ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00007789

Parties:

	Complainant	Respondent
Anonymised Parties	{A Steel Worker}	{A Company}

Representatives

Blazej Nowak

Graham Bailey IBEC

Complaint(s):

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-00010393-001	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-002	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-003	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-004	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-005	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-006	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-007	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-008	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-009	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-010	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-011	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-012	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-013	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-014	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-015	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-016	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-017	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-018	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-019	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-020	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-021	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-022	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-023	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-024	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00010393-025	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010393-026	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010393-027	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010393-028	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010393-029	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010393-030	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010393-031	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010393-032	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010393-033	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00010393-034	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-036	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-038	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-039	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-040	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-041	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-042	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-043	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-044	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-045	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-046	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-047	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-048	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-049	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-050	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-051	22/03/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00010393-052	22/03/2017

Date of Adjudication Hearing: 19/01/2018

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following 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 was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-001

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 23 March 2016 to 23rd September 2016.

He seeks an extension of time to pursue his complaints due to his delay in lodging these until 22 March 2017 on the grounds that he is a foreign national and was not aware of his legal entitlements to breaks. The Complainant was employed with the company for over 10 years.

He says that there were daily breaches in the 6 months prior to lodging his complaint, and numerous breaches within the 12 month period prior to lodging his complaints. The clocking in forms show the breaks and often only 1 break a day was afforded. The timing of his breaks were not notified to him by the Respondent.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes.

The Complainant said there were 3 occasions when he had discussions with management regarding the requirements to clock in and out for breaks. There was no discussion about the staff not being able to take breaks and his workload was such he could not take these. He received approximately 2 lunch breaks per week.

Summary of Respondent’s Case:

The Respondent disputes all of the complaints made against the company as without merit and say these complaints are being pursued due to the Complainant’s negative reaction to his dismissal for gross misconduct. The complaints are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

The Respondent says that the Complainant has failed to show a prima facie case as assertions are made which are not supported by evidence. The complaints under the Organisation of Working Time Act 1997 should be disregarded as the specific dates of the alleged contraventions have not been made clear and likely that they are out of time.

The complaints are very vague and non-specific making it extremely difficult for the Respondent to formulate a cogent and robust response. There seems to be a large amount of duplication in the claims. The scant detail furnished places the Respondent in an invidious position of not being able to adequately investigate or respond to the allegations being made and relies on the determination in Co Louth VEC v The Equality Tribunal and Pearse Brannigan which stated:

“Of course, it is necessary that insofar as the nature of the claim is expanded, the Respondent in the claim must be given a reasonable opportunity to deal with these complaints, and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice”.

In relation to all of the complaints under the Organisation of Working Time Act 1997, he Respondent relies on the inspection report by Nuala Breen WRC Inspector of 11th January 2018 which states that for the period preceding no breaches of the legislation were found. The Respondent says this report should be considered as it would indicate the claims are without merit. In addition, the Complainant’s file was reviewed by the WRC Inspector at the time, including samples of his hours of work and payslips. If a finding is made against the Respondent they say this will undermine the inspection that has taken place.

The Respondent has a clocking in system for staff which requires the employees to clock in their hours and breaks and relies on their input of their hours. The staff are paid on the basis of the hours recorded by them. There was a problem as the Complainant was failing to clock in and out for his breaks. The Respondents said they were aware the Complainant was taking his breaks as they could see him doing this but he was not recording these on their clocking in system.

All Staff were notified of the requirement to take their breaks and to record this on their clock cards. In addition notice was given to the Complainant’s in his weekly payslips on 2 occasions in 2017 “all staff required by law to clock in & out for breaks”. The legal requirement to take breaks and to clock in and out for breaks was also translated into Polish and put on a notice on the Notice Board for all staff in the company on 6th March 2017. Copies of the notice was furnished. All of the payslips issued contain a notice to staff about recording their hours.

As the Complainant was not complying with the clock in requirement for his breaks he was given verbal warnings when he received his payslip on 11th May 2016, 4th August 2016.

Findings and Conclusions:

I have heard the evidence of the parties and considered the submissions made at hearing and on 2 February and 24 February 2018.

Section 12 of the Organisation of Working Time Act 1997 provides

(1) that an employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1)

(3) …….

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2)

The Complainant is a non-national. He received a contract of employment which provides for breaks of 15 minutes and 30 minutes on each shift in English and this was signed by him in 2008. He says he did not lodge his complaint within the prescribed time-frame of 23 March 2016 to 22 September 2016 as he is a non-national and was not aware of his entitlements under Irish law. He seeks an extension of time to proceed with this complaint.

During the period 23 March 2016 to 22 September 2016, the Office Manager gave evidence that 2 verbal warnings were given to the Complainant by her on 11 May and 4 August 2016 for failure to clock in and out for breaks.

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

The Respondent has given credible evidence that the Complainant was aware of his entitlement to breaks during this period and was given 2 verbal warnings for failure to clock in for his breaks. I find the Complainant was aware of his entitlement to breaks within the prescribed period and that reasonable cause has not been shown for the failure to lodge his complaint within the prescribed time-limit.

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.

I find the complaint is not well founded as it is statute-barred.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Extension of time, reasonable cause, non-national, breaks

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-002

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 25th September 2016 to 1st October 2016.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes. The clock in records do not show his breaks. He says there were numerous breaches in the 6 months prior to his dismissal.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says they are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

In relation to all of the complaints under the Organisation of Working Time Act 1997, the Respondent relies on the inspection report by Nuala Breen WRC Inspector of 11th January 2018 which states that for the period preceding no breaches of the legislation were found.

The Respondent has a clocking in system for staff which requires the employees to clock in their hours and breaks. The Complainant was failing to clock in and out for his breaks. The Respondents said they were aware the Complainant was taking his breaks but he was not recording these on their clocking in system. The Complainant was given verbal warnings when he received his payslip on 11th May 2016, 4th August 2016 for not clocking in and out for breaks. All of the payslips issued contain a notice to staff about recording their hours.

Findings and Conclusions:

I have heard the evidence given by the parties and considered the submissions made at the hearing and on 2 February and 24 February 2018, and that 2 verbal warnings were given to the Complainant by a member of management on 11 May and 4 August 2016 for failure to clock in and out for breaks.

