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-00014161-001

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014161-002

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014161-003

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014161-004

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014161-005

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014161-006

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014161-007

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014161-008

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014161-009

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00014161-010

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00014161-011

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00014161-012

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00014161-013

21/Sep/201721/Sep/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015247-001

21/Sep/201719/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015856-001

21/Sep/201717/Nov/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015856-002

21/Sep/201717/Nov/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015949-001

21/Sep/201722/Nov/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016120-001

21/Sep/20174/Dec/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016120-002

21/Sep/20174/Dec/2017

The complainant is employed as a General Operative by the respondent which runs a manufacturing operation employing between 115 – 130 persons. The complainant commenced employment in March 2008 and works full-time.

The complainant did not receive her annual leave entitlement.

The complainant was not compensated for working on Sundays.

The complainant did not receive her Public Holiday entitlements.

The complainant was not notified of requirement to work additional hours.

The complainant was not paid for additional time worked for the respondent.

The respondent has made an unlawful deduction from the complainant’s wages.

The complainant has been paid less than the amount due to her.

The complainant works excessive night hours.

The complainant was threatened with dismissal after making complaints in relation to the Organisation of Working Time Act, 1997.

The complainant was issued with a statement of her terms and conditions of employment.

In 2017 the respondent contracted for a full HR compliance audit and have prepared comprehensive documentation in relation to updated contracts and staff handbooks.

Comprehensive payslips are provided and the respondent denies that it has made any unlawful deductions.

Some claims are outside the six-month time limit for submitting same.

The respondent denies that the complainant was victimised in any way for raising a complaint with the WRC.

The complainant did not raise any internal grievance in relation to these matters.

The respondent has paid a Sunday Premium but only recently specified which portion of the additional payments related to Sundays.

The respondent believes it has complied with the legislation regarding Public Holiday pay.

The respondent co-operated fully with a WRC inspection and complied with all requirements.

These complaints were heard in conjunction with the complaints contained in Complaint Form ADJ-00010989.

CA-00014161-001:

This complaint was stated to be a breach of Section 19 of the Organisation of Working Time Act, 1997 (OWT). The specific complaint is that the complainant’s pay for annual leave did not include any element attributable to a premium payment for Sunday Working.   The evidence was that the complainant worked shifts and that one of these shifts that she worked each week was from 11p.m. on Sunday until 7a.m. on Monday. In consequence, the complainant stated that she worked I hour per week on a Sunday for which she was due a premium and that premium should in turn be reflected in her pay for annual leave. The respondent in relation to Sunday premium payment stated that they had always applied premium payments of up to 30% in excess of the basic rate of pay, which has included a Sunday premium payment in line with the OWT, but only recently has specifically defined which portion of the additional payments related to Sunday work. In fact the response of the respondent was to restructure the shifts so as to eliminate any work on a Sunday and then include the following clarification in a staff circular:

“the additional allowance of €5 for working 11pm tom12 Midnight, which is built into the 30% Night Shift Premium, will not be deducted as a result of this change.”

The wording clearly indicates that the 30% premium is a night shift allowance and the decision not to withdraw it when Sunday working was eliminated tends to confirm this.   There is no evidence, therefore, that a Sunday premium payment applied. It follows that the calculation of annual leave payments did not include a Sunday premium.

CA-00014161-002:

This is a claim in relation to Section 20 of OWT Act. The complainant stated that the respondent was in breach of the legislation as she did not receive her annual leave pay in advance of taking holidays.     Section 20(2) of the Act states:

The pay in respect of an employee’s annual leave shall –

(a)    be paid to the employee in advance of his or her taking leave…

The complainant stated that she was paid weekly when she was on annual leave. The respondent said that employees can get their annual leave pay in advance if so required. It appears that payment in advance has to be specifically requested whereas that should be the default position with all payments being made in advance unless specifically requested otherwise by an individual employee. There was no evidence as to how the complainant was materially disadvantaged in this regard.

