ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011252

Parties:

	Complainant	Respondent
Anonymised Parties	Security Officer	Security Company

Complaint:

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-00014982-001	13/Oct/2017

Date of Adjudication Hearing: 29/May/2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint 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 complaint.

Background:

The Complainant was employed as a Specials Officer from 8th September 2015 to 28th July 2017. She was paid €10.01 per hour. She has claimed that she was on a zero hours contract and should have been paid 15% of basic wages when not rostered. She has claimed a total of €2,154.75 in underpayments from 7th October 2015 to 28th July 2017.

Summary of Complainant’s Case:

The Complainant stated that she believed that she was on a zero hours contract of employment. She had to decline the main work that she had been doing due to her becoming unavailable at week-ends. She never declined work except the offer of work in Dun Laoghaire where she had to refuse because of the distance involved. She has no recollection of being offered alternative hours of work. She is seeking 15 % of her normal hours of work because she was on a zero hours contract. She had received a payment in the past and this proves that she was on a zero hours contract. She is owed pay for the period 7th October 2015 to 28th July 2017. She is claiming €2,154.75.

Summary of Respondent’s Case:

The Respondent stated that her contract was a ‘Specials Officer’. Special Officers are dealing with last minute needs, the Respondent has no control of who will arrive at the centre requiring assistance. Rosters are posted one week in advance of all available work to that time. They reject that she was not getting work. An examination of her hours of work show that she worked between 25 and 42 hours per week excluding absences, illness and holidays. In June 2017 she finished up with the main job that she was doing due to her unavailability to work week-ends due to family circumstances. She was offered alternative work in Dun Laoghaire but she declined it. She was out sick from 7th July to 4th or 8th August and she requested her P45 on 28th July 2017.

No ‘Specials Officers are on zero hours contract. Where hours are not available staff are offered alternative static/retail work.

She declined work and no monies are due.

Findings and Conclusions:

Time limit

This claim was presented to the Commission on 13th October 2017. Therefore, the period that may be investigated is 14th April 2017 to 28th July 2017 the date that she resigned.

I note that she is claiming for a period 7th October 2015 to 28th July 2017, which is considerably outside that allowable period, which is 6 months from date of presentation of claim, i.e. 14th April 2017 to 28th July 2017.

In this regard I refer to the High Court cases Moran v Employment Appeals Tribunal [2014] IEHC 154 and Health Service Executive v McDermott [2014] IEHC 331 where the High Court was asked to consider the meaning “within the period of 6 months beginning on the date of the contravention to which the complaint relates”. These High Court judgments confirm that, having regard to how the Complainant herein described his claim (from effect from 2010) which is a period that is well beyond the six-month statutory period provided in the Payment of Wages Act. Therefore, that claim is out of time. Mr Justice Hogan relying upon the Moran decision in the McDermott decision held as follows, “This was because the complaint as formulated by the claimant in that case related to a time period of alleged contraventions which was plainly time barred”.

In this case the Complainant formulated her complaint seeking to encompass the period 7th October 2015 to 28th July 2017which is well beyond the 6 month allowable period. Therefore this complaint is statute barred a by being out of time.

For completeness sake I have found no evidence that the Complainant was on a zero hours contract.

I found that she has not established a contractual entitlement to the monies claimed.

Decision:

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

For the above stated reasons, I have decided that the Complainant has not established a contractual entitlement to the monies claimed and that this claim is out of time.

Dated: 1st August 2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

Zero hours contract? Time limit