ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013761
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaning Operative | An Employment Agency |
Representatives |
| John Duggan Callan Tansey Solicitors |
Complaints:
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-00018145-001 | 21/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00018145-002 | 21/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00018145-003 | 21/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00018145-004 | 21/03/2018 |
Date of Adjudication Hearing: 03/09/2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
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 by the respondent in 2006. In 2012, the complainant changed from being employed as a General Operative working day shifts in Dublin to being a Cleaning Operative working Night Shifts in one of the respondent’s client sites in Drogheda. The complainant was paid €10.50 gross per hour. The complainant last worked for the respondent on 14th February 2018. The parties provided written submissions at the adjudication hearing. Further information was requested and was received on 15th October 2018. |
CA-00018145-001 Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
The complainant stated that he was not paid the agreed Sunday Premium when he changed from Day Shifts in Dublin to working Night Shifts in Drogheda in 2012. The complainant stated that he was told at a Meeting with the respondent at the time that he would be paid a Sunday Premium of twice the normal hourly rate of pay. The complainant stated that this was never implemented by the respondent. The complainant stated that the promise of a premium of twice the hourly rate of pay was witnessed by a friend/colleague who was also at the meeting. |
Summary of Respondent’s Case:
The respondent stated that there was never an agreement in place that a premium of twice the normal hourly rate of pay would be paid to the complainant. The respondent stated that the complainant was paid a Sunday premium of 1.5 times the normal hourly rate of pay in line with the terms of his employment. The respondent stated that it has complied with the provisions of the legislation in regard to the payment of a Sunday Premium. |
Findings and Conclusions:
The complainant submits that he was promised a Sunday Premium of twice the normal hourly rate of pay at a meeting in 2012. The complainant stated that this was witnessed by a friend/colleague who was unable to attend the adjudication hearing on this complaint. The respondent stated that it complied with the legislation in relation to the provision of a Sunday Premium. The Applicable Law Section 14(1) of the Organisation of Working Time Act, 1997 provides as follows: Sunday work: supplemental provisions. 14 (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely— (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs. In the instant case, the respondent has applied a Sunday Premium of 1.5 times the normal hourly rate of pay. I find that this Premium payment is reasonable and in compliance with the legislation. The complainant has been unable to prove the basis of his claimed entitlement to a Sunday Premium of twice the normal hourly rate of pay. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered the submissions of both parties to this complaint, I find that the complaint is not well founded. |
CA-00018145-002 Organisation of Working Time Act, 1997 (Hours of Work/Daily Rest
Summary of Complainant’s Case:
The complainant stated that he continuously worked hours in excess of the maximum weekly hours of work permitted and that he did not receive adequate daily rest breaks in contravention of the provisions of the legislation. The complainant outlined four occasions (28/01/2018, 24/12/2017, 5/11/2017 and 22/10/2017) where he did not receive daily rest breaks in compliance with Section 11 of the Organisation of Working Time Act, 1997. |
Summary of Respondent’s Case:
The respondent stated that it did not breach the legislation with respect to the maximum weekly hours of work. In respect of the daily rest breaks, the respondent claimed that the complainant received 11 hours rest between finishing one shift and beginning another shift on all but one occasion (24/12/2017) which was due to exceptional circumstances prevailing at the time. The respondent stated that it is exempt from the provisions of Section 11 of the legislation as the complainant is a shift worker and received compensatory rest in line with the provisions of the legislation. |
Findings and Conclusions:
The complaint was submitted to the Workplace Relations Commission on 21st March 2018. The cognisable period for the complaint is therefore from the 22nd September 2017 to 21st March 2018. Weekly working hours. The records supplied by the parties are difficult to reconcile on the basis that they appear to relate to different dates/weeks as well as differing on the total weekly hours worked by the complainant. In calculating the maximum weekly working hours, the Act provides for a refence period of four months. The respondent claims that it has not breached the legislation. From the records submitted by the respondent, the complainant last worked on 14th February 2018. I have taken a four-month reference period from 15th October 2017 until 14th February 2018. In that period, I have calculated that the complainant worked a total of 832.25 hours. The average number of hours per week for the period in question amount to 48.9 hours per week. Accordingly, I find that the respondent breached the legislation. The above calculation is based on the extensive records submitted by the respondent which allowed for a more comprehensive calculation of the hours worked throughout the reference