The Complainant has failed to specify the dates of the alleged breaches during the time period and the Respondent must know with reasonable clarity what it is expected to rebut in line with fair procedures and following the Labour Court in Antanas v Nolan Transport DWT 1117.

I find the Complainant has not discharged the burden of proof.

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.

I find the complaint is not well founded as no evidence of the specific breaches has been adduced.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Breaks, records of breaks, details of complaint, burden of proof

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-003

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 2nd October to 8th October 2016.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says they are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

The Respondent has a clocking in system for staff which requires the employees to clock in their hours and breaks. The Complainant was failing to clock in and out for his breaks. The Respondents said they were aware the Complainant was taking his breaks but he was not recording these on their clocking in system. The Complainant was given verbal warnings when he received his payslip on 11th May 2016, 4th August 2016 for not clocking in and out for breaks. All payslips notified staff of their obligation to input their hours.

Findings and Conclusions:

During the period 23 March 2016 to 22 September 2016, the Respondent gave evidence that 2 verbal warnings were given to the Complainant by a member of management on 11 May and 4 August 2016 for failure to clock in and out for breaks.

I find the Complainant has not discharged the burden of proof.

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.

I find the complaint is not well founded as no evidence has been adduced of the specific breaches.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Breaks, records of breaks, details of complaint, burden of proof

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-004

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 9th October 2016 to 15th October 2016.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says they are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

The Respondent has a clocking in system for staff which requires the employees to clock in their hours and breaks. The Complainant was failing to clock in and out for his breaks. The Respondents said they were aware the Complainant was taking his breaks but he was not recording these on their clocking in system. The Complainant was given verbal warnings when he received his payslip on 11th May 2016, 4th August 2016 for not clocking in and out for breaks. The payslips set out the requirement to input hours.

Findings and Conclusions:

I find the Complainant has not discharged the burden of proof.

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.

I find the complaint is not well founded as no evidence has been adduced of the specific breaches.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Breaks, records of breaks, details of complaint, burden of proof

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-005

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 16th October 2016 to 22nd October 2016.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes.

He says that there were daily breaches in the 6 months prior to lodging his complaint. The clocking in forms show the breaks and often only 1 break a day was afforded. The timing of his breaks were not notified to him by the Respondent. He says there were numerous breaches in the 6 months prior to dismissal.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says they are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

The Respondent has a clocking in system for staff which requires the employees to clock in their hours and breaks. The Complainant was failing to clock in and out for his breaks. The Respondents said they were aware the Complainant was taking his breaks but he was not recording these on their clocking in system. The Complainant was given verbal warnings when he received his payslip on 11th May 2016, 4th August 2016 for not clocking in and out for breaks. The requirement to record all hours was set out on the payslips.

Findings and Conclusions:

I find the Complainant has not discharged the burden of proof.

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.

I find the complaint is not well founded as the Complainant has not adduced evidence of specific breaches.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Breaks, records of breaks, details of complaint, burden of proof

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-006

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 23rd October 2016 to 29th October 2016.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says they are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

The Respondent has a clocking in system for staff which requires the employees to clock in their hours and breaks. The Complainant was failing to clock in and out for his breaks. The Respondents said they were aware the Complainant was taking his breaks but he was not recording these on their clocking in system. The Complainant was given verbal warnings when he received his payslip on 11th May 2016, 4th August 2016 for not clocking in and out for breaks. The obligation to input hours was set out on the payslips.

Findings and Conclusions:

I find the Complainant has not discharged the burden of proof.

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.

I find the complaint is not well founded as no evidence has been adduced of the specific breaches.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Breaks, records of breaks, details of complaint, burden of proof

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-007

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 30th October 2016 to 5th November 2016.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says they are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

Findings and Conclusions:

I find the Complainant has not discharged the burden of proof.

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.

I find the complaint is not well founded as no evidence has been adduced of the specific breaches.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Breaks, records of breaks, details of complaint, burden of proof

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-008

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 6th November 2016 to 12th November 2016.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says they are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

The Respondent has a clocking in system for staff which requires the employees to clock in their hours and breaks. The Complainant was failing to clock in and out for his breaks. The Respondents said they were aware the Complainant was taking his breaks but he was not recording these on their clocking in system. The Complainant was given verbal warnings when he received his payslip on 11th May 2016, 4th August 2016 for not clocking in and out for breaks. The obligation to input hours was set out on the payslips.

Findings and Conclusions:

I find the Complainant has not discharged the burden of proof.

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.

I find the complaint is not well founded as no evidence has been adduced of the specific breaches.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Breaks, records of breaks, details of complaint, burden of proof

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-009

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 13th November to 19th November 2016.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says they are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

The Respondent has a clocking in system for staff which requires the employees to clock in their hours and breaks. The Complainant was failing to clock in and out for his breaks. The Respondents said they were aware the Complainant was taking his breaks but he was not recording these on their clocking in system. The Complainant was given verbal warnings when he received his payslip on 11th May 2016, 4th August 2016 for not clocking in and out for breaks. The requirement to input hours was contained in the payslips.

Findings and Conclusions:

I find the Complainant has not discharged the burden of proof.

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.

I find the complaint is not well founded as no evidence has been adduced of the specific breaches.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Breaks, records of breaks, details of complaint, burden of proof

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-010

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 20th November 2016 to 26th November 2016.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says they are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

Findings and Conclusions:

I find the Complainant has not discharged the burden of proof.

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.

I find the complaint is not well founded as no evidence has been adduced of the specific breaches.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Breaks, records of breaks, details of complaint, burden of proof

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-011

The Complainant claims breaches of S12 of the Organisation of Working Time Act 1997 that he did not receive his breaks during the period 27th November 2016 to 3rd December 2016.

He usually got his 15 minute morning break but due to the fact he was the supervisor for the team and the work was staggered, he could not take his lunch break of 30 minutes.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says they are made in bad faith, are not grounded on evidence and in some cases are false and seeks dismissal of all of the complaints.

The Respondent has a clocking in system for staff which requires the employees to clock in their hours and breaks. The Complainant was failing to clock in and out for his breaks. The Respondents said they were aware the Complainant was taking his breaks but he was not recording these on their clocking in system. The Complainant was given verbal warnings when he received his payslip on 11th May 2016, 4th August 2016 for not clocking in and out for breaks. The requirement to input hours was set out on the payslips.

