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-00014594-001

27/09/2017

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

CA-00014594-002

27/09/2017

The Complainant is a non-national who worked with the Respondent for a number of years as a cleaner and driver.

The Complainant says he was not paid a Sunday premium. He complains that following commencing his role in April 2014, he was transferred to the airport branch which was not agreed. There was also a change in his days from Monday to Friday to Monday to Sunday, and hours which he never agreed. He received a contract in January 2016 some 20 months after he commenced employment and contains many errors. He did not sign this as he did not accept the terms and notified the company of this.

The contract says:

“With regard section 14 of the Organisation of Working Time Act 1997 (Sunday work supplemental provisions) the employee accepts she is a shift worker with the Employer and at all times from the commencement date of employment, the employee is cognisant that the employee’s working hours have been taken into account in determination of her pay, the employee does not qualify for a Sunday premium by virtue of the fact that her shift is rostered for a Sunday.”

The Complainant’s second WRC complaint was made on 27 September 2017. He seeks an extension of time to make his complaint for a number of reasons. He was absent on sick-leave due to a stress illness from 10th October 2016 until 21 January 2017 when he resigned and he was not in a position to make a complaint during his period. In addition, he is non-national, does not have a legal advisor and is not aware of the Irish legal system. Also, he made a first complaint to the WRC within the required period against the Respondent for constructive dismissal and redundancy following his resignation. He thought his complaints about hours and pay would be dealt with at that hearing. However, the Adjudication Officer informed him as he made no complaint under the Organisation of Working Time Act 1997 she had no jurisdiction to hear the complaints.

The Respondent says the Complainant was employed from 27th April 2014 to 21st January 2017 when he resigned as he had found an alternative position.

They say the Complainant’s claim falls outside the time-limit provided in S41 of the Workplace Relations Act 2015 as the last date the Complainant worked for the Respondent was on 9th October 2016. The Complainant complained in relation to his shift cycle to the WRC and an investigation took place and there was a full audit of the Respondent’s work practices around this period.

The Complainant was not employed during the 6 months prior to submission of the complaint.

They say the Complainant must show reasonable cause for the failure to bring the complaint within the prescribed 6 month time-limit and rely on the ruling of the Labour Court in Salesforce.com v Alli Leech EDA 1615 when the Complainant in that case asserted medical grounds as the reason for the delay which was rejected.

In addition, the Respondent says the Complainant was aware of the WRC procedures as he made his complaint of constructive dismissal and redundancy in the correct time period. The Complainant considered his shift cycle may have contravened the Act in the summer of 2016, and he had access to the WRC advisory service and website. The fact he did not have a legal advisor does not negate his responsibility to submit all claims within the prescribed time period. In addition, a lack of knowledge regarding whether a person has a legal claim or the applicable time-limits has been previously held as not being reasonable cause for delay.

The Respondent says that the Complainant was initially paid an hourly rate of 8.65 per hour. In October 2015 the Complainant’s pay was increased to a rate of 10.00 euro per hour which included a Sunday premium.

The Complainant worked two Sundays 2nd and 9th October 2016 during the relevant 12 month period.

The Respondent accepts that no Sunday premium was paid to the Complainant on the 2 occasions and says this is in keeping with its policy that the hourly rate paid to the Complainant as a shift worker who was engaged to carry out a seven day week. It is specifically set out in the Complainant’s contract of employment that he accepts as a shift worker his working hours have been taken into account in determining his rate of pay and on that basis Sunday shift premium was not applicable on a Sunday, and the Complainant is aware of this.

I have considered the evidence from the parties and read the submissions and documents furnished.

The Complainant was employed by the Respondent from 27th April 2014 and resigned on 21st January 2017. Prior to his resignation, he was absent from 10th October 2016 until 21 January 2017 due to illness. The Complainant complains of contraventions of the Act and that he was not paid a Sunday premium. The last day on which he worked a Sunday was 9th October 2016. This complaint was lodged on 27th September 2017 over 11 months later.

S41 of the Workplace Relations Act 2015 provides;

(6) Subject to subsection (8) 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 contravention to which the complaint relates…..

(8) 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 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 Complainant suffered from a stress illness which was medically certified during the period 10th October 2016 to 21st January 2017 which contributed to the delay. He lodged his first WRC complaint of constructive dismissal and redundancy on 7th February 2017 within the prescribed period. He made a request for an investigation into his hours of work by an Inspector. He thought his complaint in relation to his hours would be dealt with the same time and did not have a legal advisor.

The Complainant received a contract of employment in compliance with the Terms of Information Act 1994 20 months after his employment commenced. This was given to him 3 months after he received a pay rise. The Complainant says he did not know he was entitled to a Sunday premium. The contract states the employee accepts he is a Shift worker, his working hours have been taken into account in determining his rate of pay and the employee does not qualify for a Sunday premium by virtue of the fact that his shift is rostered for a Sunday. The Complainant says he did not sign this as he did not agree with the terms and there are mistakes in the contract. The Complainant is a non-national and the contract of employment was not provided in his native language.

