ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016219

Parties:

	Complainant	Respondent
Anonymised Parties	Coffee Roaster	Coffee Company

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021078-001	09/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00021078-002	09/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00021078-003	09/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021078-004	09/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021078-005	09/08/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00021078-006	09/08/2018

Date of Adjudication Hearing: 15/01/2019

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 7 of the Terms of Employment (Information) Act 1994 and Section 27 of the Organisation of Working Time Act 1997, 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 from 12th February 2018 to 27th July 2018. His complaints are that he did not receive written terms of employment, that when the terms of employment were changed, he was not notified in writing and further that he was required to work more than the maximum permitted weekly and nightly working hours.

Summary of Complainant’s Case:

The complainant stated that he was not given a written contract of employment when he commenced work. The respondent moved him around to different roles. He was promised €30,000 per annum as a salary but when he received his payslips he discovered the respondent was paying him €15 per hour for an average 39 hour week. The complainant disputes the hours, claiming he worked longer hours. He also takes issue with the changes in working arrangements advised to him at very short notice, for example, his working week was changed one Friday (6th July 2018) at 6pm when he was pressurised to work Saturday and Sunday. The respondent told him the new working arrangement would be Wednesday to Sunday. Regarding night hours, the complainant stated that he had been pressurised to roast and stayed until 2am on one occasion. Regarding Sunday working, the complainant stated that he worked Sundays 3rd June, 1st July, 8th July and 15th July 2018. The complainant stated that he was owed €1,000 in wages, which claim he has submitted under a separate complaint.

Summary of Respondent’s Case:

The respondent accepted that the complainant was not provided with a written contract at the beginning of his employment. There were many reasons for this. The business was new and it was hoped that the complainant would be a head roaster. However, he proved to be not reliable, in relation to his attendance and attitude. The respondent had drafted contracts and due to various problems, including the ill health of his accountant, the contracts were only recently given to staff. The respondent denies all other claims by the complainant. The complainant only worked hours after 6pm when he had not met his roasting targets. He worked a few Sundays but as he was paid well above minimum wage, he was not entitled to further compensation. The respondent’s records show that the complainant did not work more than 48 hours a week for a period as alleged.

Findings and Conclusions:

CA-00021078-001

It is common case that the complainant was not furnished with written terms of his conditions of employment within two months of commencement which is a requirement as provided in Section 3 of the Terms of Employment (Information) Act 1994. I find his complaint to be well founded and I require the respondent to pay to the complainant the sum of €585 compensation.

CA-00021078-002

Section 5 of the Terms of Employment (Information) Act 1994 provides that whenever a change is made or occurs in any of the particulars of the statement furnished under section 3, then the employer shall notify the employee in writing of the change not later than one month after the change takes effect. In this instant case, as found above, no statement was furnished to the complainant. In that case, no change could be said to have occurred. I do not find the complainant’s complaint to be well founded.

CA-00021078-003

This complaint seeks adjudication under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012. The complainant was not a mobile transport worker and I find his complaint therefore to be misconceived and not well founded.

CA-00021078-004

Section 15 of the Organisation of Working Time Act 1997 provides that an employer must not permit an employee to work in each period of seven days, more than an average of 48 hours calculated over a reference period that does not exceed 4 months. Having considered the evidence in this case, while I note that in one particular week, the complainant may have worked more than 48 hours, I do not find that he was required to work more than the permitted maximum hours calculated over a period. I find the complaint to be not well founded.

CA-00021078-005

Section 16 of the Organisation of Working Time Act 1997 governs the working hours specifically of night workers. The definition of “night worker” as contained in this section of the Act provides:

“16 (1) ..(a)”night worker” means an employee who normally works at least 3 hours of his or her daily working time during night time

(b) the number of hours worked by whom during night time in each year, equals or exceeds 50 per cent of the total number of hours worked by him or her during the year.”

Night time is defined in the Act as the period between midnight and 7am the following day.

I find that the complainant does not meet the definition of a night worker and therefore this complaint is misconceived and I find the complaint to be not well founded.

CA-00021078-006

Section 14 of the Organisation of Working Time Act 1997 provides than 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…”

In this instant case, I find that the complainant was paid well in excess of the minimum wage and I accept the respondent’s argument that this made up for any Sunday working. I find the complaint to be not well founded.

Decision:

CA-00021078-001

I find this complaint to be well founded and I require the respondent to pay to the complainant the sum of €585 compensation.

CA-00021078-002