Findings and Conclusions:

I find the Complainant has not discharged the burden of proof.

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.

I find the complaint is not well founded as no evidence has been adduced of the specific breaches.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Breaks, records of breaks, details of complaint, burden of proof

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-012

The Complainant claims a breach of S19 of the Organisation of Working Time Act 1997 in the annual leave for year ending 31/3/16.

Summary of Respondent’s Case:

The Respondent disputes the complaints.

In relation this complaint under the Organisation of Working Time Act 1997, the Respondent relies on the inspection report by Nuala Breen WRC Inspector of 11th January 2018 which states that for the period preceding no breaches of the legislation were found.

Findings and Conclusions:

No evidence was adduced by the Complainant in relation to this complaint.

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.

The complaint fails as no evidence was adduced to validate the complaint.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

CA-00010393-013

The Complainant claims a breach of S20 of the Organisation of Working Time Act 1997 in annual leave in year ending 31 March 2016.

Summary of Respondent’s Case:

The Respondent disputes the complaints.

Findings and Conclusions:

No evidence was adduced by the Complainant in relation to this complaint.

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.

The complaint fails as no evidence was adduced to substantiate the complaint.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-014

The Complainant claims a breach of S19 of the Organisation of Working Time Act 1997 in the period 1 April 2016 to 16th March 2017. He received 4 days holidays 3, 8 January, 20 February and 10 March 2017. His employment was terminated on 16th March 2017. He says he is entitled to 4.37 days and is owed 1 additional day.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says the Complainant’s annual leave of 4 days due was already given to him.

Findings and Conclusions:

Statutory Annual Leave is defined in S19 of the Organisation of Working Time Act 1997 as 20 days or 4 weeks leave for an employee as the Complainant who would normally work at least 1,365 hours.

The relevant leave year commences under S2 (1) of the Organisation of Working Time Act from 1 April 2016 to 31 March 2017, notwithstanding that a complaint of breach of the Act must be made within 6 months of the contravention the complaint which was made on 22 March 2017 is in time following the decision in Royal Liver Assurance v Macken & Ors.

Annual leave accrues pro-rata to the time worked. The Complainant worked 75 days in 2017 and was due to be paid for 4.11 days. It is accepted he was paid for 4 days of annual leave. There is a technical breach of the Act in non-payment of .11 of one day’s annual leave. I find the complaint well-founded.

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.

The Complainant’s earned 13.75 euro per hour plus shift allowance and overtime. In the circumstances, I award 50 compensation for breach of the statute.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Annual leave, technical breach

Background:

The Complainant was employed with the company from 2006 and was promoted to steel line supervisor in February 2014. He was dismissed on 16th March 2017 for gross misconduct.

Summary of Complainant’s Case:

CA-00010393-015

The Complainant claims a breach of S20 of the Organisation of Working Time Act 1997 that his pay was not received in advance of his annual leave from 25-29 April 2016, and 11, 12 August 2016, 1-4 November and December 12, 28-30, and he was not given 2 week’s unbroken annual leave.

The Complainant says that the holiday rate paid did not take into account his shift allowance of 1.50 euro per day which was paid for every second week on shift.

Summary of Respondent’s Case:

The Respondent disputes the complaints and says the Complainant’s annual leave was all paid depending on when notification of the holiday was received. If payroll had been completed for the week and notification received after payroll was completed it was not possible to pay the holiday until the following week. Where notice was given of a few weeks or a month before the holiday, payroll was adjusted to arrange for payment in advance. The Respondent sought to be flexible to allow some holidays requested on short-notice.

In relation to this complaint under the Organisation of Working Time Act 1997, the Respondent relies on the inspection report by Nuala Breen WRC Inspector of 11th January 2018 which states that for the period preceding no breaches of the legislation were found.

The Respondent says it paid the Complainant’s holiday pay in advance of his holiday in November 2016, it was paid in advance and recorded afterwards. When the Complainant was replaced on holiday, shift allowance was then paid to another employee as it is only payable when the shift is worked. This is paid every second week for shifts worked.

Findings and Conclusions:

I have considered the evidence of the parties and their submissions on 2 and 24 February 2018.

The Respondent has provided a payslip for 28th October 2016 which evidences payment of holidays in November 2016 in advance. On 11, 12 August 2016 the Complainant took 2 days holidays in one week, and 3 days 28-30 December 2016 together. I accept the Respondent’s evidence that they were flexible in relation to holiday requests when a few week’s notice was given and this was afforded to the Complainant who sought holidays over a number of different periods in the leave year.

There is no evidence that payment was paid in advance of holidays to the Complainant in April, August and December 2016.

The Complainant says he was not paid a shift allowance while on holidays, however, the Respondent says this was paid to his replacement as the allowance is for carrying out the shift and is paid every second week.

The “normal weekly rate of pay” for section 20 of the Organisation of Working Time Act 1997 is set out in the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 for an employee whose pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done, is the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave.

The Complainant is paid an hourly rate of pay 13.75 per hour together with a shift allowance of 1.50 per shift every second week when this is worked. The Complainant was due 24.11 days holiday pay for the leave year ending 31 March 2016, and is entitled to an additional shift allowance of 1.50 euro which was unpaid for 50% of his holidays.

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.

I find the complaint is well founded and award 18.50 euro arrears of financial loss and compensation of 50 euro for non-payment of the shift allowance on holiday. I award 50 euro for non-payment of holiday pay in advance on 3 occasions.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Annual leave, short-fall in payment of annual-leave.

Background:

CA-000010393-016

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 21 of the Organisation of Working Time Act 1997 in the last 6 months when there were 4 public holidays. The Complainant was paid basic wages for each day and was not paid a shift allowance for the days. In addition, he worked a lot of overtime and this should have been taken into account in calculating his public holiday pay. He received 8 hours pay for public holidays and was completing 50 hours in weeks preceding the public holidays. He claims an additional 2 hours for 4 public holidays in October, December, January and March.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate and the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions made at the hearing and on 2 and 24 February 2018 2018. In the six month period prior to submission of the complaint on 22 March 2017 there are 5 public holidays the last Monday in October, 25, 26 December, 1 January and 17 March.

