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-00023749-001

03/12/2018

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

CA-00023749-002

03/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997. (This complaint was withdrawn at the hearing).

CA-00023749-003

03/12/2018

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

CA-00023749-004

03/12/2018

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

CA-00023749-005

03/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.     (This complaint was withdrawn at the hearing).

CA-00023749-006

03/12/2018

The respondent was engaged in providing healthcare workers to people in their own homes. At the hearing, the HR manager informed us that the company ceased trading on December 3rd 2018. The complainant was recruited as a healthcare assistant on June 7th 2017 and she resigned on August 24th 2018. She was paid €10.00 per hour, but, depending on the client that she visited, she was also paid €11.00 per hour.

The remaining complaints for adjudication have been submitted under the Organisation of Working Time Act 1997 and the Terms of Employment (Information) Act 1994. Both these pieces of legislation were amended by the Employment (Miscellaneous Provisions) Act 2018, which commenced on March 4th 2019.   Because these complaints relate to a period of employment before August 2018, in my findings in respect of the complaints considered below, I have not taken account of the effect of the amendments on the legislation.

In her complaint form under the heading of Terms of Employment (Information) Act 1994, (“the 1994 Act”), the complainant said, “I did not get a document which complied with Section 3.”

In accordance with the provisions of the 1994 Act at the time this complaint was submitted, within two months of the commencement of employment, the employer must give an employee a written statement of their terms and conditions of employment. Mr Grogan stated that the statement given to the complainant was not compliant with the requirements of the 1994 Act for the following reasons:

1. In the employee’s contract, the holiday year is stated to run from January 1st to December 31st. Mr Grogan said that this does not comply with the definition of the “leave year” at section 2 of the Organisation of Working Time Act 1997, which provides that the “leave year” means a year beginning on April 1st.

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.”   Mr Grogan said that, in accordance with the Interpretation Act 2005, a week commences at midnight on Sunday and, on this basis, the complainant was entitled to four weeks’ holidays with each week commencing at midnight on Sunday.

3. 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.

4. The address of the company is not stated on the contract as required at section 3(1)(b) of the 1994 Act.

5. The hours of work are not set out as required at section 3(1)(i) of the 1994 Act.

6. There is no reference to a pension or a personal retirement savings account (PRSA) as required by section 3(1)(k)(ii) of the 1994 Act.

A copy of the complainant’s contract of employment was submitted in evidence by the respondent’s HR manager. The HR manager argued that this contract contains all the information required to be included in a written statement of terms and conditions of employment, as required by section 3 of the 1994 Act. The complainant’s contract refers to further information which is available in the company’s employee handbook which was also submitted in evidence.

The HR manager said that, in response to a data access request on October 4th 2018, the complainant’s solicitor was provided with all the information he requested in relation to the complainant, including her contract, timesheets, payslips, training records and e-mail correspondence.

It is the respondent’s case that the complainant’s written contract and the employee handbook which was given to her at the commencement of her employment, set out her terms and conditions in full, in compliance with the requirements of the 1994 Act.

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 her terms and conditions of employment, did the respondent properly notify her about “the essential aspects” of the employment relationship.

Complaints of Non-compliance with Section 3 of the 1994 Act

1. The leave year is stated to be the calendar year, rather than a year beginning on April 1st.

The complainant’s contract of employment informed her that the leave year begins in January, and that holidays were calculated on a calendar year basis. Like many workplaces, the calendar year is the basis on which annual leave is calculated here. It was essential that this was communicated to the employee so that she understood how her holidays were allocated. Aside from the alternative definition in the Organisation of Working Time Act, it is my view that a technical breach of section 3 of the 1994 Act has occurred, because the employer used the calendar year definition and informed their employee of this fact. I am satisfied however, that the complainant suffered no detriment as a result of this technical breach.

2. The complainant’s contract of employment stated that she was entitled to “20 working days per year, and proportionately less for less than twelve months’ service. Pro-rata annual leave will apply for part-time staff.” Mr Grogan argued that the complainant was entitled to holidays, in accordance with section 19 of the Organisation of Working Time Act 1997, of four working weeks.   He argued that, in accordance with the Interpretation Act 2005, each week of annual leave should commence on a Sunday.