CA-00014161-003:

The complainant’s representative clarified at the hearing that this claim was linked to the previous claim and that it was an application for the extension of the time limit for lodging the particular complaint beyond the specified time limit of 6 months. Section 41(8) of the Workplace Relations Act, 2015, states:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The reason put forward for the application was that the complainant was a non-national whose mother tongue was not English and who therefore did not have full comprehension as to her legal entitlements. The Labour Court has considered the question of reasonable cause on a number of occasions. In DWT1720 (Morehampton Foods Ltd / Gibbons) the Court stated:

“It is clear from all the authorities and in particular the decision in Minister for Finance v Civil and Public Services Union and Others, that an application for the extension of time must both explain the delay and provide a justifiable excuse for the delay.   In this case the complainant’s explanation for the delay is, in effect, that he did not know what his statutory rights were until he consulted his present representative in December 2016. There is no suggestion that the complainant was unaware of the underlying facts about which he now complains. If, as the complainant contends (and the Court makes no finding on those contentions) he was required to work excessive hours without breaks and the other matters of which he complains occurred, he must have been aware of them at the time of their occurrence.

It appears to the Court that the complainant must at least suspected that the matters about which he now complains should not have been occurring. Yet, he raised no complaint with his employer and he delayed taking advice until December 2016…

The complainant’s state of knowledge, compounded by the respondent’s failure to provide him with all the information required by the Terms of Employment (Information) Act, 1994, is relied upon as the explanation for the delay. However, he must go further and show that, on an objective standard, the explanation proffered provides a justifiable excuse for the delay. In the Court’s view there is no basis upon which it could be concluded that the complainant has met that aspect of the test.   Accordingly, he cannot be granted an extension of time in which to present his claims.”

Many of the elements in that case are similar to the case before me and I am not satisfied that the complainant has shown reasonable cause for the application for the extension of time to succeed.

CA-00014161-004:

This is a complaint regarding the non-payment to the complainant of a premium payment when working Sundays. As outlined in CA-00014161-001 above the complainant worked for one hour each week on a Sunday. Section 14(1) of the OWT Act specifies that an employee required to work on a Sunday shall be compensated for so doing. For the reasons stated above there is no evidence that the respondent paid any premium in this regard.

CA-00014161-005:

This is an application for the extension of the time limit for presenting the complaint in CA-00014161-004 above from 6 to 12 months. For the reasons outlined in CA-00014161-003 I am not satisfied that reasonable cause exists for such an extension.

CA-00014161-006:

This complaint is in relation to a claim by the complainant that she did not receive her Public Holiday entitlements. The respondent for their part state that they believe that they have fully complied with legislation and cite the fact that a recent WRC inspection found no issue in this respect. Wage records were supplied for the hearing. The complaint form was submitted to the WRC on 21 September 2017.   In its submission the respondent stated specifically that they had complied with their obligations regarding 25/26 December 2017 and 1 January 2018 but these dates are after the submission of these specific complaints. The Public Holidays in question therefore are Easter Monday and the May, June and August holidays in 2017. In the wage slips presented to me I have not found a reference to a Public Holiday payment.  

CA-00014161-007:

This is an application for the extension of the time limit for presenting the complaint in CA-00014161-006 above from 6 to 12 months. For the reasons outlined in CA-00014161-003 I am not satisfied that reasonable cause exists for such an extension.

CA-00014161-008:

This complaint is in relation to a claim that the respondent is in breach of Section 17 of the OWT Act. Specifically it is claimed that the complainant can be required to work 3 to 10 minutes beyond the notified finishing time in order to complete a task. This refers to the time that the complainant clocks out after finishing a shift. The respondent stated that such small delays were the norm and could arise from the person finishing the shift having a conversation with the person taking over from them. It was also stated that the complainant could be requested to work an extra shift at short notice. The respondent’s response was that it was optional for the complainant to work in such circumstances and that she could refuse to do so. The respondent estimated that this would have occurred about 10 times in a period of 6 months. Section 17(2) of the Act states:

If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this section referred to as “additional hours”), the employer shall notify the employee, subject to subsection3, at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours…”

It is clear that this Section refers to work that the employee is required to do rather than, as in the case before me, work that the complainant was requested to do and which could be refused.  Likewise I do not believe that the additional few minutes which can elapse between the stroke of finishing time and the actual clocking out by the complainant constitute a breach of this section.