Shift allowance of 1.50 euro per shift is payable every second week by the Respondent in addition to his hourly rate of 13.75 euro. Public holiday pay is calculated in accordance with the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 SI 475 of 1997.

The Complainant’s pay is calculated in accordance with Section 3 (2) of the Regulation as it is calculated wholly by reference to a time rate that does not vary and his normal weekly rate of pay is the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime).

Section 4 Appropriate daily rate of pay

(a) The rate at which an employee is paid in respect of a day off under S21 of the Act…

“the relevant rate” shall be determined in accordance with the subsequent provisions of these Regulations.

Section 5 . Relevant rate for employees (other than certain categories or job sharer)

(1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday then-

(a) In case the employee’s pay is calculated wholly by reference to any of the matters referred to in Regulation 3 (2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal daily hours last worked by him or her before that public holiday….

The shift allowance of 1.50 euro is payable to the Complainant every second week and I find that this is payable in respect of 3 of the public holidays in the period.

In the week prior to 17 March 2017, the Complainant worked overtime and this is part of his normal pattern of work. The Complainant usually works on a Monday. Under section 5.1 of the Regulations the public holiday fell on a day which he ordinarily works and he should be paid for the normal daily hours which he worked on the last working day prior to the public holiday which was 10 hours. There is a shortfall in the remuneration paid to the Complainant in respect of the 4 public holidays in January, December, and October 2016 and the claim for 8 hours additional pay is well founded.

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.

I find the complaint of failure to pay shift allowance for 3 public holidays is well founded and direct payment of 4.50 euro arrears of wages. This is a technical breach of the Regulations and falls under the de Minimus rule.

I find the complaint of failure to pay overtime for 4 days public holiday pay is well founded and direct payment of 8 hours arrears of wages of 13.75 euro gross total 110 euro together with 150 euro compensation for the breach.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Calculation of public holidays, overtime, shift allowance

Background:

CA-000010393-017

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 21 of the Organisation of Working Time Act 1997 in the last 12 months when there were 9 public holidays. 5 of these days were within the last 6 months and have already been dealt with in CA-000010393-016.

As the Complainant is a non-national he was unaware of his legal entitlements and could not have known about this. He seeks an extension of time in order to make this complaint on the grounds of his lack of knowledge of the Irish legal system as a non-national.

The Complainant was paid basic wages for each day and was not paid a shift allowance for the public holidays. In addition, he worked a lot of overtime and this should have been taken into account in calculating his public holiday pay. He received 8 hours pay for public holidays and was completing 50 hours in weeks preceding the public holidays. He claims an additional 2 hours for each public holiday.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate and the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and in February 2018. The Complainant is a non-national working in the company for over 10 years. He was promoted to Supervisor in the company.

The established test for deciding if an extension of time should be granted is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

I find that reasonable cause has not been shown and the complaint is dismissed as it is statute-barred.

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.

The complaint is dismissed as it is statute-barred.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Calculation of public holidays, grounds to extend time due to reasonable cause, overtime, shift allowance

Background:

CA-000010393-018

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 22 of the Organisation of Working Time Act 1997 in the last 6 months.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

Findings and Conclusions:

No evidence has been adduced to substantiate this complaint.

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.

I find the complaint is not well founded as no evidence has been adduced to substantiate the complaint.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Background:

CA-000010393-019

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 22 of the Organisation of Working Time Act 1997 in the last 12 months.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and in March 2018. The Complainant is a non-national working in the company for over 10 years. He was promoted to Supervisor in the company.

The established test for deciding if an extension of time should be granted is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

I find that reasonable cause has not been shown for the delay in making this complaint and the complaint is dismissed as it is statute-barred.

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.

The Complaint is dismissed as it is statute barred.

The

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Background:

CA-000010393-020

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 15 of the Organisation of Working Time Act 1997 in the last 6 months in that he was required to work more than the maximum permitted weekly number of hours.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

The Respondent points to the failure of the Complainant to furnish specifics of the alleged breaches. The Respondent says the Complainant as Supervisor is responsible for organising his rosters and scheduling staff. The Complainant is responsible for productivity of staff and breaks. The Respondent accepts there were some occasions (10 to 12) where there were breaches of S15 of the Act by 1 hour but says the Complainant was responsible for this.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and in February 2018.

No evidence has been adduced of the dates of the specific breaches by the Complainant. The Respondent accepts there were up to 12 breaches of the Act but says the Complainant as the Supervisor was responsible for arranging his rosters. This is disputed by the Complainant.

The Complainant’s job description states that he is responsible for all time off, allocation of staff, setting breaks and deciding how may persons are required to work.

I find there has been up to 12 breaches of the Act by the Respondent by 1 hour. I find the Respondent witness evidence consistent and credible and that the Complainant was responsible for the scheduling of his rosters. Given the responsibility of the Complainant for scheduling, I am not making any award of compensation for the breaches.

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.

The complaint is well founded but in the circumstances compensation is not awarded.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Exceeding maximum weekly working hours, scheduling rosters

Background:

CA-000010393-021

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 15 of the Organisation of Working Time Act 1997 in the last 12 months in that he was required to work more than the maximum permitted weekly number of hours.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit. There are no exceptional circumstances which would merit an extension of time.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

The Respondent points to the failure of the Complainant to furnish specifics of the alleged breaches. The Respondent says the Complainant as Supervisor is responsible for organising his rosters. The Respondent says the Complainant as Supervisor is responsible for organising his rosters and scheduling staff. The Complainant is responsible for productivity of staff and breaks.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and in February 2018.

The Complainant is a non-national working in the company for over 10 years. He was promoted to Supervisor in the company. He was responsible for scheduling staff and productivity.

The established test for deciding if an extension of time should be granted is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

I find that reasonable cause has not been shown for the delay in making this complaint and the complaint is dismissed as it is statute-barred.

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.

The complaint is dismissed as it is statute- barred.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Exceeding maximum weekly working hours, contribution as scheduling rosters

Background:

CA-000010393-022

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 17 of the Organisation of Working Time Act 1997 in the last 6 months in that he was not notified of overtime required in advance.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and in March 2018.

No evidence has been adduced of the dates of the specific breaches by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Failure to notify of overtime, evidence of overtime breaches

Background:

CA-000010393-023

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 17 of the Organisation of Working Time Act 1997 in the last 12 months in that he was not notified of overtime required in advance.

