Complainant

Respondent

Anonymised Parties

A Sous Chef

A Golf Club

Representatives

RichardGrogan,  Richard Grogan & Associates, Solicitors

Ken Stafford,  Management Consultancy Services

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-00017954-001

07/03/2018

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

CA-00017954-002

07/03/2018

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

CA-00017954-003

07/03/2018

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

CA-00017954-004

07/03/2018

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

CA-00017954-005

07/03/2018

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

CA-00017954-006

07/03/2018

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-00017954-007

07/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00017954-008

07/03/2018

The complainant commenced employment as a sous chef on April 18^th 2017.  His last day at work was February 25^th 2018 and he submitted the complaints at numbers 1 – 8 which are set out above on March 7^th.  He resigned on March 30^th. 

At the hearing, the managing director said that on March 8^th 2018, he met the complainant to discuss a particular matter and that none of the issues that he submitted in his complaint form were brought up.  He said that the complainant had ample opportunity to discuss his concerns.  The managing director said that an inspection of their records was carried out by the WRC Inspection Unit and that no breaches were identified.

In his complaint form under the heading of Terms of Employment (Information) Act 1994, (“the  1994 Act”), the complainant said, “I did not receive a document which complied with section 3 as regards National Minimum Wage Act, Annual Leave and start / finish times.”

1.  The complainant’s contract of employment contains no reference to the minimum wage or the reference period for calculation of the minimum wage as required under the National Minimum Wage Act 2000.  Mr Grogan said that the respondent is in breach of section 3(g) of the Terms of Employment (Information) Act 1994 because the rate or method of calculation of the complainant’s wages are not set out in his contract of employment.

2.  The contract states that the complainant is entitled to 20 days’ holidays a year, whereas the Organisation of Working Time Act provides, at section 19, that an employee is entitled to “four working weeks.” 

3.  Referring to the complainant’s contract of employment as “a defective document,” Mr Grogan said that it states that he is required to work 40 hours a week and that his hours are “varied and agreed by roster.”  Mr Grogan said that, in respect of the complainant’s entitlement to be informed of the times of his rest breaks, this statement is in breach of Statutory Instrument 49 of 1998, the Terms of Employment (Additional Information) Order (SI 48/1998).

Copies of an Employee Handbook and a document titled, “Company Procedures” were submitted in evidence.  The managing director said that these were given to the complainant with his contract of employment and they set out the precise details of his terms and conditions of employment.

1.  The respondent’s case is that the complainant was employed on an annual salary of €35,000 and that there was no advantage to including a reference to the minimum wage in his contract of employment.  While the complainant was on a higher salary than the minimum wage, the final statement in his contract of employment notes that “the company maintains records to provide a reference period in line with Minimum Wage and Working Time Legislation.”

2.  Comprehensive details of employees’ entitlements to annual leave and public holidays are set out at section 7 of the Handbook.  The respondent argued that there was no merit to the complaint about annual leave.

3.  The managing director said that hours of work are posted on the employee notice board every Wednesday for the week commencing the following Monday.  Details of rest breaks are set out at clause 6.5 of the Handbook.

The Relevant Law

The purpose of the 1994 Act was to transpose into Irish law European Directive 91/533/EC on an employer’s obligation to inform employees of their terms and conditions of employment.  Article 2 of the Directive provides that:

“An employer shall be obliged to notify an employee to whom this Directive applies, hereinafter referred to as 'the employee', of the essential aspects of the contract or employment relationship.”

In the determination of the Labour Court in the case of Patrick Wall and Irish Water, TED 161, referring to the directive, the chairman, Mr Duffy stated that,

“…in construing a provision of national law enacted to transpose a directive, a Court or Tribunal must do so, as far as possible, in light of the wording and purpose of the Directive so as to produce the result envisaged by the Directive.”

As the adjudicator of this complaint, my obligation is the same, to consider if, in the manner and content in which the complainant was informed about his terms and conditions of employment, did the respondent properly notify him about “the essential aspects” of the employment relationship.

Complaints of Non-compliance with Section 3 of the Terms of Employment (Information) Act 1994

1.  The complainant’s contract of employment did not set out a reference period for calculation of the minimum wage.

The complainant’s annual salary was €35,000.  As he was paid in excess of the minimum wage, I find that here was no detriment to him by not providing details of the reference period for the calculation of the minimum wage in his contract and the provision of such a statement would have had no significance.

