Complainant

Respondent

Parties

Complainant

Respondent

Anonymised Parties

An Employee

A Limited 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-00028062-001

24/04/2019

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

CA-00028062-002

24/04/2019

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

CA-00028062-003

24/04/2019

The complainant is a Dispatcher, and as such is responsible for receiving requests for service and dispatching an ambulance to carry out the assignment. The complainant is based in the Respondent’s Company office in XXX, Dublin.

CA 00028062 -001 (Organisation of Working Time)

The complainant states that he has not received a Sunday payment, or it is not clear when or if he  receives it, when he works his rostered Sunday. He works a Sunday approximately 10 times annually. The complainant first raised this issue with the Respondent in or around November, 2016. The complainant is not happy with the response he has received from the Respondent and has been forced to bring this claim to seek clarity on the point.

CA 00028062 -002(Payment of Wages)

Over the weekend the complainant works at the respondent premises, taking calls from 9am to 7pm. From 7pm to 10pm, on a Saturday and Sunday, he is required to be available to take calls should the ambulance personnel not be available to do so. He is required to carry a ‘second point of contact’ phone and be available to answer same, deal with any requests that are made and dispatch an ambulance when required. He is not paid for those three hours.

CA-00028062-003 (Terms of Employment)

The complainant states that there has been a fundamental change to the terms of his contract with the respondent. Originally, he was paid per shift. Now, since the change, he is paid depending on the hours worked. He was not given notice in writing or otherwise of the change to the terms and conditions of employment.

The claimant had been employed as a Dispatcher since September 2016.

As a Dispatcher the claimant is responsible for receiving requests for service and dispatching an ambulance to carry out the assignment. The claimant is based in the Company’s office in XXX Dublin.

In January 2019 the Company, after reviewing the Terms and Conditions of employment and conducting a survey amongst employees, decided to make a number of changes to their payroll systems, including the bringing the payroll system in house where it was previously managed by an outsource payroll company and also making changes to the method of how salaries are calculated, moving from a monthly salary basis to a per shift basis. The purpose of these changes was to take into account the need to streamline and make payments more accurate in reflecting the work done by individuals and secondly to assist in the changes being required by Revenue in terms of payments being moved to a “live” monthly basis.

It had been the company’s intention, in the first instance, that it would deal with non-salary personnel, which excluded the Dispatch staff, and applied a 4% increase to the other staff.  However, when implementing the changes, it was discovered that the salary increases of 4% had been mistakenly applied to all staff, including the salaried staff.

When discovering this mistake, rather than the company recouping the overpaid money from employees it was decided to apply the 4% increase to the salaried staff as well. In addition, this was also backdated to the 1st January, even though it had never been intended to apply it to them in the first place.

The claimant was not happy with the changes being made and wrote to the company raising a number of queries which is now encapsulated into his claims before you today.

CA-00028062-001

The claimant is maintaining that he has not received a Sunday payment when he works his rostered Sunday, which happens approximately once every 5 weeks. In this regard the claimant maintains that he first raised this when he received his first payslip in November 2016, and at that time was advised that the Sunday premium formed part of his normal pay.

 In this regard, in referring to terms and conditions of employment which have been signed by the claimant under the statement of hours of work, the conditions of employment state that employment is based on a working week from Monday to Sunday inclusive. In relation to pay it was identified under the heading “Salary”, that the claimant is a member of the salary personnel and that his payment is made once a month.

Company Position

The claimant maintains that he has not been paid his Sunday premium in accordance with the provisions of the Organisation of Working Time Act. However, the company would draw the chairperson’s attention to the fact that the claimant has confirmed that he was a salaried employee, which meant he received the same monthly payment whether the month included a Sunday or not,  and also that when he specifically raised a query in relation to a Sunday premium in 2016, he was advised, at that time, the premium was incorporated into his salary.

The company contend that had the claimant a difficulty with that guidance at that time the company had appropriate procedures which the claimant could have followed to address any concerns he may have had in this matter. Furthermore, the claimant has continued to accept payment from the company in the full knowledge that his salary was paid to him based on a working roster which covers Monday through to Sunday working.