Summary of Respondent’s Case:

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and in March 2018.

The Complainant is a non-national working in the company for over 10 years. He was promoted to Supervisor in the company. He was responsible for scheduling staff, breaks and productivity.

The established test for deciding if an extension of time should be granted is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

I find that reasonable cause has not been shown for the delay in making this complaint and the complaint is dismissed as it is statute-barred.

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.

The complaint is dismissed as it is statute-barred.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Notification of overtime, reasonable cause to extend time

Background:

CA-000010393-024

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 11 of the Organisation of Working Time Act 1997 in the last 6 months in that he did not receive a daily rest break. This occurred when Complainant started work on Saturday mornings at 7m after the late shift finished on a Friday at 9pm. This was every second week. This breached the requirement for an 11 hour rest break in 24 hours. The Complainant says there were 12-15 breaches within the period.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been set out and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

The Respondent points to the failure of the Complainant to furnish specifics of the alleged breaches. The Respondent says the Complainant as Supervisor is responsible for organising his rosters, for productivity and scheduling. The Respondent admits there were 8 or 9 breaches of this requirement after the late shift during the period, but that it was the Complainant’s choice to carry out the work on Saturday mornings.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and in March 2018.

It is accepted there was a breach of the daily rest period when the Complainant was requested to attend work on a Saturday morning at 7am after a late shift ending at 9pm on Friday and this occurred on up to 9 occasions. This meant only 10 hours rest was provided to the Complainant. No evidence of additional breaches has been adduced by the Complainant.

I find this complaint is well founded.

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.

The complaint is well founded and I award 130 euro compensation for the breaches.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Failure to furnish daily rest period, evidence of breach of daily rest period

Background:

CA-000010393-025

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 11 of the Organisation of Working Time Act 1997 in the last 12 months in that he did not receive his daily rest break when working on Saturday mornings after a late shift on Friday evening.

Summary of Respondent’s Case:

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and in March 2018.

The Complainant is a non-national working in the company for over 10 years. He was promoted to Supervisor in the company. He was responsible for scheduling staff, breaks and productivity.

The established test for deciding if an extension of time should be granted is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

I find that reasonable cause has not been shown for the delay in making this complaint and the complaint is dismissed as it is statute-barred.

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.

The complaint is dismissed as it is statute-barred.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Daily rest period, reasonable cause to extend time

Background:

CA-000010393-026

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant claims a breach of Section 11 of the Minimum Notice and Terms of Employment Act 1973 that he did not receive his statutory minimum period of notice on termination of his employment or payment in lieu.

He was a Supervisor. He was employed from 3rd July 2006 and dismissed on 16th March 2017 due to gross misconduct. The Complainant drove a forklift and accidently lifted the blades which resulted in the platform becoming unstable. An incident occurred where another employee fell back off a platform on 9 March 2017. There was no injury to the employee. The Complainant worked on 11th March 2017 and reported for duty on 13 March 2017. He was called to a meeting and asked to admit that he had falsely reported what occurred. This did not comply with fair procedures. He was not notified in writing in advance of the allegations made nor did he have an opportunity to obtain legal advice or representation.

The Complainant accepts the incident was not reported correctly and he requested a subordinate to report the wheel broke off a machine instead. He clarified what occurred and signed a statement to confirm this. He was dismissed for gross misconduct on 16th March 2017 and did not receive any notice pay. He claims 4 week’s notice and additional holidays due for the notice period.

He notified the Respondent of this appeal by letter to their registered office on 22 March 2017, but no appeal was scheduled within 7 days in accordance with the disciplinary policy.

He obtained another job within 3 weeks at a lesser salary.

Summary of Respondent’s Case:

The Respondent dismissed the Complainant summarily and therefore no notice was given. He was dismissed in accordance with his contract of employment due to gross misconduct following an investigation.

An incident occurred on 9th March 2017 on a platform when a member of staff became unbalanced due the Complainants operation of a fork-lift. A member of staff fell back off the platform and the Complainant requested a member of staff to falsely report what occurred. The Company suspended the Complainant on 13 March 2017 and investigated the incident. He was told to go home and requested to return on 15 March 2017. He gave an account of what happened on 15th March 2017 and a statement was prepared for him. He was requested to consider this overnight and on 16 March 2017 he signed the statement. He admitted he falsely reported what occurred, that he had lied and tried to cover up the incident. It was a serious incident and a breach of Health and Safety. It was a difficult decision for the Company, but they were concerned about the false reporting. The Complainant was dismissed for gross misconduct and he was notified of his right of appeal.

A notice of appeal was received by the Company on 22 March 2017 and they sought grounds of the appeal by letter of 25 May 2017 to the Complainant. No grounds of appeal were received as required by the Company disciplinary policy to allow the appeal hearing to be rescheduled.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and furnished subsequently in February 2018.

The Complainant was a Supervisor with the Company since 2014. He was responsible for the safe and efficient running of the Steel line and the health and safety of a number of staff working on the Steel line.

An investigation was carried out into the incident which occurred on 9th March 2018 by a Director. The Complainant confirmed that his initial report of the incident was not true and he instructed a subordinate to support the initial report which was untrue. The Complainant subsequently clarified to the Company what occurred. The evidence of the Respondent Director was that the Complainant was given an opportunity to consider overnight his draft statement admitting the misconduct and the Complainant did not sign this until 16 March 2017. The accident was serious and was a near miss that could have resulted in a serious injury to staff. It was extremely serious breach of trust that the Complainant who was the Supervisor did not report this correctly and the request he made of his subordinate particularly as he is a Supervisor. The Complainant was dismissed as Supervisor due to his conduct in not reporting the incident correctly, and his failure to comply with his duty of care for the Health and Safety of staff. He was dismissed for gross misconduct without notice on 16 March 2017.

The Complainant was notified of his right of appeal. The Complainant served a Notice of Appeal. The appeal hearing to be scheduled within 7 days of the grounds of appeal being furnished. The Company wrote to the Complainant on 25th May 2017 2 month’s later seeking grounds of appeal from the Complainant. No grounds of appeal were furnished to the Respondent and the appeal was not scheduled.

The Complainant’s signed contract of employment provides at page 5 that “Certain serious breaches of Company rules, custom or practice may result in your being dismissed without notice or pay in lieu of notice”.