CA-00014161-009:

This is an application for the extension of the time limit for presenting the complaint in CA-00014161-008 above from 6 to 12 months. For the reasons outlined in CA-00014161-003 I am not satisfied that reasonable cause exists for such an extension.

CA-00014161-010:

This is a complaint that the respondent is in breach of Section 5 of the Payment of Wages Act, 1991, insofar as the complainant was not paid in respect of the extra time worked in the circumstances outlined in CA-00014161-007 above, i.e. working beyond the specified finishing time. In most work places the requirement is that an employee is required to be on the floor and ready to commence work at starting time and likewise remains on the floor until finishing time has been reached. In order to do this the clocking times will usually happen a short time before commencement time and a short time after finishing time. I note that the complainant normally clocked in a few minutes before starting time. The respondent argued that with a shift change there is no financial benefit to the company if an employee stays late but that if for some business reason the employee is detained then payment can be claimed for that time. The respondent also pointed out that the complainant had never brought any of these matters to their attention. The original contract signed in 2008 simply specified a weekly rate of pay plus shift premium based on a 39-hour week. There is no mention of overtime and how it is accrued or paid. The breach of Section 5(6) of the Act would occur if the total amount of wages that were paid to the complainant on any occasion is less than the total amount of wages that are properly payable to the complainant on that occasion. On looking through the clocking records it is clear that for most weeks the extra minutes involved are not exceptional.   If they are exceptional there is the provision of claiming payment for them. The complainant never brought this issue to the respondent’s attention and I therefore cannot agree that there was a breach of the Act.

CA-00014161-011:

This appears to be a duplicate complaint of CA-00014161-10 and as such is dealt with above.

CA-00014161-012:

This is an application for the extension of the time limit for presenting the complaint in CA-00014161-010 above from 6 to 12 months. For the reasons outlined in CA-00014161-003 I am not satisfied that reasonable cause exists for such an extension.

CA-00014161-013:

This appears to be a duplicate complaint of CA-00014161-012 and as such is dealt with above.

CA-00015247-001:

This complaint relates to the non-payment of a premium for working on a Sunday. The claim form states that the complaint relates to “the last two weeks.” The form was received on 19 October 2017 and the issue is dealt with in CA-00014161-004 above.

CA-00015856-001:

This complaint again relates to the non-payment of a premium for working on a Sunday. The claim form was received on 17 November 2017.

CA-00015856-002:

This complaint is in relation to a claim that the respondent breached Sections 21 and 22 of the OWT Act in regard to the October Public Holiday in 2017. It is therefore an addition to the complaint contained in CA-00014161-006.

CA-00015949-001:

This is a complaint of penalisation under the OWT Act. This complaint was withdrawn at hearing.

CA-00016120-001:

This is a complaint in relation to a claim that the respondent is in breach of Section 16 of the OWT Act in that the number of hours worked by the complainant, a night worker, was in excess of those permitted under the Section. Section 16(2) of the Act states:

Without prejudice to Section 15, an employer shall not permit a night worker, in each period of 24 hours, to work –

(a)    in a case where the work done by the worker in that period includes night work and the worker is a special category night worker, more than 8 hours,

(b)    in any other case, more than an average of 8 hours, that is to say an average of 8 hours calculated over a period (hereinafter in this section referred to as a “reference period”) that does not exceed –

(i)                  2 months, or

(ii)                Such greater length of time as is specified in a collective agreement that for the time being has effect in relation to that night worker and which stands approved by the Labour Court under Section 24.

The complainant is a night worker (not a special category night worker)find that any breach within the meaning of the Act. The claim mainly relates to the extra time that it is claimed that the complainant works at the end of a shift. It should be recalled that the basic shift pattern is based on a 39-hour week as follows:

             Sunday – Wednesday   23.00 – 7.00 (4x8 hours)

               Thursday                           23.00 – 6.00 (7 hours)

Within those hours is a 30-minute break. I have examined the clocking records supplied to me and, having regard to all the circumstances, I do not believe that the respondent is in breach of the legislation in that regard. The other issue relates to the complainant being requested and agreeing to work an extra shift for which a premium rate applied. As noted the respondent stated that this may have occurred 10 times in six months. The legislation states that the onus is on the employer not to permit such a practice.   The complainant did not provide specific examples in this regard. The extra shift appears to consist of 7 hours including the 30-minute break.   Based on the evidence before me I find that any breach that may have occurred is minimal.

