ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012004

Parties:

	Complainant	Respondent
Anonymised Parties	Chef de Partie	A Hotel

Representatives

Niamh Daly HR Executive 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-00015834-001	16/11/2017

Date of Adjudication Hearing: 13/02/2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.

In particular, the Complainant herein has referred one complaint:

The Complaint herein relates to a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 14 of the act which provides for compensation for working on a Sunday and provides for a number of ways in which the compensation can be calculated including the payment of an allowance, an increased rate of pay or paid time in lieu.

Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:

Declare the complaint was or was not well founded;
Require the Employer to comply with the relevant provision;
Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.

The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.

Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Background:

The Complainant commenced employment as a chef with the Respondent Hotel in 2012. The Contract of Employment specified an hourly rate of pay, and the it is stated in the Contract that the then rate of pay (€12.00) includes a Sunday premium. In January 2017, the Employer purported to change the way in which the Employee would be paid. The Employer opted to differentiate between normal working hours and Sunday hours. This was at a time when the National Minimum wage was being increased and implemented in the workplace.

Summary of Complainant’s Case:

The Complainant gave evidence on his own behalf. As outlined in his Workplace Relations Complaint Form, he was advised by a circular presented towards the end of 2016 that the company was moving away from the “composite” structure and was seeking instead to identify a specified Sunday Premium.

The Complainant said that the change in his wage slips from the beginning of January 2017 was such that he believed that on his calculations that he had not been adequately paid for the Sunday hours which he had worked heretofore i.e from the commencement of his employment in 2012 to the end of 2016.

The Complainant’s workplace relations complaint form issued in November 2017 – some 11 months after the new rates of pay had been implemented.

Summary of Respondent’s Case:

The Respondent provided me with written submission as well as an oral presentation. The Company submits that it’s manner of paying for Sunday allowance through the use of a composite figure arrangement is not irregular. The Company claims that the Complainant is not at any loss.

The Company had made a decision to maintain the composite figure as it’s new standard hour figure with an additional premium now being applied to those hours worked on a Sunday. This decision was made so as not to apply a reduction to the hourly figure that employees were familiar with.

In the circumstances, the Respondent says, the Complainant benefitted from an increased standard rate as well as an enhanced Sunday payment.

The Respondent pointed out that the Workplace Relations Complaint Form issued in November 2017 and that, on the face of it, the cognisable period of assessment was from the 15th of May 2017 – i.e. six months prior to the issuing of the Complaint Form. I have been invited to find that the case of C and F Tooling -v- Cunniffe DWT 15125 is applicable wherein the Labour Court affirmed that the cognisable period for the purpose of the claim ran for the six month period prior to the complaint.

The Respondent states that no reasonable cause has been shown to allow for any further extension of time and that the Complainant had raised no grievance and made given no indication of his intention to raise one.

Findings and Conclusions:

I have considered the facts and evidence adduced in the course of this hearing.

On balance I find that six months before the issuing of the Complaint herein (i.e. May 2017) there was no contravention of the Organisation of Working Time Act in relation to Sunday pay. I further must find on the evidence that there has been no contravention of the Organisation of Working Time Act on any date between the May and November of 2017. During this period of time the payslips quite clearly identify the normal working hours and the Sunday working hours with different rates of pay being applicable. The Complainant accepts this.

The Complainant’s case is that there was a contravention of the Act up to the end of 2016 – some 11 months before he issued his Workplace Relations Complaint Form. I do not have to make decision in this regard, as I am satisfied that in considering the wording of Section 41 of the Workplace Relations Act, 2015, I need only look at the six months immediately preceeding the complaint. I can look back a further six months if reasonable cause is shown but in this instance, the Complainant did not show any such reasonable cause.

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 claim brought under the Organisation of Working Time Act 1997 to be not well founded.

Dated:25th June 2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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