ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent | |
| Anonymised Parties | A Social Care Worker | A Residential Care Service for Young People |
Complaints:
| Act | Complaint/Dispute Reference No. | Date of Receipt |
| CA-00029002-001 | ||
| CA-00029002-002 | ||
| CA-00029002-003 | ||
| CA-00029002-004 | ||
| CA-00029002-005 | ||
| CA-00029002-006 | ||
| CA-00029002-007 | ||
| CA-00029002-008 | ||
| CA-00029002-009 | ||
| CA-00029002-010 | ||
| CA-00029002-011 | ||
| CA-00029002-012 | ||
| CA-00029002-013 | ||
| CA-00029002-014 | ||
| CA-00029002-015 | ||
| CA-00029002-016 | ||
| CA-00029002-017 | ||
| CA-00029002-018 | ||
| CA-00029002-019 | ||
| CA-00029002-020 | ||
| CA-00029002-021 | ||
| CA-00029002-022 | ||
| CA-00029002-023 | ||
| CA-00029002-024 | ||
| CA-00029002-025 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
These complaints were submitted to the WRC on June 7th 2019 and, in accordance with Section 41 of the Workplace Relations Act 2015, they were assigned to me by the Director General. An adjudication hearing was arranged for Friday, September 13th 2019. The complainant attended and represented himself. There was no one in attendance on behalf of the respondent, although I am satisfied that they were properly on notice of the hearing. I have reached the conclusions set out below based on the uncontested evidence of the complainant.
From documents available on the website of the Company’s Registration Office, I understand that, on August 20th 2019, one of the two directors of the respondent company petitioned the High Court to appoint a provisional liquidator. At a hearing in the High Court on September 11th, two days before this hearing in the WRC, finding that the company is insolvent, Mr Justice Humphrey made orders to wind it up and confirmed the appointment of a liquidator.
The complainant is a lay litigant and he submitted 25 separate complaints on a manual complaint form. At the hearing, it was apparent that some of his complaints were duplications and others were submitted under the wrong legislation. He agreed to withdraw the following 14 complaints.
| Complaint number | Legislation | Reason Complaint Was Withdrawn |
| CA-00029002-002 | Payment of Wages Act, section 6 | Duplication of complaint number CA-00029002-003. |
| CA-00029002-009 | European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, SI 36/2012 | The complainant is not an employee in the mobile road transport sector.Duplication of complaint number CA-00029002-008. |
| CA-00029002-011 | European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006, SI 507/2012 | The complainant is not an employee in the aviation sector.Duplication of complaint number CA-00029002-010. |
| CA-00029002-014 | Organisation of Working Time Act 1997, section 27 | This complaint is dealt with under CA-00029002-010. |
| CA-00029002-015 | Organisation of Working Time Act 1997, section 27 | This complaint is dealt with under CA-00029002-012. |
| CA-00029002-017 | European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, SI 36/2012 | The complainant is not an employee in the mobile road transport sector.Duplication of complaint number CA-00029002-016. |
| CA-00029002-018 | Organisation of Working Time Act, section 27 | The complainant of non-accrual of holidays during carer’s leave – not relevant to this complainant as he was not on carer’s leave. |
| CA-00029002-019 | Industrial Relations Act 1969, Section 45A | The complainant is not an employee in a sector governed by an Employment Regulation Order. |
| CA-00029002-020 | Industrial Relations Act 1969, Section 45A | The complainant is not an employee in a sector governed by an Employment Regulation Order. |
| CA-00029002-021 | Industrial Relations Act 1969, Section 45A | The complainant is not an employee in a sector governed by an Employment Regulation Order. |
| CA-00029002-022 | European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012, SI 36/2012 | The complainant is not an employee in the mobile road transport sector. |
| CA-00029002-023 | Industrial Relations (Amendment) Act 2015, Section 23 | The complainant is not an employee in a sector governed by a Sectoral Employment Order. |
| CA-00029002-024 | Employment Permits Act 2006, schedule 2 | This is a complaint of penalisation for exercising a right under the Employment Permits Act 2006; however, the complainant is not a holder of an employment permit and he never sought to exercise rights under the Employment Permits Act. |
| CA-00029002-025 | Protection of Employees (Temporary Agency Work) Act 2012, section 25 | The complainant is not a temporary agency worker. |
Background:
