ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Bus Driver | Employment Agency |
Representatives |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00020555-001 | ||
CA-00020555-002 | ||
CA-00020555-003 | ||
CA-00020555-004 | ||
CA-00020555-005 | ||
CA-00020555-006 | ||
CA-00020555-007 | ||
CA-00020555-008 | ||
CA-00020555-009 | ||
CA-00020555-010 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Respondent is an employment agency which employed the Complainant from 18th October 2016 to 25th April 2018 and placed him with a logistics company initially as a general operative and then from 20th March 2018 in the position of bus driver. The herein complaints were submitted to the Workplace Relations Commission on 2nd July 2018. In accordance with Section 41 (6) of the Workplace Relations Act 2018, the cognisable period for the herein complaints is six months ending on the date of the referral of the complaints which gives a cognisable period from 3rd January 2018 to 2nd July 2018. However, the Complainant’s employment with the Respondent ended on 25th April 2018 and, therefore, the cognisable period cannot extend beyond that date. Accordingly, the cognisable period for the herein complaints is the period from 3rd January 2018 to 25th April 2018. The following complaints were withdrawn at the hearing: CA-00020555-007 and CA-00020555-008. |
CA-00020555-001 Unfair Dismissal
Summary of Complainant’s Case:
The Complainant submits that he was unfairly dismissed. It is the Complainant’s position that if the Respondent is an agency, then the hirer is the correct Respondent for the purpose of the UD complaint. |
Summary of Respondent’s Case:
The Respondent confirmed that it is an employment agency. |
Findings and Conclusions:
Section 13 the Unfair Dismissals (Amendment) Act 1993 provides that the entity which hires an individual from an employment agency is deemed to be the employer for the purposes of the Unfair Dismissals Acts. Accordingly, I find that the hirer is the correct Respondent for the purpose of this complaint under the Unfair Dismissals Act. The hirer has accepted that they are the correct Respondent for the purpose of the referral under the Unfair Dismissals Act and that referral is the subject of alternative adjudication proceedings. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that this complaint is not well founded. |
CA-00020555-002 Terms and Conditions of Employment
Summary of Complainant’s Case:
The Complainant submits that Section 3(g) and (ga) are not set out; that the annual leave year is not the statutory leave year; that he was not advised of Pension/PRSA arrangements; Section 2 is not fully compliant – the Complainant was not properly informed of his rest breaks. The Complainant submits that, as a foreign national who is less likely to be aware of their employment rights, it is of paramount importance that he be furnished with a contract of employment. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant received his contract of employment on 18th October 2016, at which point the six month time period, within which a complaint in relation to a breach of Section 3 of the 1994 Act must be made, started to run. As the Complainant’s complaint referral form was received by the WRC on 2n July 2018, the six month time limit provided under Section 41 of the Workplace Relations Act for the submission of a complaint had expired. |
Findings and Conclusions:
The time limits for submitting claims to the Workplace Relations Commission under the Terms of Employment (Information) Act 1994 are set out in Section 41 of the Workplace Relations Act 2015. Section 41 (6) of the Workplace Relations Act provides that: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him 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.”
If a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015: “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not 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.”
An Adjudication Officer has no power to extend the time limit beyond 12 months after the last alleged contravention. The Complainant has alleged that the Respondent contravened the Terms of Employment (Information) Act, 1994 in the document entitled “Terms of Engagement” which was issued to the Complainant on 18th October 2016. The relevant initiating complaint form was received by the Director General of the Workplace Relations Commission on 2nd July 2018. Even if the extension was granted, the twelve-month time limit within which the initiating complaint form should have been submitted to the Workplace Relations Commission expired, at the latest, on 17th October 2017. The Complainant, therefore, lodged this complaint out of time. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the Complainant has failed to submit the herein complaint within the required time limit and, therefore, I do not have the jurisdiction to hear the complaint. |
CA-00020555-003 Rest breaks
Summary of Complainant’s Case:
The Complainant submits that he worked from 7am to 6pm each day, a total of 11 hours. He accepts that he received a 30 minute break at 1pm but he asserts that he did not receive a second 15 minute break to which he was entitled. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant was employed as a general operative until 20th March 2018 when he became a bus driver. The Respondent submitted a copy of the Complainant’s “Terms of Engagement” which was issued to him when he commenced employment with them. A confirmation of receipt of the “Terms of Engagement” signed by the Complainant was also provided. In relation to rest breaks the document provided that “there shall be a rest interval from 10.00am to 10.15am and from 1pm to 1.30pm respectively or as per particular site arrangements”. The Respondent submits that the Complainant was informed of the site arrangements for the site in which he worked. The Respondent provided the hearing with the following information in relation to the Complainant in respect of each week during the cognisable period: (i) hours on gate record; (ii) total hours reckoned for payment purposes; (iii) of which paid breaks; (iv) effective hours worked. Each week in turn was then broken down by day and the following information was provided in relation to each day: (i) total hours; (ii) breaks; (iii) effective hours worked. The Respondent submits that between January 2018 and 19th March 2018 the Complainant, who was then a general operative, availed of a newly created canteen which was closer to the working area. That meant that he was not scanning via the internal barriers when taking breaks as the internal scanning barriers were located closer to the previous canteen area. The Respondent further submits that the bus timetable (a copy of which was adduced at the hearing) shows that the bus does not operate between 9.00 and 9.30; 12.00 and 12.30 and 15.00 and 15.00 and, therefore, when the Complainant became a bus driver he had three 30 minute breaks during the day. The Respondent submits that from 20th March to 25th April 2018 when the Complainant worked as a bus driver he was again using the old canteen and was scanned by the internal barriers when taking breaks. The Respondent submitted a copy of the scanner logs at the hearing which show that the movements of the Complainant coincide with the times when the buses were not running. |
