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-00014876-001

2/Oct/20172/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014876-002

2/Oct/20172/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014876-003

2/Oct/20172/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014876-004

2/Oct/20172/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014876-005

2/Oct/20172/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014876-006

2/Oct/20172/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014876-007

2/Oct/20172/Oct/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014876-008

2/Oct/20172/Oct/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 a premium payment for working on Sundays.

The complainant did not receive a statement of her terms of employment which was in compliance with the legislation.

The complainant was paid a premium for shift working which included an element associated with Sunday working.

The complainant was issued with terms and conditions of employment when she commenced employment in 2008. In 2017 the respondent contracted for a full HR audit and have also worked in conjunction with the WRC in order to ensure compliance with the relevant legislation. Updated contracts and comprehensive staff handbooks had now been completed and would be issued to all staff shortly.

These complaints were heard in conjunction with the complaints contained in ADJ-00010982.

CA-00014876-001:

This is a complaint in regard to the non-payment to the complainant of a premium payment for Sunday working in breach of Section 14 of the Organisation of Working Time Act, 1997 (OWT). The evidence was that the complainant worked shifts and that one of the shifts that she worked each week was from 11pm on Sunday until 7am on Monday. In consequence, the complainant worked 1 hour per week on a Sunday for which she was due a premium payment. The respondent stated that they had always applied premium payments of up to 30% in excess of the basic rate of pay and that payment included a Sunday premium payment in line with the OWT Act. The respondent had only recently defined which portion of that premium payment was related to Sunday working. 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 to 12 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 applied. This specific complaint was received on 2 October 2017 and according to the submission relates to the previous 2 weeks only.

All the following complaints are in relation to claims that the respondent was in breach of elements of Section 3(1) of the Terms of Employment (Information) Act, 1994.   The subsection states:

An employer shall, not later than two months after the commencement of the employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

(followed by a list of the required particulars)

CA-00014876-002:

This complaint refers to a claim that the respondent was in breach of Section 3(1)(d) of the Act:

(d) the title of the job or nature of the work for which the employee is employed

Following submissions this complaint was withdrawn at hearing.

CA-00014876-003:

This complaint refers to a claim that the respondent is in breach of Section 3(1)(g) of the Act;

(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000.

The contract of employment issued to the complainant makes reference to a rate of pay but does not refer to the pay reference period as required by the Act.

CA-00014876-004:

This complaint refers to a claim that the respondent is in breach of Section 3(1)(ga) of the Act.

(ga) that the employee may, under Section 23 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 as provided by that section.

There is no reference in the complainant’s contract to this matter.

CA-00014876-005:

This complaint refers to a claim that the respondent is in breach of Section 3(1)(j) of the Act.

(j) any terms or conditions relating to paid leave (other than paid sick leave)

There is no reference in the complainant’s contract to this matter.

CA-00014876-006:

This complaint refers to a claim that the respondent is in breach of Section3(1)(k) of the Act.

(k) any terms and conditions relating to –

        (i)   incapacity for work due to sickness or injury and paid sick leave, and

       (ii)   pensions and pension schemes

There is no reference in the complainant’s contract to these matters.

CA-00014876-007:

This complaint refers to a claim that the respondent is in breach of Section 3(1)(l) of the Act.

(l) 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 employee’s contract of employment or, where this cannot be indicated when the information is given, the method of determining such periods of notice.

The clause concerning notice in the complainant’s contract states:

“Either party may terminate employment by giving one week’s notice.”

This clause is clearly in contravention of the legislation regarding minimum notice.

CA-00014876-008:

This complaint refers to a claim that the respondent is in breach of S.I. No. 49 of 1998 – Terms of Employment (Additional Information) Order which requires an employer to “give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and any of the other terms and conditions relating to those periods and breaks.”

There is no mention in the complainant’s contract to these matters.

CA-00014876-001:

For the reasons outlined above I find this complaint to be well founded. Compensation in this regard, which is in relation to two weeks only, is included in the compensation awarded for similar breaches in ADJ-00010982.

CA-00014876-002 to 008:

For the reasons outlined above I find these complaints to be well founded. In considering compensation the respondent has pointed out that these breaches were of a technical nature and that no detriment was suffered by the complainant because of them. They also point out that they have engaged closely with the WRC inspectorate and have now produced comprehensive statements of employment and staff handbooks. In Determination DWT 188 (Merchants Arch Restaurants Company Ltd / Guerroro) the Labour Court considered a similar issue as follows:

“the Court finds that the Act imposes an obligation on an employer to provide a worker with basic information regarding the terms of their employment. The requirements set out in section 3 of the Act are not complex matters. A simple attention to detail would enable any reasonable person to comply with its terms. A failure to do so therefore requires a clear and understandable explanation as to why a worker has not been provided with such basic information about the terms under which he / she is employed.

No such explanation has been provided in this case. The respondent relies on the assertion that breaches were of a technical nature only and argues that the complainant suffered no adverse consequences arising out of its malfeasance.”

I accept that no evidence of detriment was presented to the hearing and the respondent provided a draft of the comprehensive statement of terms of employment and staff handbook that it is preparing to present to its employees. There is also a commitment to explain and discuss these documents with the workforce at the time of roll-out. On the other hand there were many shortcomings, as highlighted by the complainant, in the existing documentation. Taking everything into consideration I believe that an award of compensation is appropriate in the circumstances. I therefore order the respondent to pay to the complainant the sum of €1,000.00 for the infringement of the complainant’s rights in this regard. I also require the respondent to proceed with the issuing of the documentation to the complainant together with the appropriate consultation without undue delay.