| The complainant is a social care worker and he joined the respondent company on February 20th 2017. He said that it was set up to provide one-to-one residential care to vulnerable young adults, assigned to it by Tusla, the Child and Family Agency. The respondent rented houses and provided round the clock care for the young people by rostering social care workers to live with them for 24-hour shifts. During his employment, the complainant said that the company had responsibility for eight young adults. The complainant said that he didn’t take any holidays in 2017 and by April 2018, he had been asking about holiday pay for about two months. He got no response and eventually, he sent an e-mail to the respondent’s managing director, “MD,” with a request to be paid for his 2017 holidays. He said that he told MD that he intended making a complaint to the WRC about his holidays. He said that other employees had similar concerns about various payments. On May 16th, MD invited all his employees to a meeting the next day at the company’s head office. The complainant wasn’t rostered for work and he replied saying he couldn’t attend at such short notice. On May 17th, he received an e-mail from a manager which he submitted in evidence. The e-mail states, “…due to none (sic) attendance at the staff meeting today to discuss the future of services … we were left with no option but to fill the roster for the rest of the month of May with new staff if you have any queries please contact myself during the week (sic).” The complainant said that when he received this e-mail, he already had his roster for the month of May and he never indicated that he wouldn’t be at work. On Friday, May 31st, he discovered that his access to his company e-mail account had been removed. He said that he was informed by a manager in the head office that MD didn’t want him on the roster anymore. Although he worked for the first two weeks of May, he said he got no wages for that month and, despite his efforts to contact MD, he got no response. These complaints were submitted to the WRC on June 7th 2019 but, up until the end of July, the complainant tried to contact MD. He said that he made over 100 phone calls and he sent 80 text messages and e-mails. At the hearing, the complainant produced copies of two text messages from MD in July 2019 in which MD said that he was in hospital and that he would contact the complainant as soon as he got out. However, the complainant got no response from MD or from any manager at the company. He was not rostered for work after May 17th 2018; however, his employment was not terminated and he was not issued with a P45. The Burden of Proof in Complaints under the Organisation of Working Time Act 1997 Of the 11 complaints considered below, two are under the Payment of Wages Act 1991 and nine are under the Organisation of Working Time Act 1997, (the “1997 Act”). The non-attendance of any person representing the respondent presents a difficulty in respect of proving the breaches that the complainant alleges occurred. Section 25(1) of the 1997 Act requires the respondent to maintain records in a prescribed form, that demonstrate that the complainant received his entitlements under the working time legislation. Such records can also be an argument for proving that wages have been paid for the hours worked. In the case of this complainant, I have no knowledge of whether records of his hours of work were maintained by the respondent, or if any such records were accurate. Section 25(4) of the 1997 Act deals with the failure of an employer to keep records: (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer. In the case at the Labour Court of Jakonis Antanas and Nolan Transport, DWT1117, the chairman, Mr Duffy considered the operation of this section: “The burden on a respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from s.27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commission shall give the parties the opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.“This suggests that the evidential burden is on the complainant, to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] AC 386, an evidential burden is satisfied where the evidence adduced is sufficient to ‘suggest a reasonable possibility.’” In the course of the hearing of these complaints, I found that the complainant provided evidence to the best of his knowledge and documentary evidence in the form of payslips, a roster, his contract of employment, a document calculating his annual leave and annual hours in 2018 and written communications between him and various managers. I am satisfied that the evidence he adduced is sufficient to suggest a reasonable possibility that certain contraventions of the 1997 Act occurred. In accordance with section 25(4) of the 1997 Act, the respondent bears the legal burden of proving that contraventions did not occur. On the balance of probabilities, in the absence of any evidence on the part of the respondent, and in the absence of any records of the hours worked by the complainant while he was employed by the respondent, as set out below, I find that the contraventions that he complained of did occur. Section 27(3) of the Organisation of Working Time Act 1997 - Redress Where there is a finding that there has been a contravention of an entitlement under any provision of the 1997 Act, section 27(3) sets out the redress available: (3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (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 of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment. The legislation is clear therefore, and the complainant is not limited to recovering the actual monetary value of the payments or entitlements that I have found were withheld. In reaching the decisions set out in this document, I have been mindful of my authority to award compensation that is just and equitable, subject to a limit of two years’ pay for any breach of a relevant provision of the Act. Weekly Wages The complainant’s payslip for the month ending July 31st 2019 shows that, in 2019, having been paid by the respondent from January 1st until April 30th 2019, a total of 17 weeks, he earned €16,758.80 gross. This indicates that his weekly earnings up to April 30th 2019 was €986. His payslip for January 2019 shows that he was paid €3,805, including €240 in respect of the public holiday on January 1st. From these two pieces of evidence, I estimate that the complainant’s weekly pay was approximately €900. |
