DWT1831

This is Mr Tomasz Warzycha’s (‘the Complainant’) appeal from a number of decisions of an Adjudication Officer (that each bear the claim reference number ADJ-00007789 and are dated 13 June 2018) under the Organisation of Working Time Act 1997 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 19 June 2018. The Court heard the appeal in Dublin on 24 September 2018.

The Complaint was employed by Sprint Coatings Limited (‘the Respondent’) (or a predecessor company) between 3 July 2006 and 16 March 2017 on which latter date he was summarily dismissed for gross misconduct.

Specific Complaints under the Act

The Complainant has appealed to the Court from the findings of the Adjudication Officer in respect of alleged breaches of the following sections of the Act: 11, 12, 15, 17, 19, 20, 22 and 23.

Section 11

Section 11 of the Act provides:

• “An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.”

The Court accepts that the breaches of section 11 as identified by the Complainant occurred. Responsibility for those breaches must be shared between the Parties, in circumstances, where the Complainant was obviously anxious to maximise his opportunities to work overtime. For that reason, the Court upholds the decision of the Adjudication Officer and affirms the award made by her.

The Complainant also sought an extension of time in respect of similar breaches that allegedly occurred prior to the six-month period identified above. His application for an extension of time was based on a claim of ignorance of the law. Ignorantia juris non excusat. Neither does ignorance of the law amount to reasonable cause for the purposes of extending the period for bringing a claim under the Act. The application is refused.

Section 12

Section 12 of the Act provides:

• “12. Rests and intervals at work

  (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

  (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

  (3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

  (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

The Complainant also sought an extension of time in respect of similar breaches that allegedly occurred prior to the six-month period comprehended by his principal claim in respect of section 12 of the Act. His application for an extension of time was based on a claim of ignorance of the law. Ignorantia juris non excusat. Neither does ignorance of the law amount to reasonable cause for the purposes of extending the period for bringing a claim under the Act. The application is refused.

Section 15

Section 15 of the Act provides:

• “15. Weekly Working Hours

  (1) An employer must not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

  • (a) 4 months, or

    (b) 6 months—

    • (i) in the case of an employee employed in an activity referred to in paragraph [3, points (a) to (e)] of Article 17 of the Council Directive, or

      (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or

    (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.
  (2) Subsection (1) shall have effect subject to the Fifth Schedule (which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).

  (3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.

  (4) A reference period shall not include—

  • (a) any period of annual leave granted to the employee concerned in accordance with this Act (save so much of it as exceeds the minimum period of annual leave required by this Act to be granted to the employee),

    (aa) any period during which the employee was absent from work while on parental leave, force majeure leave or carer's leave within the meaning of the Carer's Leave Act 2001,

    (b) any absences from work by the employee concerned authorised under the Maternity Protection Acts 1994 and 2004, or the Adoptive Leave Acts 1995 and 2005, or

    (c) any sick leave taken by the employee concerned.

  (5) Where an employee is employed in an activity (including an activity referred to in subsection (1)(b)(i))—
  • (a) the weekly working hours of which vary on a seasonal basis, or

    (b) as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature,

  then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court under section 24 may specify, for the purposes of subsection (1)(c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).”

The Respondent submits that the relevant period in respect of which the relevant average should be calculated is that which falls between week ending 4 December 2016 and week ending 19 March 2017. According to the Respondent’s calculation, the Complainant worked on average 42.875 hours per week during that period.

The Court finds that neither submission with regard to the period to be considered is accurate. However, taking the Complainant’s case at its height and using the figures supplied by the Complainant’s representative, it seems to the Court that the Complainant worked an average of 48.04 hours per week during the sixteen-week period beginning on 11 November 2016 and ending during week beginning 4 March 2017. This being the case, the breach that results is a de minimis breach of section 15 of the Act. In the circumstances the Court does not award any compensation and the appeal fails.

