ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00021476

Parties:

Complaints:

Date of Adjudication Hearing: 12/08/2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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:

Summary of Complainant’s Case: CA 28238-001

He has claimed that when he was appointed Department Manager, he was obliged to work a short week and a long week ranging from 40 hours to 48 hours per week. He did not agree to work these hours. He was not paid for the hours worked in excess of 40 hours. He has claimed that he is owed 19.71 hours X €11.55.

2) Holidays

He worked 8 months and was entitled to 3 weeks holiday. He took one week’s holidays and was paid for one week at cessation of employment. He is owed at least 20 hours in holiday pay, if not one week.

3) Sunday Premium

He never received a premium for working Sundays. He has claimed 54.19 hours of pay.

4) Public Holidays

He was not compensated for working Public Holidays. He has claimed 26.25 hours of pay.

Time Limit

He was unaware of the six-month time limit for making a claim provided in the Act. He has sought an extension to the time limit. He stated that he was afraid to make a complaint in case he would lose his job. He didn’t actually accept the promotion. He did speak to his direct manager only about his grievances.

Summary of Respondent’s Case: CA 28238-001

Managers are in salaried positions and work 11 shifts per fortnight. They work a 6-day and then a 5-day week and the salary reflected that. Salaries contain a payment for Sunday working and bank holidays. There is no hourly rate and a manager’s exact hours rotate on the roster but are generally between 38 and 46 hours depending whether it’s a 5- or 6-day roster. There is no deduction from his wages and this part of the claim is rejected.

2) Holidays

They stated that he accrued circa 68 hours entitlement, being 8 % of total hours worked. He was compensated for 48 hours and the balance of 20 has been forfeited by the end of January 2019 because the company policy does not allow for a carryover. This part of the claim is rejected.

3) Sunday premium

He is paid an all-inclusive salary including compensation for working Sundays. This is in the contracts for all managers. Unfortunately, they were unable to locate his contract of employment, but they submitted other contracts in support. This part of the claim is rejected.

4) Bank Holidays

He was paid an all inclusive salary that covered Bank Holidays. The sample contract contains this clause. This part of the claim is rejected.

Findings and Conclusions:

I refer to the time limit as contained in the Workplace Relations Act:

Sec 41 (6) states, “ 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”.

Sec 41 (8) states, ”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”.

The Labour Court in the Cementation Skanska V Carroll DWT0342 stated, “ in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and the circumstances known to the complainant at the material time”

I note that the Complainant stated that he was unaware of time limits.

I find that a lack of knowledge of the law is not a defence.

I note that he stated that he did not raise these complaints with his employer because he was afraid that he would lose his job, yet he was promoted, so I do not accept that as a reason.

I find that the Complainant has not established a reason that explained the delay or afforded an excuse for the delay in presenting the claim to the WRC.

I have decided not to grant the extension to the time limit. The complaint was presented to the Commission on 8th May 2019 so the period that may be investigated is 9th November 2018 to 29th March 2019, the date of termination of employment.

Payment of Wages CA 28238-001

1)Wages

I note that the Respondent was unable to produce the written contract allegedly given to the Complainant.

However, I note that the Complainant confirmed that he worked 40 hours one week and 48 hours the next week.

I find that this is in keeping with what the Respondent affirmed was his contract of employment.

I do not accept that he didn’t accept this contract.

I find that he operated this arrangement so there was an offer and acceptance, there was consideration in the salary paid and he had the capacity the operate the arrangement. which are the fundamentals of any contractual agreement.

I find no basis for the claim for additional hours in excess of 40 hours.

I find that there was no illegal deduction from wages.

2) Holidays

I note that the Respondent accepted that 20 hours holiday pay was forfeited because the holidays were not taken by 31st December.

I do not accept this argument.

It is the Respondent’s responsibility to ensure that holidays are taken.

I find that the holiday year is defined in the Organisation of Working Time Act as running from 1st April to 31st March each year.

I find that the Complainant is owed 20 hours in holiday pay.

I find that there was an illegal deduction from the Complainant’s wages.

3) Sunday Premium

I note that the contract allegedly given to the Complainant was not available.

I note that the sample contract supplied by the Respondent was silent on a premium for Sunday working.

Therefore, I cannot accept that this was an all-inclusive salary that encompassed a premium for Sunday working.

I find that the Complainant should have received a premium for working Sundays.

I find that time and a quarter is a reasonable premium for this industry.

I find that the Complainant is owed a premium for the hours that he worked on Sundays in the allowable period of 9th November 2018 to 29th March 2019.

I find that there has been an illegal deduction from the Complainant’s wages.

4) Public Holidays

I note that the contract allegedly given to the Complainant was not available.

I note that the sample contract supplied by the Respondent shows that the salary incorporated payments for bank holidays.

I find that the Complainant has not established a contractual entitlement to separate payments for Public Holidays.

I find that there was no illegal deductions from the Complainant’s wages.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Complainant succeeds in part only.

I require the Respondent to pay the Complainant 20 hours pay in holiday pay, this is to be paid within six weeks of the date below.

I require the Respondent to pay the Complainant a premium of time and one quarter for the hours that he worked on Sundays in the allowable period of 9th November 2018 to 29th March 2019, this is to be paid within six weeks of the date below.

Dated:   20/09/19

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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