Complainant

Respondent

Anonymised Parties

An employee

A hotel group

Representatives

Blazej Nowak

Judy McNamara IBEC

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-00019845-001

14/06/2018

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

CA-00019845-002

14/06/2018

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

CA-00019845-003

14/06/2018

The Complainant’s representative lodged two sets of claims, the first on 6th December 2017 as follows:

Under ADJ – 00012176 /Complaint reference CA- 00016216 – 001 filed under the National Minimum Wage Act 2000 the specifics of this complaint are that the Complainant is claiming breach of the National Minimum Wage At.

This complaint had originally been included with 24 other complaints under ADJ – 00008553, these were heard on 29th March 2018, due to the Respondent not been notified that this NMW complaint was included the Adjudication Officer advised that this single complaint under the National Minimum Wage could be the subject of a hearing on its own. This was arranged, the complaint was allocated the file reference ADJ – 00012176 / CA – 00016216 – 001.

The Complainant, on 14th June 2018, submitted three further complaints under file reference ADJ – 00015293, three complaints were included in this file: CA 00019845 – 001 ; CA-00019845 – 002 and CA – 00019845 – 003.

The four complaints were the subject of hearing on 20th September 2018, the adjudication decision for all four complaints will be included in the Adjudication Decision Reference ADJ – 00015293.

The Complainant has been employed by the hotel group since 17th October 2004, her job title is Food & Beverage Assistant in the hotel’s restaurant. Her current rate of pay is €10.29 per hour.

The Complainant has been on long term sick leave since 23rd January 2017 due to back pain. She returned to work on 2 days in 2017, working for 7.52 hours on 30th January 5.72 hours on 10th March 2017 respectively. In 2018, the Complainant returned to work on 14th April until mid-July 2018, when she again went on sick leave, returning to work on 13th September 2018.

The representative of the Complainant produced no submission at the hearing. Verbally he stated that the Respondent was in breach of Section 14 of the Organisation of Working Time Act, 1997, he stated that the Respondent was also in breach of Section 22 of the Organisation of Working Time Act, 1997 and that the statement of particulars of employment did not comply with legislation, the Terms of Employment (Information) Act of 1994.

The other complaint carried over from a previous hearing related to a breach of the National Minimum Wage Act of 2000 (Ref – ADJ – 00012176 / CA- 00016216).

Section 14 of the Organisation of Working Time Act 1997 relates to Sunday premium.

Section 22 of the Organisation of Working Time Act relates to payment for Public Holidays.

Section 3 of the Terms of Employment (Information) Act relates to the issue of a written statement of the particulars of employment.

No further particulars of the complaints were provided by the Complainant’s representative.

Alleged breach of National Minimum Wage Act 2000 – Complaint ref CA – 00016216 – 001.

The claim form submitted by the Complainant indicates that the Complainant’s hourly payment at that time was €9.89 per hour, notwithstanding that the National Minimum Wage in 2017 was €9.55 per hour. The Complainant requested statements of average hourly rate of pay for periods:

2nd to 8th October 2016

2nd to 15th October 2016

2nd to 22nd October 2016

2nd to 29th October 2016

Full month of October 2016.

Taking the full period outlined in the Complainant’s documentation referred to from 26th September 2016 to the 30th October 2016 the Complainant was paid a total of €2,110.98 in respect of a total of 213.24 hours. Each hour therefore taken into account was paid at €9.8995 when averaged over the full period.

On the basis of the foregoing, it is the Respondent’s position that the Complainant has, at all times, been paid €9.90 per hour, substantially in excess of the national minimum wage, which in 2016 for the pay reference periods outlined, was €9.15 per hour.

Alleged breach of the Organisation of Working Time Act 1997 – Complaint ref CA -00019845 – 001.

The claim as filed alleges “I claim breach of section 14”.

In relation to this claim the Respondent points to the contract of employment where it is stated that remuneration for Sunday working is included in a composite rate for the Respondent’s employees (a copy of the employment contract was attached to the submission).

The differential between the National Minimum Wage and the hourly rate paid by the Respondent was 5% up to the 1st January 2018 when a further increase of 5% was applied.

It is the Respondent’s contention that no breach of section 14 has occurred.

Alleged breach of the Organisation of Working Time Act 1997 – Complaint ref CA -00019845 – 002.

The claim as filed alleges “I am claiming a breach of section 22”.

The relevant period in relation to this claim is the period from 15th December 2017 to 14th June 2018.

The Adjudicator is asked to note that numerous complaints, a number of which were in relation to not having received public holiday entitlements in respect of March 2017, Easter Monday 2017, May Public Holiday 2017, June Public Holiday 2017 and August Public Holiday 2017. These complaints were heard by the Adjudicator on 29th March 2018, at which time it was submitted by the Respondent that the Complainant had an accrued balance of 33.05 hours in respect of public holidays which had been banked for the Complainant on her return to work from sick leave. The Adjudicator found that this balance should be paid t the Complainant forthwith and in line with the Adjudicator’s decision, the sum of €333.47 was duly discharged to the Complainant in June 2018.

