ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009988

Parties:

	Complainant	Respondent
Anonymised Parties	A Tour Operator	A Tour Provider

Representatives

Mr Ronnie Neville,

Solicitor Mason, Hayes & Curran

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00012809-001	26/07/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00012809-002	26/07/2017

Date of Adjudication Hearing: 05/01/2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath BL

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.

In particular, the Complainant herein has referred two complaints:

A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991. This section obliges an Employer to pay wages that are properly payable. Redress is outlined in Section 6 of the said 1991 Act, and in circumstances where the complaint is made and is deemed to be well founded, compensation in the amount so specified may be awarded.

In a preliminary way I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 26th of July 2017 was submitted within the time allowed.

A second Complaint relates to a contravention of The Organisation of Working Time Act 1997 an in particular to a contravention under Section 19 and 20 of the 1997 Act wherein all classes of employees earn holiday entitlements which are calculated in a recognised way e.g. 4 working weeks in a leave year in which the employee works at least 1,365 hours. The time for being paid for annual leave is in advance of the taking of the leave and is to be paid at the normal weekly rate.

Again, the Complaint under this Act has been made within the appropriate time limits. Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:

Declare the complaint was or was not well founded;
Require the Employer to comply with the relevant provision;
Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

Background:

The Complainant was an Employee with the Respondent Company since 2002. The Employment ended on the 23rd of July 2017 at which time the Complainant put in a claim under the two Acts. The same facts have given rise to the two Complaints.

Summary of Complainant’s Case:

The Complainant set out his issues in his Workplace Relations Complaint Form and I additionally heard his oral evidence at the hearing. The Complainant worked with the Respondent for upwards of 18 years and worked with acknowledged diligence. The Complainant gave evidence that he worked long hours as per his Contract of employment. His evidence was that the Holiday pay is calculated by the Company on an 8 hour day and not the 9 hour day that he actually was expected to work. The Complainant has sought his Complaint to be backdated for the fifteen years of his employment. Per his Contract of Employment the Complainant is entitled to six weeks of holiday – two more than that provided under the Organisation of Working Time Act.

The Complainant states those hours described as overtime actually form the basis of his required working week of 45 hours.

Summary of Respondent’s Case:

The Respondent gave evidence through it’s company Director Mr. HD. I was additionally given legal submission. The Respondent gave evidence that the Complainant is paid 40 hours per week at a standard rate and any hour worked thereafter in a week at an Overtime rate up to the 45 hours. The Respondent pointed out that the Overtime payment is a Guaranteed payment (i.e. every week 5 hours is paid at an Overtime Rate), even though the Contract provides that those hours form part of the basic hours of work.

The Company has given evidence that for the purpose of calculating holiday pay, the company calculates on the daily rate of 8 hours at a standard rate and a further half hour at the overtime rate. The evidence is that the company opts to discount the half hour lunch break for the purpose of calculations. The Company states this is over and above what is required of it under the OWTAct wherein overtime is not normally assessed.

The Company pointed out that any obligation relating to the rates of pay as provided for under the Organisation of Working Time Act applied only to the four weeks provided for under the Act. The Respondent is entitled to pay in respect of the balance of days as it deems appropriate and the Respondent is anxious that it’s reputation of being good to it’s employees. It is entitled therefore to deduct the half hour in lunchtime pay for non -working (i.e. holiday) days. The Respondent did acknowledge a loss existed per the calculations and had had a cheque previously returned by the Complainant in the sum of €527.00.

Findings and Conclusions:

I have carefully considered the evidence adduced by the parties herein. The Complainant worked long hours per his Contract of employment though less than the 48 hour maximum allowed in any seven day period.

Disputes under this legislation (OWTA) must be brought within six months of the dispute or complaint occurring. The limit may be extended to twelve months if reasonable cause is shown. It is therefore not within my power to extend time by the 15 requested years.

I accept that the Complainant has addressed the same dispute under two separate pieces of legislation and I am satisfied that he can only succeed under one piece of legislation.

On balance, I found that the Respondent’s methodology was unclear and that the Complainant had no idea of the basis of their calculation until he attended at the hearing. It is understandable that the Complainant was at a loss to understand the basis of calculations. However I am limited in time and I note that the annual losses accepted by the Complainant are calculated by him at €18.20 by 30 hours.

In the circumstances, I am going to find that the Complaint under the Organisation of Working Time Act is well founded.

I will not make any finding under the Payment of Wages in circumstances where the facts are the same for each 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.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 I require the Employer to pay to the Employee the sum of €1,000.00

Pursuant to Section 6 of the Payment of Wages Act, 1991 I make no direction for the payment of compensation

Dated: 12th July, 2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath BL

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