Complainant

Respondent

Anonymised Parties

A Parking Host

Parking Service Provider

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00017885-001

12/03/2018

This is a complaint under the Payment of Wages Act, 1991. The complainant was employed by the respondent as a parking host on the 30th of June 2017. He worked between 40 to 48 hours per week and he was paid €10.60 per hour plus overtime for any hours in excess of 42.  His employment was terminated on the 28th of September 2018.  The complainant is claiming he is entitled to payment in lieu of notice, holiday and public holiday pay and overtime.

The complainant said that his employment was terminated without notice on the28th of September 2017 and the respondent paid him one week’s notice of €424.00.   In calculating his payment in lieu of notice, the respondent failed to take into account overtime payments which would bring his average hourly rate of pay to €11.82 and therefore he is owed a balance of €98.31 in respect of notice.

The complainant stated that he is owed a sum of €105.01 in respect of the Public Holiday on the 5th August 2017. He said that he worked the Public Holiday and was not paid the premium rate.

In respect of annual leave, he said that he was paid 26.5 hours holiday money on the termination of his employment but he believes he is entitled to be paid for 51.18 hours.  In addition, he states that his holiday pay should have been calculated at the average rate of pay of €11.82 which includes overtime.  Therefore, the outstanding amount due to him €314.24.

In relation to overtime the complainant submits that the respondent failed to pay him for all the overtime he worked. He said that he worked a total of 65 hours overtime but the respondent only paid his for 17 hours.  He said that if he worked over 42 hours he was entitled to overtime. However, if he worked six days in a week including a Sunday he was not paid overtime. He states that he is owed €294.38 in respect of overtime.

Time Limits

The respondent said that the complainant was dismissed on the 28th of September 2017.  It is accepted that he is owed outstanding holiday pay and the payment of 6 hours pay in respect of his last day in the employment.  Otherwise the complainant has been paid all the monies due to him.

As a preliminary argument the respondent submitted that there are statutory time limit issues with the complaint.  The complaint was received by the WRC on the 12th of March 2018 and they submit that the relevant period for investigation is the period between the 13th of September 2017 and the 12th of March 2018. The respondent submitted that any alleged contraventions of the Act prior to the 13th of September 2017 is outside the scope of the investigation as the complainant must refer a complaint within 6 months “beginning on the date of the contravention to which the complaint refers” as provided for in Section 6(4) of the Payment of Wages Act 1991

I was referred to the High Court Judgment in the case of Moran v Employment Appeals Tribunal and HSE [2014] IEHC 154 in which Justice Keane interpreted the application of S. 6(4)     

Substantive Claims

The respondent submitted that the complainant worked 539 hours between the commencement of the employment and the 28th of September 2017 and the complainant’s claim that he worked 553 hours is not correct.  The respondent accepts that the complainant is entitled to be paid for the 28th of September the date he was dismissed as he was scheduled to work for a full day.  He was paid for 1 hour therefore there 6 hours pay is due to him.

In relation to holiday pay the respondent submits that the complainant is not entitled to 51.18 hours holiday pay. He worked 539 hours for the period he was in their employment.  He cannot claim the 40 hours he was paid in lieu of notice as time worked for the purposes of calculating holidays.

In line with the Organisation of Working Time Act, the complainant was entitled to 43.1 hours holiday pay based on 8% of 539 hours worked on the termination of the employment.  He was paid for 26.5 and therefore there is outstanding holiday pay due to the complainant. The respondent said that they will make a payment to the complainant of €180.20 gross based on the contractual hourly rate of €10.60 by 17 hours.

In relation to the claim that he should be paid his annual leave entitlement at the average hourly rate, which includes overtime, the respondent referred me to S.I. No. 475/1997 Organisation of Working Time (Determination of Pay for Holidays) Regulations, 1997 which states that overtime is specifically excluded in the calculation of annual leave.

In relation to payment in lieu of notice, the respondent submitted that the complainant was paid one week’s pay in lieu of notice in line with his contract of employment.  He was paid €424.00 for 40 hours based on an hourly rate of €10.60 and this is set out in his October payslip.

The complainant worked one public holiday the 7th of August 2017 and he was given an additional day’s pay for working this day as set out in his August 2017 payslip.

The respondent submitted that this claim is outside the statutory time frame for referring a claim.

In relation to overtime the respondent submitted that the complainant was paid for all the overtime he worked and in line with his contract of employment. He was entitled to overtime when he worked in excess of 42 hours per week based on the week commencing on a Sunday and ending on a Saturday.  The complainant did not raise any issue about payment for overtime prior to the termination of his employment.

Jurisdiction Time Limits

The first matter I must consider is whether the complaint was referred to the Director-General within the six months statutory timeframe as set out in section 41(6) of the Workplace Relations Act, 2015 which states:

“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 the contravention to which the complaint relates.“

The complainant’s employment was terminated on the 28th September and he referred the complaint to the WRC on the 12th March 2018. The respondent submitted that I can only deal with complaints referred within 6 months of the contravention. I was referred to the High Court judgment in the case of Moran v Employment Appeals Tribunal and the HSE [2014] IEHC 154 which dealt with the interpretation of Section 6(4) of the Payment of Wages Act 1991 which had similar wording to S.41(6) above.  In applying the jurisprudence of the High Court in the above cited case and in the further High Court case of HSE v John McDermott [2014] IEHC 331 on appeal from the Labour Court, which held that a cause of action arises from each contravention and the complainant has 6 months from the date of each contravention to refer a complaint under the 1991 Act, I  am satisfied I have only jurisdiction to hear complaints arising in the 6 month period before the referral of the complaint on the 12th of March 2018.

Minimum Notice

I am satisfied from the records that the complainant was paid his contractual notice of one week’s pay based on 40 hours at €10.60 per hour.   There is no merit in his claim that he is entitled to be paid an average hourly rate which included overtime.  Therefore, this complaint fails.

Public Holiday

This complaint is outside the six-month statutory time limit for referring the complaint.

Annual Leave

The respondent accepts that the complainant was not paid his full statutory entitlement in respect of his annual leave on the termination of his employment.  The complainant is owed an outstanding balance of 17 hours holidays at €10.60.

 I am satisfied that the normal weekly rate of pay for the purposes of calculating annual leave excludes overtime.

Overtime

I have only considered the claims in respect overtime from the 13th of September 2017 as any claims prior to this date are outside the statutory time limit for referring a complaint.  I am satisfied from the complainants pay slips and timesheets that he was paid for any overtime worked during that period. His claim that he was not paid for Sunday overtime is not correct.  I note that overtime is paid for hours worked in excess of 42 hours per week calculated on the basis of the working week starting on a Sunday and ending on a Saturday. The complainant worked 2 Sundays during this period and I am satisfied that the complainant was paid in accordance with his contract of employment in respect of these 2 Sundays. Therefore, this complaint fails.

Pay

The respondent accepts that the complainant is owed 6 hours pay in respect of the 28th of September 2017.    

I find that the complaints regarding the payment of notice and overtime are not well founded. The claim in respect of the public holiday was not referred within the statutory time.

I find that there is merit in the complaint in respect of holiday pay. I direct the respondent to pay the complainant compensation in the amount of €244.00 which includes 6 hours pay which the respondent agreed was due to him.  This award is subject to any lawful deductions.

Payment of Wages Act, annual leave, pay, unlawful deductions.