Complainant

Respondent

Anonymised Parties

An employee

A cleaning firm

Representatives

Marius Marosan

John Barry Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00030202-001

12/08/2019

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

CA-00030202-002

12/08/2019

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

CA-00030202-003

12/08/2019

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

CA-00030202-004

12/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030372-001

19/08/2019

The complainant is employed on a shift basis in the respondent cleaning firm as a cleaner.   She earns €11.50/hr + 20% shift allowance. She is rostered 84 hours per fortnight, working every second Sunday. She commenced work on 21 January 2019.

CA-00030202-001

That the respondent did not provide her with the terms and conditions of employment as laid down in the Employment Regulation Order

CA-00030202-002

That she did not receive her public holiday entitlements for two days

CA-00030202-003

That she was not given compensation for the Sunday hours that she works every second week

CA-00030202-004

That she was penalised when she sought to invoke her rights under the Organisation of Working Time Act, by amongst other issues, extending her probation and not allowing representation of the union at probation meetings, and being sent home from work because there was a typo in a medical cert which had been submitted a week previously.

CA-00030372-001

That she was not notified in writing of a change in the terms of her employment when her probation was extended two months after her probation period had already expired.

CA-00030202-001

The respondent denied that the complainant did not receive her terms and conditions of employment stating that they were provided to her in February 2019 via email and that an employee handbook was available online and that the link was noted in the contract.

CA-00030202-002

The respondent conceded that they did not pay the complainant the appropriate public holiday entitlements.

CA-00030202-003

The respondent disputed that she was entitled to a Sunday premium on the basis that it was included in the core pay along with the site allowance. In that regard, the respondent referred to the contract of employment and the employee handbook which notified employees of this policy.

CA-00030202-004

The respondent denied that they penalised the complainant, rather the extension of the probation period was valid and was simply down to disciplinary issues with the complainant. On the issue of representation, it submitted that Union representation was not allowed by the client on that site but was available in a Head Office based meeting which was notified to the complainant.

CA-00030372-001

The respondent disputed that the extension of probation was a change in the terms of the employment as it is provided for in the terms and conditions of service given to the complainant.

CA-00030202-001

The complainant argued at the hearing that her contract did not comply with Statutory Instrument 548/16 in that it did not provide all the requisite information to her.   The respondent denied this stating that between the contract and Employee Handbook referenced therein, all the required information was provided to the complainant at the outset. The complainant indicated that she had not received the handbook and later in the hearing stated that she had been unable to access the employee handbook via the internet link provided to her. On balance I prefer the respondents account of how the information was provided to its employees and I consider that they have satisfied the requirements of the Statutory Instrument.   Accordingly, this element of the complaint fails.

CA-00030202-002

The complainant stated that she did not receive her public holiday entitlement for two public holidays, this element of the complaint was conceded by the respondent.   Therefore, I find that the complainant is entitled to succeed in relation to this element of her complaint.

CA-00030202-003

The complainant submitted that she was not appropriately compensated for working on Sundays, stating that she received €11.50 per hour plus a shift allowance of 20% for all her hours of work. In response, the respondent indicated that this amount included the appropriate allowance for working Sundays and that this was indicated on the contract and in the employee handbook. In support of its claim the respondent directed the adjudicators attention to the contract of employment. I note from the documentation provided that the space indicating Sunday premium is marked simply with a dash. The respondent contended that this was a check mark and accordingly included the payment. I also not that elsewhere in the document it was completed with both dashes and check marks as appropriate. I am not satisfied that in the normal reading of the document that it could be interpreted as including payment of the Sunday premium.   Furthermore, the respondent directed the Adjudicator to the employee handbook where it indicated that further information was contained, however no further information on the inclusion of Sunday premium, either implicit or explicit was contained therein.

I am mindful of the Labour Courts decision referred to at the hearing - the case of Viking Security Ltd v Tomas Valent (DWT1489):

“In the Court’s view it is insufficient for the employer to simply say (as the Respondent does in this case) that because the rate exceeds the national minimum wage it compensates for Sunday working. If such a contention were to be accepted the effectiveness of the statutory provision would be seriously undermined in the case of all workers whose pay exceeds the statutory minimum

In practice the Court can only be satisfied that an employee has obtained his or her entitlement under s.14(1) of the Act where the element of compensation for the obligation to work on Sundays is clearly discernable from the contract of employment or from the circumstances surrounding its conclusion. Where an hourly rate is intended to reflect a requirement for Sunday working that should be identified and clearly and unequivocally specified at the time the contract of employment is concluded either in the contract itself or in the course of negotiations.

I note the Labour Court’s findings that compensation for Sunday working should be explicitly stated in the contract of employment or in the associated discussions. Accordingly, this element of the complaint is upheld.

CA-00030202-004

In relation to the issue of penalisation, three elements were presented to me, the first was that the probation was extended after it had expired as a response to the complainant asserting her rights under the Organisation of Working Time Act. The respondent submitted that had verbally informed all workers during a meeting with all employees that as they were so busy, probation meetings would be delayed. The complainant contested this version of events. I note that the respondent did not attempt to notify the affected workers directly and that the meeting referred to took place after the probation period had elapsed.

In relation to the complainant’s suggestion that she was not allowed union representation at meetings, the respondent submitted that it was allowed, just not on that particular site. The respondent argued that this was its policy and was made clear to the complainant, the complainant denied that she had been informed of this option. Having heard the evidence from both parties, I prefer the complainant’s version and am satisfied that although this position may have been the respondent’s policy, it was not pointed out to the complainant.

In relation to the querying of the medical certificate, I am satisfied that the respondent has demonstrated a need to ascertain the exact nature of the illness, arising from the client’s stipulations on site, but I am not satisfied that this was pursued in a fair or effective manner considering that it took one week to follow up on the medical cert.

On the basis of all of the foregoing, I consider that the complainant has established a prima facie case of penalisation which the respondent has not rebutted. Accordingly, she is entitled to succeed in this element of her complaint.

CA-00030372-001

Having considered the evidence presented to me, I am satisfied that contract of employment notes that the probation may be extended under certain circumstances and the extension itself does not constitute a change in the terms and conditions of employment. Accordingly, this element of the complaint fails.

CA-00030202-001

As this element of the complaint has failed, it is my decision that she is not entitled to succeed in relation to this element of the complaint.

CA-00030202-002

I direct the respondent to pay the complainant compensation of €500 for a breach of Section 21 of the Organisation of Working Time Act.

CA-00030202-003

In the aforementioned Labour Court case the decision stated “The Court measures the level of compensation for working on Sundays that is reasonable in all the circumstances at time-plus-one-third for each hour worked on a Sunday. The Respondent is directed to pay the Claimant a premium in that amount. Having regard to the time limit specified in s.27 of the Act, the Respondent is further directed to pay the Claimant arrears of Sunday premium, so calculated, for each Sunday on which he worked in the six months prior to the date on which the within claim was presented”.

In the circumstances I will follow the Labour Courts line of reasoning and direct the respondent to pay the complainant time-plus-one-third of the hourly rate (€11.50) for each hour worked on a Sunday for the six months preceding the receipt of this claim (12/08/2019).

CA-00030202-004

I direct the respondent to pay the complainant compensation of €15,000 under Section 27of the Organisation of Working Time Act.

CA-00030372-001

As this element of the complaint has failed, it is my decision that she is not entitled to succeed in relation to this element of the complaint.

Penalisation, Probation, Sunday Premium, prima facie case