Normally, ignorance of the person’s legal rights, as opposed to the facts giving rise to the complaint cannot provide a justifiable excuse for the failure to bring the complaint within time. But there are special circumstances in this case, the Complainant made his first complaint to the WRC within 6 months of the breach but it did not deal with his complaints about his hours. He only became aware of this at the first WRC hearing. As a non-national the Complainant could not reasonably be expected to understand the nature or detail of his statutory entitlements or the process of vindication of these. The decisive criterion is reasonableness as set out in Rezmerita Limited v Wioletta Morkis Labour Court (DWT1017). When the Complainant was notified that his complaint regarding his hours would not be addressed by his first WRC complaint he then lodged his second WRC complaint. In the circumstances, I find there is reasonable cause to extend time in the case.

The Complainant worked on Sunday 2 October from 5am to 1pm and Sunday 9th October 2016 from 5am to 2pm within the applicable period.

S14 of the Organisation of Working Time Act 1997 provides where an employee is required to work on an Sunday (and the fact of his having to work on that day has not otherwise been taken account of in the determination of his pay) the employee shall be compensated by his employer by the payment of an allowance as is reasonable having regard to all the circumstances, or by increasing the employee’s rate of pay by such amount that is reasonable having regard to all the circumstances or granting the employee such paid time off as is reasonable having regard to all the circumstances or a combination of the above.

The onus of proof lies on the employer to demonstrate compliance with S14 of the Act. The Complainant was employed on an initial hourly rate of 8.65 euro per hour. His remuneration was increased to 10.00 euro per hour in October 2015 for a 7 day week. The rate of pay was unilaterally determined by the Respondent. The Complainant says this hourly rate did not provide compensation for a Sunday premium and he did not know he was entitled to a Sunday premium. The Complainant received a written contract of employment in January 2016 a few months after his pay rise in October 2015. The contract says the employee accepts he is a shift worker, his working hours have been taken into account in determining his rate of pay and he does not qualify for a Sunday premium by virtue of the fact that his shift is rostered for a Sunday. The employment contract which the Respondent relies on is unsigned and was provided some months after the Complainant’s payrise. This contract contains a number of mistakes. The Complainant did not sign and accept the contract of employment, and notified the company of this.

In order to demonstrate compliance with S14 of the Act, it is for the Respondent to show that the hourly rate contains an element intended to compensate the Complainant for the requirement to work on Sunday. This must be clearly discernible from the contract of employment or the circumstances surrounding the conclusion of the contract of employment as stated by the Labour Court Viking Security Ltd v Valent, DWT1489. The Respondent has not demonstrated compliance with S14 of the Act and I find the complaint is well founded.

I award 70 euro for economic loss and 150 euro for compensation for the breaches.

Reasonable cause, non-national, Sunday premium,

The Complainant says that he was not given a daily rest breaks in accordance with S11 of the Organisation of Working Time Act 1997 which provides that an employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of twenty-four hours which he or she works for his or her employer.

There was a change in his days from Monday to Friday to Monday to Sunday, and hours following the commencement of his employment which he never agreed. He received a contract in January 2016 some 20 months after he commenced employment and contains many errors. He did not sign this as he did not accept the terms.

The employment contract says:

“With regard section 6-13 of the Organisation of Working Time Act 1997, the employee accepts that her employment falls within the definition of the exemption set out in Statutory Instrument 21/1998 (Schedule 3.b.ii.- the Provision of Services at Harbour or Airport)”).

The Complainant says he was not working in the airport and was based across the road from the airport building. He does not have a Dublin Airport Authority Badge or Permit to drive in the airport. He says the statutory instruments does not apply to him as he is not wholly or mainly carrying on or performing the duties of the activity (operation of vehicle or other means of transport) concerned.

The Complainant’s claim was made on 27 September 2017. He seeks an extension of time to make his complaint.

The Respondent says the Complainant’s complaint falls outside of the statutory 6 month time limit and that reasonable cause has not been shown by the Complainant in order to justify an extension of time. The explanation that the Complainant believed that his complaints in relation to working hours would be considered with his unfair dismissal claim falls short of the standard required in order to justify an extension of time and the complaint should be dismissed.

The Respondent accepts that on Tuesday 27th September 2016 the Complainant finished his shift at 22 hours and recommenced work on 28th September 2016 at 5am and he did not receive 11 consecutive hours rest between the two shift cycles.

He had not worked on Monday and did not commence work until 13 hours on Tuesday. He received a 16 hour rest period after the shift on Wednesday.

The Respondent accepts on 8th October the Complainant did not receive 11 consecutive hours rest between his 2 shift cycles and received 7 hours rest prior to commencement of his next shift and when varying the shifts for the Complainant’s benefit that greater consideration should have been given to the Complainant’s shift pattern.

I have heard the evidence from the parties and have read the submissions and documents furnished.  

The Complainant’s complaint was lodged on 27 September 2017 and he has sought an extension of time to make his complaint. I have found there is reasonable cause to extend the time for a further 6 months to allow this complaint to proceed.

The Respondent accepts that on Tuesday 27th September 2016 the Complainant finished his shift at 22 hours and recommenced work on 28th September 2016 at 5am and he did not receive 11 consecutive hours rest between the two shift cycles and on 8th October 2016 the Complainant did not receive 11 consecutive hours rest between his 2 shift cycles and received 7 hours rest prior to commencement of his next shift.

It is for the employer to actively see to it that an atmosphere is created so that the minimum rest periods prescribed by Community law are observed which requires that the rest periods are actually scheduled and are observed as set out in Nolan Transport v Antanas DWT1117.

I find the complaint is well founded.

I award compensation of 150 euro.

Daily rest period, S14 of the Organisation of Working Time Act 1997, compensation for breach