The company contend that, in this particular matter, the claimant has been paid a Sunday premium and that he was fully aware of this Sunday premium, therefore he had been put on notice of this fact. The company would go further and argue that the claimant cannot now deny that he was fully aware that his rate of pay incorporated his Sunday premium and therefore to make a claim in 2019, 2 years later, after being advised of this matter is not a valid claim at this stage.

CA-00028062-002

The company understands that this claim appears to relate to weekends when the claimant carries a contact phone for 3 hours, during which time there is a change in shift personnel.

At weekends, when the claimant is on duty from 9am to 7pm, on the company’s premises, he is the first point of contact for any calls that may come in. After the claimant’s shift ends, at 7pm, the first point of contact phone is carried by the ambulance personnel who remain on duty up until 10pm. At this time the night shift takes over and carry the first point of contact phone. During the period 7pm and 10pm at the weekend, the claimant would have, in his possession, a second point of contact phone, which would only be activated when the first point of contact person is unavailable.  This is part of normal practice for all dispatchers and is regarded as part of their normal duties.

The claimant would appear to be maintaining that other personnel, who may be brought in to work early to provide cover on occasion are paid overtime for providing this cover.  It should be noted that any payment made to personnel for the period 7pm to 10pm, at weekends, are personnel who are brought in to the company premises and are actually involved in working time. However, it would appear that the claimant seems to be making a request that he should be paid overtime even though he is not actually rostered to attend on site at this time.

Company Position

The claimant has referred to payments being made to other personnel. As the Chairperson would be aware, under the Payment of Wages Act, the wages are referred to as payments which a person is “properly entitled” to receive payment for. In this case the claimant would appear to be arguing that he should be paid throughout at overtime rates albeit that he is not assigned to the workplace nor carrying out the full Dispatcher duties for the duration of this time.

The company contend that the claimant has been paid all wages to which he is properly entitled and therefore has no basis for claiming payments for time on a Sunday evening when the claimant is not at work at that time.

CA-00028062-003

The claimant is contending that there has been a change to his terms and conditions of employment.

In this regard, in 2019 the company, as explained above, reorganised the method of calculating pay for all personnel, by linking it to shifts/time actually worked. As a consequence these payments accurately reflected time worked and wages due to staff, for time actually worked, which, as the Chairperson would be aware, has now become the format for payment of all tax and PRSI to Revenue by means of the new PAYE payments system. This means that in the case of the company, it is now paying all staff for hours actually worked and returning tax and PRSI payments for same on a monthly basis. In the case of the claimant, he is maintaining that the change in the payment method is in breach of his Terms and Conditions of employment and is seeking the Chairperson to rule accordingly.

The company believe that it is clearly stated in the claimants Terms and Conditions of Employment that the “Company reserves the right to amend the method of payment in compliance with the Payment of Wages Act 1991.”

The claimant’s payment was, as it happens, inadvertently changed by the company when they applied the changes to all personnel, including salaried personnel. As part of this application the company, when realising that it had inadvertently applied an increase to the salaried staff of 4%, had the option under the Payment of Wages Act to make the recoup the 4% from those staff and to reinstate them to the level of pay that they were due at the time of the mistaken payment but instead, the company applied the full 4% to those staff, including the claimant, going forward, and also applied the payment back to the first of January, thereby not only granting an increase which was not planned at this time, but also applying the full benefit of the increase to the claimant.

Company Position

The company contend that it has a right to amend the method of payment. In this regard the company amended the method of calculation of pay, but in so doing the claimant benefited by receiving an increase which not only had not been due to him but was also paid retrospectively, and the claimant still received pay for all the time he worked. You will note that at no time were there any objections raised by the claimant or refusal to accept the increased payment from the company.

Conclusion

The company believes that in relation to the issue of Sunday premium, it was very clear that the claimants’ terms and conditions of employment stated he was rostered to work Monday to Sunday and was also being paid a salary. The claimant also himself raised a query concerning Sunday premium and was advised at the time, in 2016, that this formed part of his pay. From that time onwards, whilst the claimant has maintained that he raised queries in this regard, it is very clear that the claimant did not pursue and formal grievance or claim under the Organisation of Working Time for an additional premium albeit  that it is patently clear that the claimant was aware, since 2016, that a premium was included in his salary.