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 she had no grievance in respect of how her holidays were allocated. She was a part-time employee and her annual leave was calculated on the basis of 8% of the hours that she worked in a leave year.

It is not in the interest of employees to interpret the provisions of the Organisation of Working Time Act and the Interpretation 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 complainant’s contract of employment contained no reference to the minimum wage or the reference period for calculation of the minimum wage.

The complainant was paid an hourly rate of €10 or €11, depending on the client to whom she was assigned to work. She resigned in August 2018. When she joined the company in July 2017, the minimum wage was €9.25 per hour and on January 2018, it was increased to €9.55 per hour. As she was paid in excess of the minimum wage, I find that here was no detriment to her by not providing details of the reference period for the calculation of the minimum wage in her contract and the provision of such a statement would have had no significance.

4. Failure to provide the respondent’s address on the contract.

While the contract of employment is issued on headed notepaper, the company’s address is not given. While there was no evidence of any detriment that arose for the complainant in respect of the failure to show the company’s address on the contract of employment, it is my view that this is an important detail and should have been included.

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

The complainant was issued with a roster for each week of her employment and her hours varied, depending on the clients that she visited. Her contract referred to a “flexible hour” arrangement and it is my view that she understood that she would be provided a weekly roster one week in advance. It would not have been feasible to set out the complainant’s hours in her contract of employment and, on this basis, I find that no breach of the 1994 Act has occurred.

6. There was no reference in the contract of employment to a PRSA.

Section 121 of the Pensions (Amendment) Act 2002 sets out the obligation of employers with regard to providing access to a PRSA for their employees:

(1) An employer who is not operating a scheme or who is operating a scheme which limits eligibility for membership of it or imposes a waiting period for membership of it which is greater than 6 months from the date of commencement of employment shall, in respect of at least one type of Standard PRSA—

(a) enter for the benefit of his excluded employees into a contractual arrangement with one or more PRSA providers to enable those employees to participate in such a PRSA,

(b) deduct, at the request of any excluded employee and on receipt of the appropriate information from the employee, such sums of money as are determined by the employee and the employer from the wage or salary of the employee, and

(c) subject to subsections (2) and (3), remit the said sums to the Standard PRSA the subject of the contractual arrangement referred to in paragraph (a) or, if there is more than one such Standard PRSA, to the Standard PRSA chosen by the excluded employee.

The legislation is clear that, since September 15th 2003, it is mandatory for employers to provide access for employees to a PRSA. The failure of the employer to inform the complainant about a PRSA is a breach of the 1994 Act and its effect is that the complainant was prevented from saving for a pension during the period of her employment with the respondent.

Considering the breaches that have occurred in respect of the employer’s obligations under section 3 of the Terms of Employment (Information) Act 1994, I find that only one of the six alleged breaches put forward by the complainant has any significance. This relates to the failure of the respondent to provide information to the complainant about a PRSA.  

I have concluded that the respondent’s failure to provide the complainant with information to allow her to consider saving for a pension through a PRSA was a breach of the Terms of Employment (Information) Act 1994. I decide that the respondent is to pay the complainant compensation of €360.00, which is equivalent to approximately 2% of what she earned when she was employed by the respondent from June 2017 until August 2018.

On her complaint form which she submitted to the WRC, the complainant said, “sometimes insufficient times between appointments to get a break.” At the hearing, Mr Grogan argued that the complainant cannot be exempted, in accordance with section 4 of the Organisation of Working Time Act 1997 (“the 1997 Act”), from the provisions of any aspect of Part II of the 1997 Act. This is because she was not informed that she was so exempted and she was given a roster of hours and therefore, not in a position to determine her own hours of work.

In response to this complaint, the HR manager said that it was the responsibility of the complainant to ensure that she got her breaks between her appointments. It appears that this meant that, on occasions where there was insufficient time to take a break between clients, due to the time spent travelling from one client to the next, she was to reduce the time spent with a client, so that she got her break between client visits.

The complainant was issued with a roster and did not set her own hours of work and she was not in any respect in control of her hours of work. It follows therefore that the complainant was not exempted from the provisions of Part II of the 1997 Act in respect of daily rest breaks. From the evidence on the rosters that were submitted in evidence, it is apparent that there were occasions when the complainant did not have time to take a proper break, as she had to travel between clients. From these rosters, it appears that, during the six months from January to June 2018, on around 10 days out of 170 days worked, the complainant did not have an opportunity to take a proper rest break during her working day. It is my view that, on those days, the complainant’s roster should have been arranged to facilitate a proper break and a breach of section 11 of the 1997 Act has occurred as a result of this failing.