CA-00029002-001: Breach of Section 14(1) of the Organisation of Working Time Act 1997 – Sunday Working
Summary of Complainant’s Case:
| For the duration of his employment with the respondent, when he worked on Sundays, the complainant said he received no Sunday allowance. While he has no access to his timesheets, from the date of his commencement in February 2017, the complainant said that he worked three Sundays every month. |
Findings and Conclusions:
| The complainant’s contract of employment states, “your rate of pay will be €15.00 per hour.” There is no reference to Sunday pay. Section 14(1) of the 1997 Act sets out the provisions for Sunday working: (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. Sub-section (3) of section 14 provides that, where there is no collective agreement in place in a company regarding a Sunday allowance, I must consider the rate that would be applied to a “comparable employee” in the sector in which the employee works. My understanding is that, in the health sector, for employees other than those employed on HSE contracts, an allowance of time and a half is generally paid for Sunday working. As the respondent did not attend the hearing, there was no evidence to show that when the complainant worked on Sundays, he was paid a Sunday allowance. I find therefore, that this complaint is well-founded. In accordance with section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to consider a complaint under this section if it has been presented to the WRC not later than six months from the date of the contravention, in this case, the non-payment of a Sunday allowance. I can therefore consider any breach of this section of the 1997 Act that occurred in the six months before the date that this complaint was submitted to the WRC. As the complaint was submitted on June 7th 2019, I can consider any breach from Sunday, December 9th 2018 until Friday, June 7th 2019. The complainant said that he worked two Sundays out of three. As he was eliminated from the roster on May 17th 2019, I estimate that, during this period of 26 weeks, he worked on 15 Sundays. |
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.
| During the relevant period, the complainant worked on 15 Sundays for 24 hours at a rate of €15 per hour. Having concluded that the appropriate Sunday allowance is time and a half, I decide that the respondent is to pay the complainant €3,000 in compensation. As an award of compensation, this payment is not subject to any deductions. |
CA-00029002-003: Breach of Section 5 of the Payment of Wages Act 1991 – Non-payment of Wages that are Properly Payable
Summary of Complainant’s Case:
| Shortfall in Wages Paid Compared to the Payslip The complainant said that he received his payslip generally on the last Friday of each month, and his wages were up to the last day of the month. While his payslip indicated the gross amount he was due and the amounts to be deduced for tax, PRSI and USC, the complainant said that the correct net amount was never transferred to his bank account and sometimes, 50% of the correct amount was transferred. When he questioned the MD about this, he said that the MD would respond that it was a mistake and that he forgot to pay him for certain shifts. MD told the complainant he would be paid the shortfall the following month. The next month, while he would be paid the shortfall, he would be left short again and this went on each month up until the last month that he was paid, in April 2018. Failure to Pay for the Work of Co-ordinator In October 2017, the complainant said that, in addition to his role as a social care worker, he agreed to take on the role of co-ordinator for the respondent. This involved compiling weekly and monthly reports on each of the clients in the respondent’s care and having these ready for inspection by Tusla. The complainant said that MD agreed to pay him an additional 40 hours’ pay per month for this work, equivalent to €600, based on his hourly rate of €15. The complainant said that he received the additional pay in October, November and December 2018. When he wasn’t paid the extra €600 in January, he sent a message to MD, but got no response. He called to the head office to ask MD about the non-payment and he was told that he wasn’t there. He said that a person in the head office told him that MD was no longer paying the co-ordinator’s allowance. He claims that, as he did the work of the co-ordinator in January, he is entitled to the additional pay that MD agreed to pay him for carrying out this work. Failure to Pay Wages after April 2019 The complainant worked his roster up to May 15th 2018, but he received no pay for the month of May. He was told to contact a named member of the management team about this, but when he contacted that person, he got no reply and he got no response to dozens of phone calls, text messages and e-mails between May and July 2019. In August, the complainant heard that the company was about to be placed in liquidation and that the clients would be moved to the care of an associated company. The complainant’s claim is that, as he was not dismissed, he is entitled to his wages up until the date of the closure of the company. |