The complaint presented to the Adjudicator is not specific as regards this complaint but given the claims previously it is assumed that the complaint is similar to those previously filed at the WRC i.e. payment for Public Holidays arising in the period captured within the six month period prior to lodging this set of claims. That being the case, within the period from 15th December 2017 to 14th June 2017, there have been a total of 6 public holidays, namely 25th and 26th December 2017, 1st January 2018, 17th March 2018 and May and June Public Holidays.

All the above Public Holidays were paid.

Alleged breach section 7 of the Terms of Employment (Information) Act,1994 – Complaint ref CA – 00019845 – 003.

The claim as filed alleges “The statement as provided to me in 2017 does not comply with the legislation”.

A preliminary matter arises regarding this claim. The Complainant filed 15 claims under this legislation on 12th July 2017, claiming breaches of each subsection of section 3 of the Act, under Adjudication Reference number ADJ – 00008553. These claims were adjudicated upon (with numerous others under different legislation) on 29th March 2018 and a decision was issued by the Adjudicator Mr Jim Dolan on 17th May 2018.

These decisions were subsequently appealed by the Complainant to the Labour Court on 14th June 2018 and the appeal documentation is attached. The Labour Court will hear the appeal on 5th October 2018.

On the basis of the foregoing it is the Respondent’s position that the claims filed under the Terms of Employment (Information) Act 1994 are res judicata, having already been adjudicated upon and at this time pending appeal to the Labour Court.

Without prejudice to the preliminary issue as outlined above, it is the contention of the Respondent that the contract of employment as issued to the Complainant in 2017 complies fully with the requirements of the Terms of Employment (Information) Act, 1994.

While the initial claims under this Act, as filed on 12th July 2017, were specific as to the alleged breaches of the Act, the claim before the Adjudicator today is vague as to the alleged breaches. Accordingly, it is not possible for the Respondent to identify the reasoning of the Complainant in grounding this claim. However, the Respondent does contend that in the unlikely event that a breach or breaches of the Act were identified by the Adjudicator following today’s hearing, any such could not be said to have, or have had, a practical impact on the Complainant during her employment.

Case Law:

Labour Court Determination in Grant Engineering v Denis Delaney (Number TED 1728). The Court found that it was ‘clear to the Court that the within appeal derives from complaints as regards alleged contraventions of the Act which have had no practical impact on the Appellant during his employment with the Respondent’. It had been agreed between the parties that the Appellant in that case had suffered no detriment as a result of the contraventions of the Act.

In this determination, the Court went on to cite Patrick Hall v Irish Water {TE 15/6}, and considered the nature of complaints which could be argued to be deriving from events or alleged contraventions of law which have no practical effect and commented as follows:

“As appears from the above, these complaints are wholly devoid of any substantive merit. The State has already incurred the costs of providing the Complainant with a hearing of those complaints at first instance and it is not obliged to incur the cost in time and expense of providing him with a full appeal before a division of the Court. That takes no account of cost incurred by the Respondent in defending this case, both at first instance and now on appeal. The combined associated costs of processing and hearing these complaints is grossly disproportionate to any value that could have accrued to the Complainant if the technical infringement of which he complains had not occurred”.

Conclusion.

In conclusion, on the basis of this submission and the evidence adduced and furnished in the booklet herewith, the Adjudicator is respectfully requested to find in favour of the Respondent.

Alleged breach section 7 of the Terms of Employment (Information) Act,1994 – Complaint ref CA – 00019845 – 003.

This complaint was addressed at a previous hearing and the Respondent’s representative is correct in pointing out that it is res judicata.

This complaint therefore is not well founded and must fail.

Alleged breach of the Organisation of Working Time Act 1997 – Complaint ref CA -00019845 – 001.

The Respondent pays a composite rate of pay per hour, this hourly rate incorporates a premium for Sunday working. The Respondent’s representative as per submission has provided a detailed breakdown of hourly rates and compared these to minimum wage. There is no breach. The Respondent’s current hourly rate is 10% greater than the minimum wage.

This complaint is not well founded and fails.

Alleged breach of the Organisation of Working Time Act 1997 – Complaint ref CA -00019845 – 002.

The Complainant has received payment for all public holidays and the Respondent produced wage slips that show that this is the case.

This complaint is not well founded and must fail.

Alleged breach of National Minimum Wage Act 2000 – Complaint ref CA – 00016216 – 001.

The Respondent provided the statements as requested by the Complainant and also provided wage slips. There is no breach of the National Minimum Wage 2000.

This complaint is not well found and must fail.

All complaints fail as outlined above.