For the complainant, Mr Grogan argued that, when the complainant worked at night, she worked from 8.00pm until 8.00am the following morning, and that she was prevented from taking a break during these shifts. It is my view however, that it was not unreasonable for the complainant to arrange to take a proper rest break during this shift as she would not have been required to pay constant attention to the client for the entire period from 8.00pm at night until 8.00am the next day. I note also that, during her employment, the complainant did not raise a grievance in respect of any difficulty regarding her ability to take her breaks.

In support of the complainant’s position with regard to the issue of breaks, Mr Grogan referred to the Labour Court case of Jakonis Atanas and Nolan Transport, DWT 1117. It is my view that the circumstances that arose in the case of Mr Atanas are different from those in the case under consideration here.   Unlike Mr Atanas, who was a truck driver, when she worked a 12 hour shift, the complainant had the opportunity to take a proper break of at least one hour.

I have found that, on less than 2% of the days that she was employed by the respondent, the complainant was prevented from taking her full entitlement to a daily rest break, and, on this basis, there was a breach of the Organisation of Working Time Act 1997. I decide therefore, that the respondent is to pay the complainant compensation of €360, which is equivalent to approximately 2% of the wages that she earned when she was employed by the respondent.

In her complaint form, the complainant said that she was “not paid annual leave at rate entitled to under section 20(2)(a).” This refers to the obligation of an employer to pay an employee for annual leave in advance of taking the leave. At the hearing of this complaint, Mr Grogan said that this specific complaint relates not to the timing of the pay for annual leave but to the failure of the respondent to include the Sunday premium and public holiday premium in the complainant’s holiday pay.

The respondent said that the complainant was paid for 30 hours of holidays in February 2018 at a rate of €10 per hour. When she was leaving the respondent’s employment, she was paid for 137.96 hours of outstanding holidays.

Section 20(2)(b) of the 1997 Act provides that, in respect of holiday pay, an employee is to be paid “at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate.”

As the complainant’s normal weekly rate of pay included a Sunday premium, her holiday pay should have been calculated so that the Sunday premium was included.

From the rosters submitted in evidence, it appears that the complainant worked every Sunday and her holiday pay should have included a premium of 20% for the hours that she would normally work on Sundays. From the rosters submitted in evidence, it appears that she worked a 12 hour shift from 8.00pm on Saturday until 8.00am on Sunday, which means that she worked for eight hours (12.00 midnight to 8.00am) on Sundays.

As I have found that there has been a breach of section 20(2)(b) of the 1997 Act in respect of the appropriate pay for holidays, I decide that that the respondent is to pay the complainant compensation of €100. This is an estimate of the amount not paid to the complainant as a result of the respondent’s failure to include the 20% premium for Sunday working in the complainant’s holiday pay.

In her complaint form, the complainant said, “I did not receive my proper public holiday entitlements.”

In advance of the hearing of this complaint, the respondent acknowledged that the complainant was paid incorrectly in respect of six public holidays arising between August 2017 and June 2018. The HR manager calculated that the amount due to the complainant to rectify the shortfall is €382.40.

I accept that there was a shortfall in the public holiday pay paid to the complainant in respect of six public holidays when she was paid a premium of 20% instead of double time.   The respondent conceded that this was an error and that the complainant is owed €382.40 in respect of this shortfall.

If the respondent has not already paid the shortfall to the complainant, I decide that, in respect of this particular complaint about public holiday pay, the respondent is to pay the complainant compensation of €382.40.

CA-00023749-001: €360.00       Reason: Failure to inform the complainant about a PRSA

CA-00023749-002: €360.00       Reason: Failure to ensure that the complainant got her breaks

CA-00023749-004: €100.00       Reason:   Failure to include the Sunday premium in holiday pay

CA-00023749-005: €382.40          Reason: Failure to pay double time on public holidays

Total award:             €1,202.40

Statement of terms and conditions of employment, hours of work, breaks, public holiday pay, holiday pay.