Findings and Conclusions:
| Shortfall in Wages Paid Compared to the Payslip The complainant had no accurate records of how much he was left short in his wages over the course of his employment. He said that the shortfall in one month would be made up the next month, but in the next month, he wouldn’t be paid the correct amount. He said that he was constantly chasing MD to try to get paid the proper amount and this went on one month after another. I asked the complainant to analyse his payslips and to compare the net amounts with the amounts transferred by the respondent to his bank account each month. However, at the time of writing this decision, this information has not been received. Section 5(1) of the Payment of Wages Act 1991 provides that, An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it. It is apparent that, in respect of the transfer to his bank account of less than the amount the complainant was due in wages, none of the conditions at sub-sections (a), (b) or (c) have been met. For this reason, I find that, on an ongoing basis from mid-2017 until his wages were stopped in May 2019, the respondent made illegal deductions from the complainant’s wages. Failure to Pay for the Work of Co-ordinator Section 1 of the Payment of Wages Act 1991 sets provides sets out a definition of wages: “wages in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including - (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment, or otherwise, Subsection (b) relates to pay in lieu of notice and is not relevant here. Having heard the evidence of the complainant, and in the absence of any rebuttal, I find that, in respect of the month of January 2019, the complainant was left short in his wages of €600 which was the agreed amount he was to be paid for carrying out the role of co-ordinator for the respondent. Failure to Pay Wages after April 2019 In the absence of any evidence that he was paid the wages he was due for work done for the respondent in the first two weeks of May 2019, I find that, in that month, the complainant suffered an illegal deduction from his wages. The complainant was not dismissed; he was available for work and willing to work for the respondent. The company was placed in liquidation on September 11th 2019. In his evidence, the complainant said that the eight clients who were in the care of the respondent were transferred to an associated service-provider. If this is the case, a claim arises under the European Regulations (Protection of Employees on Transfer of Undertakings) Regulations 2003; however, no such claim was before me at this hearing. The complainant produced a payslip for the month of January 2019. This provides the following information about his wages for that month: 144 hours @ €15: €2,160 7 on calls @ €100: €700 9 sleepovers @ €78.40: €705.60 Bank holiday: €240 Total gross pay: €3,805.60 Net pay: €2,852.88 It is my view that, as the complainant was not dismissed and he did not resign, he is entitled to be paid his wages for the period from May 17th 2019 until September 11th 2019. Based on the details on his January 2019 payslip, I calculate that he is entitled to be paid €2,852.88 net in respect of each of the four months from May 17th until September 11th 2019. |
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 complaints made under the Payment of Wages Act 1991 in respect of non-payment of wages are well-founded. I decide that the respondent is to pay compensation in the following net amounts:Failure to pay the full amount of wages each month: €1,500Failure to pay the allowance for the work of co-ordinator: €600Failure to pay wages from May to September 2019: €11,400Total award of compensation under the Payment of Wages Act: €13,500 net. |
CA-00029002-004: Complaint under the Payment of Wages Act 1991 – Breach of Section 7 of the Minimum Notice and Terms of Employment Act 1973 - Non-payment of Pay in Lieu of Notice
Summary of Complainant’s Case:
| Under this heading, the complainant said that he never received notice that his employment was terminated. In August 2019, he discovered through newspaper reports, that the directors claimed that the company was insolvent and they requested the High Court to appoint a liquidator. |
Findings and Conclusions:
| The complainant was employed by the respondent from February 2017 until September 2019. He has completed two years of service and, in accordance with the Minimum Notice and Terms of Employment Act 1973, he is entitled to two weeks’ notice of the termination of his employment. |
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.