2.  The complainant’s contract of employment stated that he was entitled to 20 days’ annual leave, “subject to the entitlement procedures as set out in the Working Time Act 1997.”.   Mr Grogan argued that, in accordance with section 19 of the Organisation of Working Time Act 1997, the complainant was entitled to four working weeks’ holidays.  

Section 20 (1) of the Organisation of Working Time Act provides that,

“The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject— 

(a) to the employer taking into account—  

(i) the need for the employee to reconcile work and any family responsibilities,  

(ii) the opportunities for rest and recreation available to the employee,  

(b) to the employer having consulted the employee or the trade union (if any) of which he or she is a member, not later than 1 month before the day on which the annual leave or, as the case may be, the portion thereof concerned is due to commence, and  

(c) to the leave being granted within the leave year to which it relates or, with the consent of the employee, within the 6 months thereafter.”

There is no mention here of the requirement to take leave in blocks of one week.  The Act provides that the timing of annual leave “shall be determined” by the employer,” but “subject to the employer having consulted the employee.”

The complainant gave no evidence on this complaint and it is my view that he had no grievance in respect of how his holidays were allocated. 

It is not in the interest of employees to interpret the provisions of the Organisation of Working Time Act with the rigidity proposed by Mr Grogan.  If employers were to adopt this approach, a multitude of industrial relations problems would ensue.  It is my view that, while there was a technical breach of the 1994 Act in the way in which the complainant was informed of her holiday entitlement, the complainant was at no disadvantage as a result of this breach.    

3.  The hours of work were not stated on the contract.

The complainant was notified of his hours of work for the coming week on a roster that was posted on the staff notice board every Wednesday for the following Monday.  Due to the changes in the roster to manage the seasonal nature of the golf club’s business, it would not have been feasible to set out the complainant’s hours in his contract of employment. 

The information on rest breaks that are provided at section 6.5 of the Employee Handbook are clear and provide understandable information for employees about their entitlement to breaks.

I am satisfied that the failure of the respondent to set out the reference period for the calculation of the minimum wage was not a detriment for the complainant and does not render his contract of employment “defective.”  I am also satisfied, that, in respect of the information provided to him with regard to the complainant’s entitlement to annual leave, hours of work and rest breaks, no breach of section 3 of the 1994 Act has occurred.  I decide therefore that this complaint is not upheld.

On his complaint form, the complainant stated:

“I was not advised of my rights under OWTA to 4 weeks’ paid holidays.  The Labour Court has ruled in Irish Water and Hall that claim must be made under this Act.  My solicitor says that is not correct but you are bound by the Labour Court decision.”

Arising from the decision of the Labour Court in the case of Irish Water and Patrick Hall, TED161, Mr Grogan said that a complaint submitted in relation to annual leave must be adjudicated upon under the Organisation of Working Time Act 1997 (“the Working Time Act).  In this case, Mr Hall complained that his contract stated that the leave year in Irish Water was from January to December, whereas, section 2 of the Working Time Act provides that a “leave year” is any year beginning on the 1^st day of April.  In the case under consideration here, the complainant’s contract makes no reference to the leave year, but the Employee Handbook states that “the Holiday Year for the Company is January 1^st to December 31^st.”

In correspondence submitted after the hearing, on November 6^th and again on November 19^th 2018, Mr Grogan added a claim in relation to section 19(3) of the Working Time Act which provides that:

The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.

While no evidence on this issue was presented at the hearing, Mr Grogan submitted that the complainant did not get two unbroken weeks’ leave while he was employed by the respondent.

The respondent’s case is that the Employee Handbook provided detailed information to the complainant with regard to his holidays entitlements and that he suffered no disadvantage from the manner in which he was informed about his holidays.

In correspondence after the hearing, on November 9^th, Mr Stafford sent details of the complainant’s annual leave.  The complainant was on holidays from December 15^th to 31^st, an unbroken period of more than two weeks.  Not all of the days taken as holidays at this time were paid holidays, because, at this point in the year, the complainant had used up all his holiday entitlements.

Having considered this matter under the Terms of Employment (Information) Act 1994, I must now consider the breach complained about under the Working Time Act.  It is my view that the complainant suffered no detriment from the respondent’s decision to calculate his annual leave on the basis of the calendar year, rather than from April 1^st in any year, as set out in the Working Time Act.  The complainant gave no evidence about this technical breach of the Working Time Act and it is my view that he was unaware of the possibility that a breach had occurred.