The Complainant also sought an extension of time in respect of similar breaches that allegedly occurred prior to the six-month period comprehended by his principal claim in respect of section 15 of the Act. His application for an extension of time is not supported by any explanation of what reasonable cause he is seeking to rely on in support of that application. The application is accordingly refused.

Section 17

• Section 17 of the Act provides:

  “17. Provision of information in relation to working time

  (1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

  (2) 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 subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), 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, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.

  (3) If during the period of 24 hours before the first-mentioned or, as the case may be, the second-mentioned day in subsection (1) or (2), the employee has not been required to do work for the employer, the time at which the employee shall be notified of the matters referred to in subsection (1) or (2), as the case may be, shall be not later than before the last period of 24 hours, preceding the said first or second-mentioned day, in which he or she has been required to do work for the employer.

  (4) A notification to an employee, in accordance with this section, of the matters referred to in subsection (1) or (2), as the case may be, shall not prejudice the right of the employer concerned, subject to the provisions of this Act, to require the employee to start or finish work or, as the case may be, to work the additional hours referred to in subsection (2) at times other than those specified in the notification if circumstances, which could not reasonably have been foreseen, arise that justify the employer in requiring the employee to start or finish work or, as the case may be, to work the said additional hours at those times.

  (5) It shall be a sufficient notification to an employee of the matters referred to in subsection (1) or (2) for the employer concerned to post a notice of the matters in a conspicuous position in the place of the employee's employment.”

• “Claims under this section were lodged on 22/03/2017.

  As is evident from the records provided by the employer, the employee worked overtime i.e. in excess of 39 hours a week. It is claimed that no notification, as is required under this section, of this was furnished to the appellant. This is within 6 months of the claim being lodged.

  It is evident from the records that every week if not every day of any given week he worked overtime.

  The amount of hours the Appellant worked every week is provided in relation to a claim under Section 15. (sic)

  There is a claim for breaches that took place in the period outside of the six months and within 12 months of the claim being lodged.”

• “[T]he appellant was not ‘required’ to work any additional overtime hours; rather they were offered and accepted as overtime, and in many cases requested by the appellant themselves (sic). The appellant confirms he worked overtime most days in any given week. The Respondent contends that the appellant fails once more to produce specific evidence. The appellant was a Supervisor and fully responsible for hours worked, time off, allocation of staff, and setting breaks, not just for his staff but for himself.”

It appears to the Court to be common case between the Parties that the Complainant frequently worked overtime during the period comprehended by this complaint and that he was not expressly informed of the overtime arrangements at least twenty-four hours in advance. Nevertheless, there was no submission made to the Court that the Complainant ever objected to working such overtime on any occasion. It would appear, therefore, that he willingly acquiesced in the Respondent’s non-compliance with section 17(2) of the Act. The Court, therefore, determines that no compensation is payable, in all the circumstances, for the breaches of that subsection that by the Parties’ admission occurred.

The Complainant also sought an extension of time in respect of similar breaches that allegedly occurred prior to the six-month period comprehended by his principal claim in respect of section 17 of the Act. His application for an extension of time is not supported by any explanation of what reasonable cause he is seeking to rely on in support of that application. The application is accordingly refused.

Sections 19 & 20

There are two aspects to the complaint/appeal in respect of sections 19 and 20 of the Act: (a) the rate of pay used to calculate the Complainant’s wages during periods of annual leave did not include shift premium; and (b) the Complainant was not always paid in advance of taking his annual leave.

(a) The Respondent accepts that no shift premium was incorporated into the Complainant’s annual leave payments as “there is no contractual provision for any shift premia to be paid to the appellant”.

(b) The Respondent accepts that the Complainant was not paid in advance of taking his annual leave on 27 January 2016 because he had only requested the annual leave on the previous day. However, he was paid in full, it is submitted, the following week. In respect of the Christmas 2016/New Year 2017 period, the Respondent submits: “It has been company practice to pay holidays up to 31^stDec in advance before the company’s annual closure, and to pay New Year’s holiday in the week if falls after the company restarts. This had been a verbal agreement with staff as they were happy to include the early New Year holidays in the 1^stweek’s wage packet – didn’t want it all spent over Christmas shut down.”