S 8 of the Minimum Notice and Terms of Employment Act 1973 provides that nothing in the Act shall affect the right of an employer to terminate a contract without notice because of misconduct by the other party.

I find there was serious misconduct admitted by the Complainant which caused significant and legitimate concern about his conduct as Supervisor and in the circumstances, the Respondent was entitled to dismiss without payment of notice.

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.

The complaint is not well founded and the Respondent is entitled to dismiss without notice in all the circumstances.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Background:

CA-000010393-027

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant says the statement furnished under the Act breaches Section 3(1)b of the Terms of Employment (Information) Act 1994. The Complainant received his Terms and Conditions of Employment on 1st August 2008 and signed this.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

The Respondent points to the failure of the Complainant to furnish specifics of the alleged breaches. The Respondent says the complaints are out of time as the terms and conditions of employment were furnished when the Complainant commenced employment over 10 years previously and there are no exceptional grounds to allow an extension of time.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and in February 2018.

The Complainant is working in the company for over 10 years. He was promoted to Supervisor.

He received his terms and conditions of employment back in 2008 when he commenced employment and the complaint made is that terms and conditions received are defective and not in compliance with S3 (1) b of the Act. The Respondent says these complaints are statute-barred as they were received years previously and there are no exceptional circumstances to allow time to be extended in the case.

I am cognisant of the terms of Directive 91/533/EC and purpose of this which is to inform employees of the essential elements of the employment relationship within 2 months and any change in the main terms of the contract must be communicated to employees in writing within 1 month. In addition members states of the EU must adopt legislation to ensure compliance with the purpose of the Directive so that employees who consider themselves wronged by failure to comply with these obligations can pursue their claims by judicial process.

S41 (6) of the Workplace Relations Act 2015 provides that an Adjudication Officer shall not entertain a complaint referred to him or her under this section if “it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

I have considered the Labour Courts Decision in Seclusion Properties v O’ Donovan (DWT14114) which interprets the Act in a purposive manner in line with the Directive where the terms and conditions of employment were not furnished by an employer within 2 months of the employee’s employment and ADJ-00009820 which found there is a subsisting breach of S3 of the Act in these circumstances. It follows that there is a continuing obligation on an employer to provide details of the essential elements of the employment contract in line with Article 2 of the Directive. There is also a requirement to furnish these even after the employment relationship has concluded under the Act.

Section 41 of the Workplace Relations Act 2015 empowers an Adjudication Officer as part of the remedies for a complaint of breach of Section 3 of the Terms of Employment (Information) Act to declare a complaint well founded or not, and either to confirm any or all of the particulars contained in the statement provided by an employer under Section 3, or alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement so altered or added to shall be deemed to have been given to the employee by the employer, require the employer to give or cause to be given to the employee a written statement containing such particulars as may be specified by the Adjudication Officer, and order compensation which is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration in respect of the employee’s employment.

In addition, S5 of the Act provides there is an obligation on the employer to provide a statement of the essential terms of employment for each employee in writing within 1 month after the changes take effect where there are changes of particulars required under S3, 4 and S6 of the Act. It follows that where particulars required under S3 of the Act are omitted by an employer or are incorrect, in order to comply with the Directive to guarantee the provision of essential information to employees this must be a continuing obligation to allow the Directive apply and be effective under Irish law. The contravention of S3 of the Act is subsisting and if an incorrect or non compliant statement is provided by an employer, and this is not corrected during employment, the employee may refer a complaint within 6 months of the last day of contravention (of the last day of employment).

I find this complaint is not statute-barred.

The Complainant complains that S3(1) b is not complied with however, the statement of terms provided clearly sets out the principal place of business of the employer in the State.

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.

The complaint is not well founded.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

Complaint under s 3(1)b furnishing incorrect terms and conditions, interpretation, application of Directive,

Background:

CA-00010393-28

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant received a statement of his terms and conditions of employment on 1 August 2008. He says the statement does not comply with Section S3(1) d of the Terms of Employment (Information Act) 1994.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence and are out of time. The alleged contraventions happened over 6 months ago and there are no exceptional circumstances to be considered.

The Complainant was provided with a statement of his terms and conditions and if there was any deficiency it was minor in nature and of no practical consequence. The Complainant has suffered no detriment, and relies on the decision in Grant Engineering (Ireland) unltd v Denis Delaney (TED1728) and Patrick Hall v Irish Water (TE15/16) and that the claims are without substance and the De Minimus rule should be applied.

Findings and Conclusions:

I have already found in CA-00010393-27 that a complaint under S3 of this Act is not statute-barred as there may be a continuing breach, notwithstanding that the Complainant received his Statement of Terms and conditions in 2008, and updated terms on 19 April 2014.

The Complainant says that his terms and conditions of employment breach s3 (1)d of the Terms of Employment (Information) Act 1994 in that they do not specify the title of the job or nature of the work for which the employee is employed.

The terms dating back to 2008 are signed by the Complainant and he is described as a General Operative. The Complainant says this is too general a description and there are no details on the role which involved mainly painting and hanging materials. The addendum to the terms was furnished to him on his promotion to Supervisor, and describe his role as Steel Liner Supervisor and the nature of his role.

I find the Statement of Terms and Conditions set out the Complainant’s title.

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.

The Complaint is not well founded as the Statement of Terms and Conditions clearly set out the Complainant’s title.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

S 3 (1) d of the Terms of Employment (Information) Act 1994, description of title and nature of role

Background:

CA-00010393-29

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant received a statement of his terms and conditions of employment on 1 August 2008. He says the statement does not comply with Section S3(1) k of the Terms of Employment (Information Act) 1994 and should give more specific detail.

Summary of Respondent’s Case:

Findings and Conclusions:

I have already found in CA-00010393-27 that a complaint under S3 of this Act is not statute-barred as there may be a continuing breach, notwithstanding that the Complainant received his Statement of Terms and Conditions in 2008, and updated terms on 19 April 2014.

The Complainant says that his terms and conditions of employment breach s3 (1) k of the Terms of Employment (Information) Act 1994 in that they do not set out any terms and conditions relating to incapacity for work due to sickness or injury and paid sick leave, and pensions and pension schemes.

