Complainant

Respondent

Anonymised Parties

Employee

Employer

Representatives

Blazej Nowak

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-00019865-001

15/06/2018

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

CA-00019865-002

15/06/2018

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

CA-00019865-003

15/06/2018

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

CA-00019865-004

15/06/2018

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

CA-00019865-005

15/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00019865-006

15/06/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act, 1997 (CA-00019865-001, CA-00019865-002, CA-00019865-003, CA-00019865-004, CA-00019865-005). The Complaint CA-00019865-006 is withdrawn.

The Complainant was employed as a security officer by the Respondent Company on the 25th April 2016.

In relation to the following complaints, the appropriate time line is from the 1st of February 2018 until the 15th June 2018

In relation to CA-00019865-001, the Complainant alleges he was not given compensation for working on Sunday and claims this in breach of Section 14 of the Organisation of Working Time Act, 1997, and specifically refers to the dates of 11th February, 11th March, 25th March, 6th May 2018 and the 20th May 2018.

In relation to CA-00019865-002, the Complainant alleges he did not receive his public holiday entitlements and claims this is in breach of sections 21 and 22 of the Organisation of Working Time Act, 1997 and specifically refers to St. Patricks Day, Easter and the May and June bank holidays.

In relation to CA-00019865-003, the Complainant alleges he did not get any breaks and claims this is in breach of Section 12 of the Organisation of Working Time Act, 1997 but no specific times or dates were presented but the Complainant relied on the provisions of Section 25(4) of the Act.

In relation to CA-00019865-004, the Complainant alleges he did not get weekly rest periods and claims this is in breach of Section 13 of the Organisation of Working Time Act, 1997 and specifically refers to the dates between the 9th March and the 16th March ,19th April and the 27th April and   3rd May and the 11th May.

In relation to CA-00019865-005, the Complaint alleges he did not receive his paid holiday/annual entitlement and this in breach of Sections 19 and 20 of the Organisation of Working Time Act, 1997.  

In relation to CA-00019865-001, the Respondent Company stated the Complainant was paid the appropriate Sunday premium rate for the dates specified above. In that respect, the Respondent Company relied on its Sage Mircopay Professional system and the Complainants payslips.

In relation to CA-00019865-002, the Respondent Company stated the Complainant was paid double on bank holidays and all entitlements were paid as appropriate. In that respect, the Respondent Company relied on its Sage Mircopay Professional system and the Complainants payslips.

In relation to CA-00019865-003, the Respondent Company stated the Complainant did receive the appropriate breaks pursuant to Section 12 of the Organisation of Working Time Act, 1997, and relied on the printout from the clock in/clock out system

In relation to CA-00019865-004, the Respondent Company stated that employees would have the appropriate rest periods and weekly rest periods and in that regard the work roster would be changed on a regular basis.

The Respondent Company stated as per the letter of the 27th July 2018 that employees are entitled to a daily rest period of 11 consecutive hours per 24 hours, a weekly rest period of 24 consecutive hours per 7 days, following a daily rest period, a 15-minute break if working 4,5 hours and a 30 minute break if working 6 hours  

In relation to CA-00019865-005, the Respondent Company stated that employees are entitled to 20 days holidays and this can be carried over for six months. The Respondent Company believed that the Complainant had not requested any holidays (in this specific period of time) and this was accepted by the Complainant. Proof of holidays paid for in 2018 was provided by the Respondent Company’s Sage Mircopay Professional system

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

Section 27 of the Organisation of Working Time Act, 1997 provides:

27. (2) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee’s employer has contravened a relevant provision in relation to the employee and, if the employee or such a trade union does so, the commissioner shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties.

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment.

Section 13 of the Organisation of Working Time Act, 1997 provides:

13.—(1) In this section “daily rest period’’ means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

[1997.] Organisation of Working Time Act, [No. 20.] 1997. (b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee’s contract of employment— (a) the rest period granted to an employee under subsection (2), or (b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

Section 14 of the Organisation of Working Time Act provides,

14.—(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.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

(3) For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (‘‘the first-mentioned employee’’), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a

Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:

Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.

(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

(5) In subsection (3) ‘‘comparable employee’’ means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.

(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).

Sections 19 and 20 of the Organisation of Working Time Act 1997 provide:

19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as ‘‘annual leave’’) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

(3) 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.

(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee’s entitlements under subsection (1), 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.

(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.

(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.

20.—(1) 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.

(2) The pay in respect of an employee’s annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.

(4) In this section “normal weekly rate’’ means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.

Sections 21 and 22 of the Organisation of Working Time Act, 1997 provide:

21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

[1997.] Organisation of Working Time Act, [No. 20.] 1997. Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.

(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.

(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.

(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.

22.—(1) The rate—

(a) at which an employee is paid in respect of a day off under section 21, and

(b) of an employee’s additional day’s pay under that section,

shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.

On balance, I prefer the Respondents evidence which was supported by documentary proof. In the circumstances of this case, I specifically note that the Complainant has been facilitated by the Respondent Company in the course of his employment. Accordingly, pursuant to Section 27 of the Organisation of Working Time Act, 1997, I declare that the Complaints are not well founded.

I find that that the Complaint (CA-00019865-001) made pursuant to Section 27 of the Organisation of Working Time Act, 1997 is not well founded.

I find that that the Complaint (CA-00019865-002) made pursuant to Section 27 of the Organisation of Working Time Act, 1997 is not well founded.

I find that that the Complaint (CA-00019865-003) made pursuant to Section 27 of the Organisation of Working Time Act, 1997 is not well founded.

I find that that the Complaint (CA-00019865-004) made pursuant to Section 27 of the Organisation of Working Time Act, 1997 is not well founded.

I find that that the Complaint (CA-00019865-005) made pursuant to Section 27 of the Organisation of Working Time Act, 1997 is not well founded.

Pay