Discussion and Decision

(a) An examination of the Complainant’s payslips submitted to the Court indicates that he was in fact - contrary to what the Respondent states in its submission – paid a shift premium of €1.50 per shift every second week. This shift premium was not reflected in all annual leave payments made to the Complainant. The Court awards compensation of €200.00 for this breach.

(b) The Court accepts that it is not logistically practicable for an employee to seek advance payment for annual leave which is not notified to his or her employer sufficiently in advance of the leave commencing. It follows that there was a technical breach of section 20(2), on a number of occasions, in the case of the Complainant. The Court awards compensation of €100.00 in respect of the totality of those technical breaches.

Sections 21, 22 & 23

(i) The Complainant alleges that he was not paid properly in two respects for public holidays that fell on 25 October 2016, 26 December 2016 and 1 January 2017: (a) he received payment for eight hours only and this “did not take into account the average hours worked”; and (b) the payment did not take account of the shift premium payable to the Complainant.

The Respondent does not address element (a) of this claim. In respect of (b) it, again, submits that “there is no contractual provision for any shift premia to be paid to the appellant”.

Having considered the Parties’ submissions, the Court finds that element (a) of this claim has not been made out. However, the payment for the public holidays in question should have reflected the shift premium payable to the Complainant. The Court finds that there was a shortfall in payment to the Complainant of €110.00 gross and directs payment of this amount to the Complainant together with compensation of €150.00 for the breach.

The Complainant also submits that he was entitled to a period of minimum notice which he did not receive as he was summarily dismissed. He further submits that this period of notice should be construed as working time for the purposes of the Act and that as a consequence he should be entitled to the benefit of the public holiday that fell in May 2017. The Complainant has not referred to any authorities in support of his novel submission which does not appeal to the Court to be consistent with the Act as drafted. This claim, accordingly, fails.

(ii) The Complainant also alleges that the Respondent breached section 23 of the Act in his case. That section provides as follows:

• “23. Compensation on cesser of employment

  (1)(a) Where—

  • (i) an employee ceases to be employed, and

    (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

  the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.

  (b) In this subsection—

  “relevant period” means—

  • (i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

    (ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

    • (I) the current leave year, and

      (II) the leave year immediately preceding the current leave year,

    (iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii)—
    • (I) the current leave year, and

      (II) the leave year immediately preceding the current leave year, or

    (iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii)—
    • (I) the current leave year, and

      (II) the 2 leave years immediately preceding the current leave year.]

  (2) Where—
  • (a) an employee ceases to be employed during the week ending on the day before a public holiday, and

    (b) the employee has worked for his or her employer during the 4 weeks preceding that week, the employee shall, as compensation for the loss of his or her entitlements under section 21 in respect of the said public holiday, be paid by his or her employer an amount equal to an additional day's pay calculated at the appropriate daily rate.

  (3) If an employee ceases to be employed by reason of his or her death, any compensation payable under this section shall be paid to the personal representative of the employee.

  (4) Where compensation is payable under subsection (2), the employee concerned shall, for the purpose of Chapter [12] of Part [2] of the Social Welfare (Consolidation) Act [2005] (which relates to unemployment benefit) and Chapter 2 of Part [3] of that Act (which relates to unemployment assistance), be regarded as not having been, on the public holiday concerned, in the employment of the employer concerned.

  (5) In this section “appropriate daily rate” and “normal weekly rate” mean, respectively, the appropriate daily rate of the employee concerned's pay and the normal weekly rate of the employee concerned's pay determined in accordance with regulations made by the Minister for the purposes of this section.”

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CR______________________
30 November, 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.