period. Daily/ Weekly Rest periods On this issue, I find that the complainant was not provided with the required 11-hour break between shifts on four occasions. However, the respondent stated that as the complainant is involved in shift work, it is exempt from the provisions of Section 11 of the legislation. I accept the respondent’s position on this issue. The Applicable Law Section 4 of the Organisation of the Organisation of Working Time Act, 1997 provides as follows: 4(1) Without prejudice to section 6, section 11or 13or, as appropriate, both these sections shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to in section 11or 13or, as the case may be, both those sections. (2) Without prejudice to section 6, sections 11and 13shall not apply to a person employed in an activity (other than such activity as may be prescribed) consisting of periods of work spread out over the day. (3) Subject to subsection (4), the Minister may by regulations exempt from the application of section 11, 12, 13, 16or 17any activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or any specified class or classes of such activity, and regulations under this subsection may, without prejudice to section 6, provide that any such exemption shall not have effect save to the extent that specified conditions are complied with. (4) Where the Minister proposes to make regulations under subsection (3), the Minister shall consult with such persons as he or she considers to be representative of the employers and employees who, in the opinion of the Minister, are likely to be affected by the proposed regulations. (5) Without prejudice to section 6, if— (a) a collective agreement that for the time being stands approved of by the Labour Court under section 24, or (b) a registered employment agreement, provides that section 11, 12or 13shall not apply in relation to the employees to whom the agreement for the time being has effect, or a specified class or classes of such employees, section 11, 12or 13, as the case may be, shall not apply in relation to those employees or the said class or classes of such employees. (6) Without prejudice to section 6, an employment regulation order may include one or more provisions providing that section 11, 12 or 13 shall not apply in relation to the employees to whom the order relates or a specified class or classes of such employees. Compensatory rest periods. Section 6(1) and (2) provides as follows in relation to compensatory rest breaks 6 (1) Any regulations, collective agreement, registered employment agreement or employment regulation order referred to in section 4that exempt any activity from the application of section 11, 12or 13or provide that any of these sections shall not apply in relation to an employee shall include a provision requiring the employer concerned to ensure that the employee concerned has available to himself or herself such rest period or break as the provision specifies to be equivalent to the rest period or break, as the case may be, provided for by section 11, 12or 13. (2) Where by reason of the operation of subsection (1) or (2) of section 4, or section 5, an employee is not entitled to the rest period or break referred to in section 11, 12, or 13the employer concerned shall— (a) ensure that the employee has available to himself or herself a rest period or break, as the case may be, that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period or break, or (b) if for reasons that can be objectively justified, it is not possible for the employer to ensure that the employee has available to himself or herself such an equivalent rest period or break, otherwise make such arrangements as respects the employee’s conditions of employment as will compensate the employee in consequence of the operation of subsection (1) or (2) of section 4, or section 5. In all of the circumstances of this complaint, I find that the respondent breached Section 15 of the Organisation of Working Time Act, 1997 on the basis that the complainant worked in excess of the weekly maximum number of hours in a four-month reference period. I find that the respondent did not breach the legislation with respect to the provision of Daily Rest breaks. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered the submissions of both parties, I find that the complaint is well founded in part. The respondent is directed to pay the complainant €750 in compensation for the infringement of his rights under the legislation. Payment should be discharged to the complainant within 42 days of the date of this decision. |
CA-00018145-003 Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
The complainant stated that he did not receive weekly rest of 24 hours in contravention of Section 13 of the legislation. |
Summary of Respondent’s Case:
The respondent stated it is exempt from the provisions of Section 13 of the legislation as the complainant is employed at shift work and is provided with compensatory rest. The respondent provided records which detailed the compensatory rest periods provided to the complainant. |
Findings and Conclusions:
