Complainant

Respondent

Anonymised Parties

A Complainant

A Security Company

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020786-001

25/07/2018

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

CA-00020786-002

25/07/2018

The Complainant is a security guard since 28th October 2008. He is non-national and is currently on sick-leave.

On 25th July 2018 the Complainant submitted 2 complaints.

In CA-00020786-001 the Complainant claims he did not receive his annual leave entitlement of 23 days for the past number of years. He was not paid 12 days in 2014, 22 days for 2015, 2 days in 2016, 2 days in 2017 and 22 days in 2018, despite complaints to his employer.

In CA-00020786-002 he claims that he has not received proper payment from his employer as his contracted hours are 42 per week. He has not received his contracted hours for a number of years and has made enquiries with HR and the Trade Union about this. The Complainant is owed a lot of unpaid hours. Sometimes he is allocated work and arrives to a site and he finds the shift is cancelled. He is not informed until he gets there and then he is not paid. He is not on a zero hour contract but a full-time contract. He does not have a written contract.

He is owed 96 hours for 2014, 58 hours for 2015, 31 hours 2016, 166 hours for 2017, 218 hours for 2018.

CA-00020786-001 The Respondent disputes the claim and says the claim in respect of unpaid holidays for 2014 and 2015 is statute-barred. The company has a policy of no carry over of annual leave from 2014 onwards. This was discussed with the Complainant’s trade union and all staff were advised of the new policy. The annual leave year is 1 January to 31 December each year.

S27 of the Organisation of Working Time Act 1997 and S41 of the Workplace Relations Act 2015 provide that an Adjudication Officer shall not entertain a complaint after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

This complaint was lodged on 25 July 2018 and so is statute-barred.

CA-00020786-002 The Respondent denies the allegations made. The Complainant transferred into the company in March 2011. His hours of work and terms and conditions were all in line with the JLC. His contract hours are 39 per week. At certain time of the year staff are not offered their full contracted hours for example where the site has been lost or downscaled and the company seeks hours on a different site, the employee has been removed due to employer request, disciplinary or skill, or the employee is returning to work after a period of sick-leave, and there may be restrictions on where the employee can work.

There is a Make Up Time policy in place in the company with specific provisions, the Complainant is aware of the process and has used this. He must comply with this. If the Respondent has cancelled shifts there is a policy in place to cover that and he should be paid.

I have considered the parties evidence and submissions at the hearings on 19 October 2018 and 13th December 2018.

CA-00020786-001 The Complainant was employed with another company from 2008 to March 2011 when he transferred to the Respondent. He says that he is entitled to 23 days holiday annually in accordance with the terms of the Respondent’s policy due to his length of service. This is disputed by the Respondent who says that this benefit was removed some years ago for staff and the Complainant is subject to the JLC holiday terms of 20 days.

S41 (1) of the Workplace Relations Act 2015 provides that an employee may present a complaint to the Director General of the Workplace Relations Commission and the Director General shall subject to S 39 of the Act refer the complaint for adjudication by an Adjudication Officer.

S41(6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8) an adjudication officer shall not entertain a complaint referred to hm 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…

S41 (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented for referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but no later than 6 months after such expiration) as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause…”

The holiday year for the Respondent runs from 1 January to 31 December and any complaint in respect of breach of holiday pay must be made within 6 months following the end of the holiday year. The complaint was made on 25 July 2018. The time limit for lodging a complaint may be extended to 12 months where there is reasonable cause to do so in order for me to consider the complaint in respect of annual leave for 2017.

Complainant is not legally represented and is a non-national. His claim in relation to holiday pay for 2017 was not set out in writing on his complaint form. He was directed to set out details of his claim in writing for the second hearing. Details of the claim were provided to the Respondent at the hearing and the Respondent was given an opportunity to make further submissions in writing following the second hearing. The complaint form is an administrative document and the Complainant is not limited by its contents held by the Supreme Court in County Louth Vocational Educational Committee (Louth & Meath Education and Training Board) v the Equality Tribunal [2016] IESC 40/1. The complaint was lodged outside of the required 6 months’ time limit. However, I find there is reasonable cause to extend the time limit to 12 months given the slight delay in making the complaint in view of the Complainant’s nationality, the difference in language and his lack of familiarity with the Irish Legal system.

It is accepted by the parties that 20 days statutory holiday pay was discharged in relation to the holiday year 2017 which is the maximum statutory leave payable in accordance with S19 of the Organisation of Working Time Act 1997. The 3 days holidays for which the Complainant seeks payment is a contractual matter which falls outside of my jurisdiction under the Organisation of Working Time Act 1997.

I find the complaint CA-00020786-001 is not well founded for the reasons outlined.

In relation to complaint CA-00020786-002 the Complainant claims that he has not been paid 284 hours within the period of 12 months prior to 25 July 2018. This is comprised of 66 hours in 2017 and 218 hours for 2018. The complaint was lodged on 25 July 2018 and as set out in CA-00020786-001 I will extend time for 12 months due to reasonable cause for the delay in making the complaint.

The Complainant has furnished evidence of a Rights Commissioner determination in relation to staff of the Respondent employed on the same contract from 2012 which determines their weekly hours to be 42 hours per week. He has not comprised his claim.

The Complainant evidenced emails seeking payment and difficulty recovering the sums due. He has evidenced compliance with the notification requirements of the Respondent for payment under the MUT scheme. The Respondent says that all claims for payment in accordance with the Make up time scheme should be paid.

I find the complaint is well founded. The applicable rate of JLC hourly pay for the period is 11.05 per hour and for 284 hours is 3,138.20 gross euro. I direct payment of 3,138.20 gross euro to the Complainant by the Respondent together with compensation of 2 weeks wages of 928.20 euro.

I find the complaint CA-00020786-001 is not well founded for the reasons outlined.

I find the complaint CA-00020786-002 is well founded. I direct payment of 3,138.20 gross euro to the Complainant by the Respondent together with compensation of 2 weeks wages of 928.20 euro.

Statute-barred, extension of time, amendment of complaint form.