Findings and Conclusions:
Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks as follows: “(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1). (3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour). (4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).” The issue in dispute here is whether the Complainant received the breaks to which he was entitled under Section 12 of the Act. The Complainant alleges that while he did receive a break of 30 minutes duration, he did not receive a second break of 15 minute duration to which he was entitled. To demonstrate that employees get the breaks to which they are entitled, Section 25(1) of the Act requires employers keep records to show compliance with Section 12 as follows: “An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.” Regulation 3 of the Organisation of Working Time (Records) Regulations 2001 prescribes the form of records to be maintained under section 25(1) of the Organisation of Working Time Act as follows: “The records required to be kept under section 25(1) shall contain the following particulars and documents— (a) the name and address of each employee concerned, the number known as the [Personal Public Service] number that has been assigned to him or her and a brief statement (which may be by reference to any form of job description or classification used by the employer concerned) of his or her duties as an employee, (b) a copy, as appropriate, of the statement provided to each employee concerned in accordance with the provisions of the Terms of Employment (Information) Act 1994 (No. 5 of 1994), or any order or regulation made under that Act, that relates to him or her, (c) (i) the days and total hours worked in each week by each employee concerned, (ii) any days and hours of leave in each week granted by way of annual leave or in respect of a public holiday to each employee concerned and the payment made to each employee in respect of that leave, (iii) any additional day's pay referred to in section 21(1)(d) provided in each week to each employee concerned, and (d) a copy of a written record of a notification issued to an employee concerned in relation to any of the matters provided for in section 17 (including a copy of a notice posted in the manner referred to in subsection 5 of that section), and shall generally be in such form as will enable an inspector to understand the particulars contained in them without difficulty.”
I find that the evidence adduced by the Respondent supports their contention that the Complainant received the rest breaks to which he was entitled. In the absence of evidence to the contrary from the Complainant, I find that this complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that this complaint is not well founded. |
CA-00020555-004 Not notified of hours in advance
Summary of Complainant’s Case:
The Complainant submits that he was not notified of overtime at least 24 hours in advance. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant only worked overtime at weekends. At no stage was the Complainant forced to work overtime which had not been agreed in advance via a weekend working request form. The Respondent submits that the weekend working request form contains a statement to the effect that the decision to work weekend overtime must be notified to the main contractor on the site by Thursday. The Respondent submits that the overtime would be confirmed to the Complainant by his supervisor on Friday morning. |
Findings and Conclusions:
Section 17 of the Organisation of Working Time Act provides that an employee shall be entitled to be notified in advance of the hours which the employer will require the employee to work, subject to unforeseen circumstances justifying a change in the notified times as follows: “(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee's employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week. (2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week.” I note the Respondent’s submission that when the Complainant worked overtime at the weekend he filled out a weekend working request when was submitted to the main contract on Thursday. In the absence of any evidence to the contrary from the Complainant, I find that, through filling out the weekend working request, the Complainant would have been aware well in advance when he would was due to work overtime. Accordingly, I find that this complaint is not well founded. |
Decision: 17th May 2019
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that this complaint is not well founded. |
CA-00020555-005 Payment of Wages - Minimum notice
Summary of Complainant’s Case:
The Complainant submits that he was unfairly dismissed and was not paid the notice to which he was entitled. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant was dismissed for gross misconduct and is, therefore, not entitled to payment of notice. |
Findings and Conclusions:
Section 8 of the Minimum Notice and Terms of Employment Act 1973 provides the right to terminate the contract of employment without notice as follows: “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”
The Respondent is an employment agency which hired the Complainant out to another entity. The hirer is the correct Respondent for the purpose of the Unfair Dismissals Acts. The dismissal of the Complainant was the subject of another adjudication hearing. Arising from that hearing, I found that the Complainant was fairly dismissed for gross misconduct. Accordingly, I find that this complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that this complaint is not well founded. |
CA-00020555-006 Minimum notice
Summary of Complainant’s Case:
The Complainant submits that he was unfairly dismissed and was not paid the notice to which he was entitled. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant was dismissed for gross misconduct and is, therefore, not entitled to payment of notice. |