| Having concluded that he is entitled to two weeks’ pay in lieu of notice of the termination of his employment, I decide that the respondent is to pay the complainant €1,800 gross. The complainant’s contract of employment provides that his employer reserves the right to pay him in lieu of notice, and, for this reason, this payment is subject to normal deductions. |
CA-00029002-005: Breach of Section 11 of the Organisation of Working Time Act 1997 – Daily Rest Breaks
Summary of Complainant’s Case:
| As he was required to work consecutive 24-hours shifts, the complainant said that he did not get his daily rest breaks. He said that he was regularly called in to work extra shifts at short notice, and often, when he was due to finish work, he was not relieved of his charge, with the result that he worked extra shifts with no notice. He complains that this was a breach of section 11 of the 1997 Act, which provides that “an employee shall be entitled to a rest break of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.” |
Findings and Conclusions:
| As the employer did not attend to rebut the complainant’s evidence regarding contraventions of section 11 of the 1997 Act, I find that the complainant’s roster was such that breaches occurred when he was not able to take adequate breaks between 24-hour shifts. Like the first complaint above, CA-00029002-001, in accordance with section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to consider any breach of section 11 of the 1997 Act not later than six months from the date of the contravention, up to the date the complaint was submitted to the WRC. I can therefore consider any breaches that occurred from Saturday December 8th 2018 until Friday, June 7th 2019. As he was eliminated from the roster on May 17th 2019, the complainant worked for 23 of the 26 weeks before he submitted this complaint. Based on his evidence at the hearing, when he was not able to take a break between his shifts, I find that a breach of section 11 of the 1997 Act occurred at least once every week. |
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 have concluded that the respondent failed to ensure that, at all times, the complainant got a break of 11 hours between shifts. I decide therefore, that the respondent is to pay the complainant compensation of €5,000, equivalent to approximately five weeks’ pay. As compensation, this award is not subject to any deductions. |
CA-00029002-006: Breach of Section 12 of the Organisation of Working Time Act 1997 – Breaks at Work
Summary of Complainant’s Case:
| Under the heading, “Rest Breaks,” the complainant’s contract provides as follows: You will be provided with a 60 minute unpaid break during your working day.Under working time legislation, all employees working in excess of 4.5 hours must take a minimum of a 15 minute break, and employees working in excess of six hours must take a minimum of a 30 minute break. If you fail to receive these breaks, you must notify your manager within 1 week.The complainant said that he was rostered to care for the respondent’s clients on 24-hour shifts. While he was at work, in breach of section 12 the 1997 Act, he said that he got no breaks. |
Findings and Conclusions:
| Section 12 of the 1997 Act is not accurately interpreted in the complainant’s contract of employment. This section sets out the entitlement to breaks based on a minimum of 4.5 hours and six hours, and not “in excess of” these amounts. (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 complainant was issued with a roster and did not set his own hours of work and he was not in any respect in control of his hours of work. It is my view that complainant cannot be exempted, in accordance with section 4 the 1997 Act, from the provisions of any aspect of Part II of the Act. This is because he was not informed that he was so exempted and he was given a roster of hours and therefore, not in a position to determine his own hours of work. At the hearing, the complainant said that he was regularly called in to work extra shifts at short notice, and often, when he was due to finish work, he was not relieved of his charge, with the result that he worked extra shifts with no notice. I estimate therefore that, for the 23 weeks in question, at a minimum, the complainant worked an average of three 24-hour shifts each week. For most of his shifts, the complainant could sleep overnight and I therefore find that he had no opportunity to take a rest break during a period of 16 hours in each of three 24-hour shifts over a period of 23 weeks. It is my view that the complainant’s roster should have been arranged to facilitate proper breaks and I find that a breach of section 12 of the 1997 Act has occurred as a result of this failing. In an appeal of a decision of the adjudicator in the case of Ruth Murphy and Medfit Wellness Limited, DWT 1717, the Labour Court considered a similar breach of section 12 of the 1997 Act. Finding in her favour, the Labour Court awarded Ms Murphy compensation of €3,250, equivalent to approximately six weeks’ pay. |
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.