The company contend that in such case, there is no basis to the claim by the claimant.

In relation to the matter of the claim for holding the second contact phone, again it is clear that the claimant was advised that this was part of the normal duties of a Dispatcher and is carried out by all other dispatchers. The difficulty the claimant appears to have is that, on occasion, members of staff are requested to attend at work and when asked are paid a payment for working those additional hours. This would be no different to the claimant if he was brought in for additional hours. Therefore, the claimant is being treated no less favourably than any other employee in the company and is not entitled to any additional payment.

Finally, it is very clear that in accordance with the claimant’s terms and conditions of employment, that the method of salary payment may be changed. In this particular case the company would content that there was no breach of the claimant’s terms and conditions of employment.

We would therefore request the Chairperson to reject the claims made by the claimant in relation to all of these matters.

CA 28062- 001 ( Organisation of Working Time)

Section 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.

Having considered the evidence of both parties together with the documentation submitted, I am satisfied that the complainant is paid a Sunday Supplement is line with the Act, and same is incorporated into his salary.

The complaint fails.   

CA 0028062 -002( Payment of Wages)

The complainant is seeking payment for the three hours, 7pm-10pm, when he is on-call.  Between the hours of 9am to 7pm at the weekend the complainant works at the respondent’s premises. He is the first point of contact for anyone seeking ambulance assistance. His shift ends at 7pm. From then until 10pm the first point of contact phone is carried by the ambulance personnel because they remain on duty up until 10pm. At 10pm the night shift employees take over and they then are the first point of contact. Between the hours of 7pm and 10pm at the weekends, the complainant is required to carry a phone upon which anyone seeking ambulance assistance, who cannot contact the ambulance personnel, can seek assistance.  Ambulance personnel are not always available to answer the phone, as they might be physically attending to persons who require medical assistance. The respondent states that this is part of normal practice for all dispatchers and is regarded as part of their normal duties. The complainant does not take issue with it being part of his normal duties. He does take issue not being paid to be on-call. His contractual hours are 9am to 7pm. They are the contractual hours for which he is paid.

It is irrelevant, whether or not the complainant carries out his duties, full or otherwise, on the respondent’s premises or elsewhere. The fact that he has a contractual responsibility to take calls from 7pm to 10am should the first point of contact not be available, means that he is on call and in doing so is performing that contract duty outside of the hours for which is he paid.  He is entitled to be paid for those three additional hours.

This particular claim is limited to the statutory six month period, from the date of filing the claim.  Together with the six months pre-filing, going forward the complainant should be paid for the hours he is on-call regardless of whether he actually has to take a call or not.  

CA 0028062- 003 – (Terms of Employment)

Based on the evidence of the respondent, I note that in January 2019 the Company, decided to make a number of changes to their payroll systems, making changes to the method of how salaries are calculated and moving from a monthly salary basis to a per shift basis. They state that the purpose of these changes was to take into account the need to streamline and make payments more accurate in reflecting the work done by individuals and secondly to assist in the changes being required by Revenue in terms of payments being moved to a “live” monthly basis.

The respondent’s obligations in relation to the amendments to the terms and conditions in relation to pay are set out in Section 5 of the Act as follows:

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3 , 4  or 6 , the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.

7.—(1) An employee may present a complaint to a rights commissioner that his or her employer has contravened section 3 , 4 , 5  or 6  in relation to him or her and, if he or she 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 recommendation in writing in relation to it and shall communicate the recommendation to the parties.

(2) A recommendation of a rights commissioner under subsection (1) 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) (i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5  or 6 , or

 (ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the commissioner,

(d) order 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 4 weeks remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act, 1977 ,

I am satisfied that the respondent was in breach of its obligations pursuant to Section 5 of the Act in that they did not notify the complainant of the changes in relation to the calculation of the payments. The changes that were made are significant and do have the effecting of altering the complainant’s remuneration. It is irrelevant whether the changes are to the employee’s benefit or detriment.  I find that the complaint is well founded.

Pursuant to Section 7 (2) (d) I am awarding the complainant € 2,333.00

CA 0028062- 001 The complaint fails.

CA 0028062 -002 The complaint is well founded.

CA 28062 – 003 The complaint is well founded. I award the complainant € 2,333.00