On the issue of weekly rest, I find as follows: The Applicable Law Section 4 of the Organisation of the Organisation of Working Time Act, 1997 provides as follows: 4(1) Without prejudice to section 6, section 11or 13or, as appropriate, both these sections shall not apply, as respects a person employed in shift work, each time he or she changes shift and cannot avail himself or herself of the rest period referred to in section 11or 13or, as the case may be, both those sections. (2) Without prejudice to section 6, sections 11and 13shall not apply to a person employed in an activity (other than such activity as may be prescribed) consisting of periods of work spread out over the day. (3) Subject to subsection (4), the Minister may by regulations exempt from the application of section 11, 12, 13, 16or 17any activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or any specified class or classes of such activity, and regulations under this subsection may, without prejudice to section 6, provide that any such exemption shall not have effect save to the extent that specified conditions are complied with. (4) Where the Minister proposes to make regulations under subsection (3), the Minister shall consult with such persons as he or she considers to be representative of the employers and employees who, in the opinion of the Minister, are likely to be affected by the proposed regulations. (5) Without prejudice to section 6, if— (a) a collective agreement that for the time being stands approved of by the Labour Court under section 24, or (b) a registered employment agreement, provides that section 11, 12or 13shall not apply in relation to the employees to whom the agreement for the time being has effect, or a specified class or classes of such employees, section 11, 12or 13, as the case may be, shall not apply in relation to those employees or the said class or classes of such employees. (6) Without prejudice to section 6, an employment regulation order may include one or more provisions providing that section 11, 12 or 13 shall not apply in relation to the employees to whom the order relates or a specified class or classes of such employees. Compensatory rest periods. Section 6(1) and (2) provides as follows in relation to compensatory rest breaks 6 (1) Any regulations, collective agreement, registered employment agreement or employment regulation order referred to in section 4that exempt any activity from the application of section 11, 12or 13or provide that any of these sections shall not apply in relation to an employee shall include a provision requiring the employer concerned to ensure that the employee concerned has available to himself or herself such rest period or break as the provision specifies to be equivalent to the rest period or break, as the case may be, provided for by section 11, 12or 13. (2) Where by reason of the operation of subsection (1) or (2) of section 4, or section 5, an employee is not entitled to the rest period or break referred to in section 11, 12, or 13the employer concerned shall— (a) ensure that the employee has available to himself or herself a rest period or break, as the case may be, that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period or break, or (b) if for reasons that can be objectively justified, it is not possible for the employer to ensure that the employee has available to himself or herself such an equivalent rest period or break, otherwise make such arrangements as respects the employee’s conditions of employment as will compensate the employee in consequence of the operation of subsection (1) or (2) of section 4, or section 5. In all of the circumstances of this complaint, I find that the complainant was a shift worker and the respondent was exempt from the provisions of Section 13 of the legislation and that in line with the provisions of Section 6 of the legislation the complainant received compensatory rest of equal value. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered the submissions of both parties to this complaint, I declare that the complaint is not well founded. |
CA-00018145-004 Terms of Employment (Information) Act, 1994
Summary of Complainant’s Case:
The complainant stated that he did not receive a copy of his Terms and Conditions of Employment when he commenced working for the respondent. |
Summary of Respondent’s Case:
The respondent stated that the complainant did receive a written copy of his terms and conditions of employment when he commenced his employment in 2006 and received an updated copy of his terms and conditions in 2008. The respondent stated that it had been the subject of a National Employment Rights Authority (NERA) inspection in 2008 and no issues of non-compliance were raised during that process. |
Findings and Conclusions:
The complainant stated in a signed translated memo on 25th January 2009 that he had received a contract of employment but after 30 days and not on the first day of employment as had been the case in previous employments. On that basis I find that the complainant did receive a written copy of his contract of employment. In 2012 the complainant’s terms and conditions of employment changed somewhat as his job title, location and pattern of attendance changed. The complainant’s representative stated in supplemental submissions that the complainant did not receive an updated contract of employment at that time. The Applicable Law Section 5 of the Terms of Employment (Information) Act, 1994 states as follows: 5.(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) 1 month after the change takes effect, or (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure. There was no evidence put forward by the respondent that it complied with the legislation in respect of the changes that occurred to the complainant’s employment in 2012. Accordingly, I find that a breach of the legislation has occurred. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered the submissions of both parties, I declare that the complaint is well founded. The respondent is directed to pay the complainant €819.00 (two week’s gross pay) in respect of the complaint. Payment should be discharged to the complainant within 42 days of the date of this decision. |
Dated: 20th November 2018
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Daily rest, Weekly rest, Maximum weekly working hours, Terms and Conditions of employment. |