I am satisfied that the complainant was permitted to take two unbroken weeks of annual leave from December 15^th to 31^st 2017.  Due to the fact that he had used up most of his holidays in 2017, he was not entitled to take all of the days that he availed of, and his employer permitted him to take some  unpaid days.  The fact that some of the days were unpaid holidays, does not mean that they were not holidays.  Two public holidays were included in the period from December 15^th to 31^st.  This is addressed at section 19(4) of the Working Time Act which provides that,

… the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.

I have found that the complainant suffered no detriment as a result of the technical breach of the Working Time Act in respect of the determination of the start and finish of the leave year.  I am also satisfied that he took two unbroken weeks’ holidays in December 2017.  I decide therefore, that this complaint is not upheld. 

In his complaint form under this heading, the complainant said, “no Sunday premium / no proper Sunday premium.”

The complainant’s contract of employment states that his annual salary is €35,000 and it makes no reference to Sunday pay.  At the hearing, Mr Grogan referred to a number of Labour Court decisions and specifically to the decision of the Court in the case of the Park House Hotel and Edyta Wlodarczyk, DWT1624.  Finding in favour of the complainant in this case, the chairman, Mr Foley concluded that,

“… a mere assertion that the Appellant’s obligation to work on Sundays was taken into account in determining her rate of pay cannot be taken on its own, as evidence of compliance with Section 14(1) of the Act.”

A memo dated February 12^th 2018 was submitted in evidence by the respondent.  A copy was also sent to me following the hearing, on November 2^nd 2018, along with a further explanation of the Sunday work policy at the golf club.  The memo is addressed to all employees and refers to “Sunday Premium Payment Calculation.”  The memo explains that,

Sunday is considered part of our normal working week and this has been outlined on all employment contracts in a similar format to below.

Hours of Work:  Monday – Sunday:  Varied and agreed by roster.

What may not be clear from the above is that the company has already factored in a premium payment for employees when they are rostered to work ion a Sunday.  This has been included in your basis (sic) rate of pay.

At the hearing, the managing director argued that the complainant was not at any loss of pay arising from the failure to set out the policy in relation to Sunday working more clearly in his contract of employment.

The Relevant Law

Section 14 of the Working Time Act sets out the provisions for Sunday working:

(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.

It is clear from this legislation that an employee who works on Sundays is entitled to be paid an allowance and also, he or she must know the value of that allowance and the difference between their normal wages and the rate of pay for working on Sundays.

Findings in Respect of the Sunday Premium

It is apparent that there was no reference to Sunday pay in the complainant’s contract of employment, although there was a reference to a requirement to work on Sundays.  This situation was rectified in February 2018, nine months after he commenced employment.

In the decision in the Park House Hotel case referred to by Mr Grogan, the chairman referred to an earlier Labour Court decision in the case of Viking Security Limited and Thomas Valent, DWT 1489.  Here, the court found that it 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 discernible from the contract of employment or from the circumstances surrounding its conclusion.”

The authority of the Labour Court with regard to this matter carries considerable weight and I find that the respondent was in breach of section 14 of the Working Time Act in respect of the complainant’s entitlement to an allowance for working on Sundays.  I find that the cognizable period for adjudicating on this complaint is six months prior to March 7^th 2018, which is the date that this complaint was submitted to the WRC.  From the copies of the complainant’s roster that were submitted in evidence, I estimate that he worked three Sundays out of four for around seven hours each Sunday.  During the cognizable period therefore, I estimate that he worked on 18 Sundays.  

As I have concluded that there has been a breach of section 14 of the Working Time Act in respect of the complainant’s entitlement to a Sunday allowance, I decide that the respondent is to pay him compensation of €600.  I have reached this calculation by applying a 25% premium to an estimate of the complainant’s daily rate of pay of €134 for 18 days.

On his complaint form under this heading, the complainant said that he was “not notified of hours under section 17 at least 24 hours in advance.”

On some of the days that the complainant was rostered to work, his finishing time was given as “close.”  Mr Grogan pointed out that “close” is not a finishing time and he submitted that the complainant should have received 24 hours’ advance notice of his finishing time.  In support of the complainant’s position, Mr Grogan referred to the following Labour Court decisions:

Matthew Scally and Aoife Lynch and Michelle Kelly, DWT13102

In the decision on this case, the Court found that the requirement of the complainants to stay late and to work after what they expected would be their finishing time could have been anticipated by their employer and communicated to them in advance.

Trinity Lodge Limited and Mirela Catarama, DWT1474

In this case, the Court found in favour of a receptionist who was regularly prevented from leaving work at her normal finishing time due to late check-ins.

