows in relation to the complaint in respect of Sunday Working in accordance with the provisions of Section 14 of the Organisation of Working Time Act 1997 and I have concluded as follows in that respect:  

Section 14 of the 1997 Act provides as follows in relation to Sunday Work:

“(1) An employee who is required to work on a Sunday (and the fact of her or his having to work on that day has not been taken into account of in the determination of her or his pay) shall be compensated by her or his employer for being required to so work by the following means, namely—

• by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances,     or

• by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances,   or

• by granting the employee such paid time off from work as is reasonable having regard to all the circumstances,     or

• by a combination of two or more of the means referred to in the preceding paragraphs”

I note that the Complainant’s contract of employment and his terms and conditions of employment specifically provide that his hourly pay rate covers the requirement to work on Sunday.  

Thus I am satisfied that the requirement for him to work on a Sunday “has been taken into account in the determination of his pay” in such a way as complies with the requirements of Section 14 of the 1997 Act.  

Accordingly I find and declare that the complaint under Section 27 of the 1997 Act in relation to Sunday Work is not well founded; it is rejected and it is not upheld.

The Organisation of Working Time Act 1997: CA-00011174-003:                                                             . I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the complaint in respect of Public Holiday entitlements in accordance with the provisions of Sections 21 and 22 of the of the Organisation of Working Time Act 1997 and I have concluded as follows in that respect:

The Respondent submits that the Complainant’s hourly rate of pay covers provides for and covers his public holiday entitlements in accordance with the provisions of the Organisation of Working Time Act 1997.

Section 21 of the Organisation of Working Time Act 1997 deals with employees entitlements in respect of Public Holidays and it provides inter alia as follows in that respect:

“(1)   Subject to the provisions of this Section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following her or his employer determines, namely—

• a paid day of on that day,

• a paid day off within a month of that day,

• an additional day of annual leave,

• an additional day’s pay”

I do not accept that an increase in the hourly rate of pay complies with or meets the above requirements of Section 21 of the Organisation of Working Time Act 1997 in relation to Public Holiday entitlements.

Accordingly, I find and declare that the complaint under Section 27 of the 1997 Act in relation to public holidays entitlements in accordance with the provisions of Sections 21 and 22 of the 1997 Act is well founded and it is upheld.

Having declared that the complaint is well founded, I now in accordance with the provisions of Section 27 of the Organisation of Working Time Act require the Respondent to make the necessary arrangements going forward to ensure that one of the 4 above quoted means from Section 21 of the 1991 Act is applied to all of the Complainant’s public holidays and the Complainant should be informed (in advance) which of these will apply going forward.

I note that there were 5 public holidays in the (6 month) relevant period under consideration for the purposes of the instant complaint, i.e. Christmas Day 2016, St. Stephen’s Day 2016, New Years Day 2017, St. Patrick’s Day 2017 and Easter Monday 2017 and this is the equivalent of €680.00c.

I further note that Article 11 of the Council Directive 2002/15/EC upon which the 1997 Act is based states: “Member States shall lay down a system of penalties for breaches of the national provisions adopted pursuant to the Directive and shall take all measures necessary to ensure that these penalties are applied.   The penalties thus provided shall be effective, proportional and dissuasive.”

Taking into account the above, and in accordance with the provisions of Section 27(3) of the 1997 Act I now require the Respondent to pay the Complainant compensation in the sum of €1,350.00c within 6 weeks of the date of this decision for breaches of his rights under Sections 21 and 22 of the Organisation of Working Time Act 1997.

Dated:              15 February 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly

Key Words: Minimum Wage, Sunday Premium, Public Holiday Pay