The terms set out at page 2 a section on Sick Pay, however, this does not state whether the Complainant’s sick-pay is paid or unpaid for sickness or injury, nor are the terms of provision in relation to pension nor any pension scheme set out.

I find the Statement of Terms and Conditions do not comply with the s3( 1)k) of the Act.

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.

The Complaint is well founded and I award the Complainant 130 euro compensation for the breach of S3 (1) k of the Act.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

S 3 (1) k of the Terms of Employment (Information) Act 1994, details of paid sick-leave for sickness and injury, details of pension and pension scheme omitted.

Background:

CA-00010393-30

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant received a statement of his terms and conditions of employment on 1 August 2008. He says the statement does not comply with Section S3(1) l of the Terms of Employment (Information Act) 1994 and should refer to the minimum notice that should be given to an employee.

Summary of Respondent’s Case:

Findings and Conclusions:

I have already found in CA-00010393-27 that a complaint under S3 of this Act is not statute-barred as there may be a continuing breach, notwithstanding that the Complainant received his Statement of Terms and Conditions in 2008, and updated terms on 19 April 2014.

The Complainant says that his terms and conditions of employment breach s3 (1) l of the Terms of Employment (Information) Act 1994 as they do not set out the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employees contract of employment or where this cannot be indicated when the information is given, the method for determining such periods of notice.

The terms set out at page 4 that the employee is required to give 1 week’s notice to the employer and the employee is entitled to 1 week’s notice from the employer on termination.

I find the Statement of Terms and Conditions comply with the s3(1) l of the Act.

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.

The Complaint is not well founded as the statement of Terms and Conditions clearly set out the period of notice to which the Complainant and Employer is entitled to on termination.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

S 3 (1) l of the Terms of Employment (Information) Act 1994, details of notice from employer and employee on termination in contract

Background:

CA-000010393-031

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant says the statement furnished under the Act breaches Section 3(1)g of the Terms of Employment (Information) Act 1994. The Complainant received his Terms and Conditions of Employment on 1st August 2008 and signed this.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and in February 2018.

The Complainant is working in the company for over 10 years. He was promoted to Supervisor.

He received his terms and conditions of employment back in 2008 when he commenced employment and the complaint made is that terms and conditions received are defective and not in compliance with S3 (1)g of the Act. The Respondent says these complaints are statute-barred as they were received years previously and there are no exceptional circumstances to allow time to be extended in the case.

I have previously found in CA-000010393-027 that complaints under S3 of the Act are not statute-barred.

The Act requires at S3 (1) g that the rate or method of calculation of the employee’s remuneration and pay reference period for the purposes of the National Minimum Wage Acts 2000-2015 be set out in the terms and conditions furnished. The hourly rate paid to the employee initially set out in the terms and conditions is 9.70 euro paid weekly. The total hours to be worked every week are not set out. The Complainant’s payslip specifies his hourly rate of basic pay is for 39 hours throughout the period of employment which was in excess of minimum wage.

I find the complaint is not well founded as the Complainant was always aware of his hourly rate of pay which was in excess of minimum wage at all times.

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.

I find the complaint is not well founded.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

S3 1 g of act, rule, hourly rate of pay

CA-000010393-032

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant says the statement furnished under the Act breaches Section 3(1) ga of the Terms of Employment (Information) Act 1994. The Complainant received his Terms and Conditions of Employment on 1st August 2008 and signed this.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and on 2nd and 24 February 2018.

The Complainant is working in the company for over 10 years. He was promoted to Supervisor.

He received his terms and conditions of employment back in 2008 when he commenced employment and the complaint made is that terms and conditions received are defective and not in compliance with S3 (1)ga of the Act. The Respondent says these complaints are statute-barred as they were received years previously and there are no exceptional circumstances to allow time to be extended in the case.

I have previously found in CA-000010393-027 that complaints under S3 of the Act are not statute-barred.

There is no reference contained in the terms and conditions furnished to the employee that an employee may pursuant to S23 of the National Minimum Wage Act 2000 request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period falling within 12 months preceding the request. The Complainant’s hourly rate of pay is set out in his terms and conditions furnished and on his payslips, so there is no necessity for him to request an average of his pay and any request by him to do so would fall under S23 (2) of the National Minimum Wage Act 2000 which is a frivolous or vexatious request.

There is no breach of the National Minimum Wage Act 2000 as amended.

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.

This complaint is not well founded.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

S23 of the National Minimum Wage Act 2000, hourly rate of pay

CA-000010393-033

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant says the statement furnished breaches Section 5 of the Terms of Employment (Information) Act 1994 as his rate of pay changed and this was not notified in writing to the employee. The Complainant received his Terms and Conditions of Employment on 1st August 2008 and signed this.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and on 2nd and 24 February 2018.

The Complainant is working in the company for over 10 years. He was promoted to Supervisor.

He received his terms and conditions of employment back in 2008 when he commenced employment and the complaint made is that changes in his rate of pay should have been notified to him in writing within 1 month of his promotion in 2014 in compliance with S5 of the Act.

The Respondent says these complaints are statute-barred as the increases were received years previously and there are no exceptional circumstances to allow time to be extended in the case. His payslips set out his hourly rate of pay increases and there was no detriment caused to the employee.

Employers are required to notify of changes within 1 month in writing in accordance with S5 of the Act. In addition, S41 (6) of the Workplace Relations Act 2015 provides that complaints of a breach shall not be entertained if the complaint is presented after 6 months beginning on the date of contravention to which the complaint relates. The last date of contravention took place in 2014 and the complaint is statute-barred.

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.

This complaint is statute-barred.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

S5 of the Terms of Employment (Information) Act 2004, changes to hourly rate of pay, statute barred

CA-000010393-034

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant says the statement furnished breaches Section 5 of the Terms of Employment (Information) Act 1994 as his position changed to Supervisor in 2014 and this was not notified in writing to the employee. The Complainant received his Terms and Conditions of Employment on 1st August 2008.

The Complainant disputes that he received the notice of the changes to his role as Supervisor and says it is for the Respondent to prove this.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

The Respondent points to the failure of the Complainant to furnish specifics of the alleged breaches. The Respondent says the complaints are out of time as the change in role took place in 2014 and there are no exceptional grounds to allow an extension of time.