Findings and Conclusions:
I find that this complaint has been disposed of following my findings above in CA-00020555-005. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that this complaint has been disposed of following my findings above in CA-00020555-005. |
CA-00020555-009 Public Holiday entitlement
Summary of Complainant’s Case:
The Complainant submits that he was paid for public holidays at the standard rate but because he was required to work overtime, the rate for public holidays should have been calculated as the average daily rate for the preceding thirteen weeks. |
Summary of Respondent’s Case:
The Respondent submits that the Complainant was working set hours and that any overtime worked was voluntary. The Respondent submits, therefore, that payment in respect of public holidays should have been calculated at the standard rate. |
Findings and Conclusions:
Regulation 3(2)of the Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 (S.I. No. 475/1997) prescribes the calculation of the weekly rate of pay for holidays for an employee, such as the Complainant, whose pay does not vary in relation to the work done by him as follows: “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.” Regulation 5 further prescribes the calculation of the appropriate rate of pay for a public holiday for employees who come within the ambit of Regulation 3(2) as follows: “(1) If the employee concerned works or is normally required to work during any part of the day which is a public holiday, then— (a) in case the employee's pay is calculated wholly by reference to any of the matters referred to in Regulation 3(2) of these Regulations, the relevant rate in respect of that public holiday shall be the sum that is equal to 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) paid to the employee in respect of the normal Daily hours last worked by him or her before that public holiday,” The Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 explicitly excludes payment for overtime in the calculation of the appropriate rate of pay for a public holiday. I find, therefore, that this complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that this complaint is not well founded. |
CA-00020555-010 Annual Leave
Summary of Complainant’s Case:
The Complainant submits that he did not receive appropriate annual leave. The Complainant also submits that he was paid for annual leave at the standard rate but because he was required to work overtime, the rate of pay for annual leave should have been calculated as the average rate for the preceding thirteen weeks. In addition, the Complainant submits that he was not paid in advance for his annual leave. The Complainant further submits he was entitled to take his annual leave in blocks of weeks, and that this was not the way in which he availed of his annual leave entitlement and, accordingly, that the Respondent had breached the provision of Section 20 of the Organisation of Working Time Act. |
Summary of Respondent’s Case:
The Respondent submits that the during the leave year from 1st April 2017 to 31st March 2018, the Complainant received the following annual leave of 187.6 hours and included an unbroken two week period: Week starting 8th April 2017 – 40 hours Week starting 10th June 2017 – 8 hours Week starting 15th July 2017 – 78 hours (unbroken two weeks) Week starting 28th October 2017 – 8 hours Week starting 16th December 2017 – 38 hours Week starting 29th March 2018 – 15.6 hours The Respondent further submits that in the leave year commencing 1st April 2018 the Complainant received 23.4 hours annual leave which was in excess of his entitlement as he did not work for the Respondent after 25th April 2018. The Respondent submitted copies of the Complainant’s payslips which show that he received annual leave payments in advance. |
Findings and Conclusions:
Appropriate annual leave Section 19 of the Organisation of Working Time Act provides “(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… … (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… … (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.” I note the Respondent’s submission that the Complainant received 187.6 hours annual leave in the 2017/18 annual leave year which is equivalent to four weeks of 46.9 hours each. I also note that the Complainant received 23.4 hours of annual leave in the leave year commencing 1st April 208 even though he did not work for the Respondent after 25th April 2018. As the Complainant did not adduce alternative evidence to undermine the credibility of the Respondent’s evidence in relation to the allocation of annual leave, I find that the complaint under this heading is not well founded.
Appropriate payment for annual leave Regulation 3(2)of the Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 (S.I. No. 475/1997) prescribes the calculation of the weekly rate of pay for holidays for an employee, such as the Complainant, whose pay does not vary in relation to the work done by him as follows: “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.” The Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 explicitly excludes payment for overtime in the calculation of the appropriate rate of pay for annual leave. I find, therefore, that this complaint is not well founded. I note that the Respondent adduced evidence to show that the Complainant was paid in advance for his annual leave. As the Complainant did not adduce alternative evidence to undermine the credibility of the Respondent’s evidence in relation to the advance payment for annual leave, I find that the complaint under this heading is not well founded.
Entitlement to take annual leave in blocks of weeks 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.” The Act provides that the timing of annual leave “shall be determined” by the employer,” but “subject to the employer having consulted the employee.” Whilst the Act specifically provides that an employee’s annual leave must include an unbroken period of two weeks’ leave (subject to eight weeks worked in a year) there is no provision for the remaining leave to be taken only in blocks of one week. If this was the case, it would result in a disadvantage to an employee who needed to take one or two days’ leave or even a half day’s leave for a particular reason. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that this complaint is not well founded. |
Dated:
Workplace Relations Commission Adjudication Officer:
Key Words:
Terms of employment, rest breaks, notification of hours in advance, minimum notice, public holiday entitlements, annual leave entitlements. |