Anglo-Irish Beef Processors Rathkeale and SIPTU, DWT0019

Here, the Court upheld a decision of the Rights Commissioner requiring the company to comply with section 17 of the Act.   

In response to this complaint, the managing director said that the staff at the golf club understood that their finish time is eight and a half hours after the start time on the rosters.  However, rosters have now been changed, so that a finishing time is shown.  Copies of rosters commencing on January 28^th 2018 were submitted in evidence that showed the exact start and finish times for the complainant. 

The managing director referred to the decision of the adjudicator, Ms Rosaleen Glackin, in case number ADJ-00012060 (complaint number CA-00015563-003) in which a chef submitted a series of complaints against the same respondent as the respondent in this case.  Finding that there was no breach of section 7 of the Working Time Act, Ms Glackin noted that the complainant was paid his regular salary every month, regardless of the hours that he worked in the quiet season at the golf club.  During the quiet times, the restaurant closed early.  The complainant in the case under consideration here had the same opportunity to leave early when the restaurant was quiet.

The practice of not indicating the precise finish time on the rosters has now ceased and as a result, this problem has been satisfactorily resolved.  This complainant gave no evidence on the matter and he did not indicate that he had to work long hours or excessive overtime.  He did not dispute that, on less busy evenings in the restaurant, he was able to leave work early.  I find therefore, that the fact that his exact finish time was not specified on some evenings did not result in a breach of section 17 of the Working Time Act.

As I have concluded that there has been no breach of section 17 of the Working Time Act, I decide that this complaint is not upheld.

On his complaint form, the complainant stated:

“Did not receive entitlements.  Worked about half, got nothing extra.”

In response to this complaint, the managing director said that, as a salaried employee, if the complainant was off work on a public holiday, he was paid his normal salary in the month in which the public holiday fell.  If he worked on the public holiday, he got an extra day off.  In correspondence sent to me by Mr Stafford on November 9^th 2018, he said that in 2017, the complainant worked on two public holidays on August 7^th and October 30^th.  He was permitted to take an additional paid day off on August 13^th and November 1^st and 11^th, with the result that he got three additional days off in respect of two public holidays.

I find that the complainant received his proper entitlement to paid time off for working on two public holidays in 2017.

As I have found that the complainant received his entitlement to paid time off for working on public holidays, I decide that this complaint is not upheld.

On his complaint form, the complainant stated:

“Did not receive entitlements to proper pay as Sunday premium / public holiday rights not taken into account.”

The complainant gave no evidence on this matter.  Mr Grogan referred to Statutory Instrument 475 of 1997, The Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997.  At section 3, the method for calculating holiday pay is set out:

(2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

 (3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over— 

(a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,

or 

(b) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.

Mr Grogan said that the complainant’s holiday pay did not include a premium for working on Sundays.

In correspondence sent to me after the hearing, on November 2^nd 2018, Mr Stafford said that the complainant worked 18 out of the 26 Sundays in the cognizable period from September 8^th 2017 until this complaint was submitted on March 7^th 2018.

Mr Stafford disputes that the complainant was not given his entitlements to Sunday pay, because it was the policy of the respondent to include an allowance for Sunday working in the complainant’s salary of €35,000.  On this basis, he argued that there can be no claim for an additional premium to be included in holiday pay.

Under the heading of CA-00017954-003 above, I have concluded that the respondent was in breach of section 14 of the Working Time Act in respect of the complainant’s entitlement to an allowance for working on Sundays.  It follows therefore, that I must find that the calculation of his holiday pay should have included a Sunday allowance. 

In 2017, in line with his service from April 18^th to December 31^st, the complainant was entitled to 14.5 days’ holidays.  In 2018, he was entitled to 2.3 days, resulting in an entitlement to just under 17 days for the duration of his tenure with the company.  He generally worked about three Sundays out of four. 

I have concluded that this complaint is upheld.  I decide therefore that the respondent is to pay the complainant compensation of €100, equivalent to an allowance of 25% for three days.

On his complaint form, the complainant stated:

“Did not receive entitlements to section 12.  Until recently none.  Now two periods but neither are 15 minutes and do not comply with section 12.”

The complainant did not give evidence on this issue.

At the hearing, Mr Grogan said that this complaint was submitted under the heading of the wrong legislation and he intends re-submitting it under the correct legislation.

I decide that this complaint is dismissed because it is misconceived.

This complaint was withdrawn.

Statement of terms and conditions of employment, Sunday premium, annual leave, public holidays