The Respondent says a notice of the changes were furnished to the Complainant within the required period and produced a statement confirming the terms of appointment of the Complainant as Supervisor dated 19th February 2014. Evidence was also given of the additional duties of the Complainant as Supervisor.

Findings and Conclusions:

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.

The complaint is statute-barred.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

S5 of the Terms of Employment (Information) Act 1994, statute-barred

CA-000010393-035

The Complainant was employed with the company from 3 July 2006. He was a Supervisor. He was dismissed for gross misconduct on 16th March 2017.

Summary of Complainant’s Case:

The Complainant says the statement furnished breaches SI 49 of 1998 the Terms of Employment (Additional Information) Order as within 2 months of his employment particulars of the times and duration of rest periods and breaks referred to in S11, 12 and 13 of the Organisation of Working Time Act 1997 were not notified to him.

Summary of Respondent’s Case:

The Respondent disputes the claims of the Complainant which are vexatious, duplicate, the specific dates of alleged contraventions have not been made clear and are without merit.

The Respondent relies on the Investigation carried out by the WRC Inspectorate into alleged breaches which were not found in the preceding period.

The Respondent points to the failure of the Complainant to furnish specifics of the alleged breaches. The Respondent says the complaints are out of time the terms and conditions were furnished in 2008, and there are no exceptional grounds to allow an extension of time.

The Respondent says notice of the daily rest periods under S11 of the Act and S 13 are set out in the terms and conditions furnished to the Complainant. In addition a 15 minute and 30 minute break is provided for in the working day and no detriment was caused to the employee.

Findings and Conclusions:

I have heard the evidence submitted by the parties and considered the written submissions at the hearing and on 2nd and 24 February 2018.

The Complainant is working in the company for over 10 years. He received his terms and conditions of employment back in 2008 when he commenced employment.

The Respondent says these complaints are statute-barred as the statement was received 10 years previously and there are no exceptional circumstances to allow time to be extended in the case.

The statement of terms was received by the Complainant back in 2008, and as a result the complaint is statute-barred.

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.

The complaint is statute-barred.

Dated:

Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll

Key Words:

SI 49 of 1998 the Terms of Employment (Additional Information) 1998, statute

Background:

CA-00010393-38

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his public holiday entitlements in the last 12 months.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

The Respondent says all of the complaints made under the Organisation of Working Time Act 1997 should be disregarded as the specific dates of any alleged contraventions have not been made clear and are likely to be out of time.

Findings and Conclusions:

The complaint made is identical to that already made in CA-00010393-19 and has already been decided.

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.

I do not have jurisdiction to make a decision as the complaint has already been adjudicated upon in CA-00010393-19.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Lack of jurisdiction, complaint already adjudicated upon

Background:

CA-00010393-39

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 4/12/16-10/12/16.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

The Respondent relies on the ruling in Co Louth VEC v the Equality Tribunal and Pearse Brannigan as it is not able to adequately investigate or respond to the allegations made. It relies on the outcome of the recent inspection by WRC Inspector Nuala Breen which found no breaches of any of the examined legislation and samples of hours of work and payslips were reviewed. If the complaints are now found well founded this will undermine the inspection which has already taken place.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Evidence of complaints not adduced, complaints fail

Background:

CA-00010393-40

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 11/12/16-17/12/16.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-41

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 25/12/16-31/12/16.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-42

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 1/1/17-7/1/17.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-43

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 8/1/17-14/1/17.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-44

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 15/1/17.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-45

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 22/1/17-28/1/17.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-46

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 29/1/17-4/2/17.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-47

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 5/2/17-11/2/17.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-48

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 12/2/17-18/2/17.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-49

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 19/2/17-25/2/17.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-50

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 26/2/17-04/3/17.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-51

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant says he did not receive his breaks under S12 of the Organisation of Working Time Act 1997 in week 05/3/17-11/3/17.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

Evidence has not been adduced of the specific breaches alleged during this period by the Complainant.

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.

The complaint is not well founded as evidence of the specific breaches has not been adduced by the Complainant.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.

Background:

CA-00010393-52

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant is claiming a breach of S23 of the Organisation of Working Time Act 1997 in respect of annual leave in that he was not paid his full pay for the public holiday on 17 March 2017 to include his shift allowance and overtime.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

Findings and Conclusions:

The Respondent says all monies due for public holidays have been paid and letter of 20th March 2017 evidences this. The only payment that is in dispute is payment of shift allowance and overtime as part of public holiday pay.

The Complainant’s pay is calculated in accordance with Section 3 (2) of the Regulation as it is calculated wholly by reference to a time rate that does not vary. The shift allowance of 1.50 euro is payable to the Complainant every second week and I find that this is payable in respect of the public holiday.

In the week prior to 17 March 2017, the Complainant worked overtime and this is part of his normal pattern of work. The Complainant usually works on a Monday. Under section 5.1 of the Regulations the public holiday fell on a day which he ordinarily works and he should be paid for the normal daily hours which he worked on the last working day prior to the public holiday which was 9.5 hours and there was a shortfall of 1.5 hours pay.

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.

The complaint is well founded and the Complainant is entitled to payment of 23 euro remuneration and 50 euro compensation for the breach.

Dated: <<djei_decisionissueddate>>

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Payment of public holiday pay, shift allowance, overtime for public holidays

Background:

CA-00010393-53

The Complainant is a Supervisor and is employed with the Company since 3 July 2006. He was dismissed for gross misconduct on 16 March 2017.

Summary of Complainant’s Case:

The Complainant is claiming a breach of Sections 21 & 22 & 23 in respect of Public Holidays.

Summary of Respondent’s Case:

The Respondent says that the Complainant’s complaints are vexatious, duplicate, are grounded on assertions without any evidence.

The Complainant was paid for 17th March 2017 on termination.

Findings and Conclusions:

All complaints in respect of public holidays have been dealt with under CA-00010393-16 to-CA-00010393-19 and CA-00010393-52.

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.

The complaints in respect of public holidays are already decided under CA-00010393-16 to 19 and CA-00010393-52.

Dated: 13th June 2018

Workplace Relations Commission Adjudication Officer: Davnet O’ Driscoll

Key Words:

Complaint of breaches of S12 of the Organisation of Working Time Act 1997, evidence of specific breaches not adduced.