CA-00016120-002:

This is an application for an extension of the time limit for presenting the complaint in CA-00016120-001 above from 6 to 12 months. For the reasons outlined in CA-00014161-003 above I am not satisfied that reasonable cause exists for such an extension.

CA-00014161-001:

This complaint relates to the issue that a Sunday premium payment was not included in the calculation of annual leave pay. For the reasons outlined above I find this complaint to be well founded. Sunday working amounted to one hour per week.   I will take this matter into consideration when dealing with the general issue of Sunday premium payments in CA-00014161-004.

CA-00014161-002:

This complaint relates to the complainant not receiving her pay for annual leave in advance of same.   For the reasons outlined above I find this complaint to be well founded. The complainant did not present evidence as to how this breach detrimentally affected her. Moreover the complainant could have requested payment in advance. Having regard to all the circumstances I order the respondent to pay to the complainant the sum of €75.00 as compensation in this regard.

CA-00014161-003:

This is an application for the extension of the time limit for presenting a complaint and for the reasons outlined above I find this complaint not to be well founded and it fails accordingly.

CA-00014161-004:

This complaint relates to the non-payment of a Sunday premium for the one hour per week that the complainant worked on a Sunday. For the reasons outlined above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €200.00 (which includes consideration in respect of CA-00014161-001, CA-00015247-001, CA-00015856-001 which deal with the same issue) as compensation in this regard.   I have also taken into consideration a similar complaint, CA-00014876-001, presented as part of ADJ-00010989 as noted therein.

CA-00014161-005:

This application for the extension of the time limit is not well founded and therefore fails.

CA-00014161-006:

This complaint is in relation to a claim that the complainant was not in receipt of her Public Holiday entitlements. For the reasons stated above I find this complaint to be well founded.   Complaint CA-00015856-002 is a similar complaint in respect of the October holiday and is included in this decision. I order the respondent to pay to the complainant the sum of €500.00 as compensation in this regard.

CA-00014161-007:

This application for the extension of the time limit is not well founded and therefore fails.

CA-00014161-008:

This complaint relates to a claim regarding extra hours worked in breach of Section 17 of the OWT Act. For the reasons outlined above I find this complaint not to be well founded and it therefore fails.

CA-00014161-009:

This application for the extension of the time limit is not well founded and therefore fails.

CA-00014161-010:

For the reasons stated above I do not find this complaint to be well founded and it therefore fails.

CA-00014161-011:

This appears to be a duplicate complaint to CA-00014161-010 and therefore fails.

CA-00014161-012:

This application for the extension of the time limit is not well founded and therefore fails.

CA-00014161-013:

This appears to be a duplicate complaint to CA-00014161-012 and therefore fails.

CA-00015247-001:

This complaint is a further claim in relation to the issue of a Sunday premium payment. For the reasons given in relation to complaint CA-00014161-004 I find this complaint to be well founded and the matter of compensation is encompassed in the decision regarding CA-00014161-004.

CA-000015856-001:

This is another complaint in relation to the issue of a Sunday premium payment. For the reasons given in relation to complaint CA-000014161-004 I find this complaint to be well founded and the matter of compensation is also dealt with in the decision regarding CA-00014161-004.

CA-00015856-002:

This is another complaint in relation to in relation to Public Holiday entitlements but which is specific to the October 2017 holiday. For the reasons outlined in CA-14161-006 I find this complaint to be well founded. The matter of compensation is dealt with in the decision pertaining to CA-00014161-006.

CA-00015949-001:

This complaint in relation to penalisation was withdrawn at hearing.

CA-00016120-001:

This is a complaint in relation to the working hours of the complainant as a night worker. As outlined above and based on the information provided I find the complaint well founded but not of an excessive nature. Having regard to all the circumstances I do not believe that the complainant suffered an appreciable detriment and therefore determine that no compensation is merited.

CA-00016120-002:

This application for an extension of the time limit is not well founded and therefore fails.