| As I have concluded that the respondent was in breach of section 12(1) and 12(2) of the 1997 Act, I decide that the respondent is to pay the complainant compensation of €6,000, equivalent to approximately six weeks’ pay. As compensation, this award is not subject to any deductions. |
CA-00029002-007: Breach of Section 13 of the Organisation of Working Time Act 1997 – Weekly Rest Breaks
Summary of Complainant’s Case:
| This is a complaint that, in contravention of section 13 of the 1997 Act, the complainant did not always get his entitlement to a break of 24 hours in each period of seven days that he worked for the respondent. He said that this occurred when he was required to work more than his rostered number of shifts. The complainant said that he regularly worked four consecutive 24-hour shifts. He said that this occurred when the person who was rostered to take over a shift from him didn’t turn up and he couldn’t leave the client on his own. On one occasion, the complainant said that he worked for eight consecutive 24-hour shifts. |
Findings and Conclusions:
| No evidence has been presented to show that the complainant got his weekly breaks, as required by section 12 of the 1997 Act. His evidence is that, on some occasions, it was not possible for him to finish work at the time stipulated on his roster, because there was no one to replace him. He said that, on one occasion, this resulted in him working for eight consecutive days and nights. It is my view that there is substance to the complainant’s evidence in this respect. |
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.
| As I have concluded that there is substance to this complaint of a breach of section 13 of the 1997 Act, I decide that the respondent is to pay the complainant compensation of €1,000, equivalent to approximately one week’s pay. As compensation, this award is not subject to any deductions. |
CA-00029002-008: Breach of Section 15 of the Organisation of Working Time Act 1997 – Excessive Working Hours
Summary of Complainant’s Case:
| This is a complaint that, in contravention of section 15 of the 1997 Act, when he was employed by the respondent, the complainant regularly worked more than 48 hours each week. |
Findings and Conclusions:
| In my analysis of the complainant’s claim under complaint CA-00029002-006 above, I estimated that he worked an average of three 24 hour shifts each week, a total of 72 hours per week. While I accept that some of these hours were identified as “sleep over” hours, the complainant was at all time at work and responsible for the young person assigned to his care.Section 15(1) of the 1997 Act sets out the provisions in relation to weekly working hours:(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed - (a) 4 months, or (b) 6 months - (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection. Subsection (5) is not relevant to this complainant, because the complainant’s employment was not governed by a collective agreement. It is clear therefore, that, in respect of this complainant, subsection (1) above provides that, over a reference period of four months, he is not permitted to work more than an average of 48 hours each week. The complainant said that he took no holidays while he was employed by the respondent and that he regularly worked more than two 24 hours shifts consecutively. He had a copy of his roster for November 2018 at the hearing, and this shows that, between November 1st and 28th, he worked an average of exactly 48 hours. The complainant said that the roster did not accurately reflect the hours that he worked because he was called in at short notice and he couldn’t always leave at the end of his shifts. This “short-notice” work was not reflected on the roster. The complainant produced another document that was drawn up by his employer in respect of the calculation of his annual leave entitlement. This shows that, between January 1st and December 31st 2018, he worked a total of 2,331 hours, equivalent to an average of 44.8 hours each week, if the complainant worked 52 weeks of the year. I am not satisfied that this document is an accurate reflection of the hours worked by the complainant in 2018 and it is my view that he probably worked I excess of these hours. As no records were available at the hearing to challenge the complainant’s evidence, I find that, based on his evidence, there is a reasonable possibility that, during the cognisable period, he worked in excess of an average of 48 hours each week. I note the decision of the Labour Court in the appeal of ERAC Limited and Eddie Murphy, DWT 1583. Finding that Mr Murphy’s complaint that he worked excessive hours was well-founded, the Court awarded him compensation of €8,000. It is my view that I should follow the authority of the Court in respect of the complaint under consideration here. |
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.
| As I have concluded that the complainant has made out a substantial case that he worked in excess of 48 hours each week, I decide that the respondent is to pay him compensation of €8,000. As compensation, this award is not subject to any deductions. |
CA-00029002-010: Breach of Section 19 of the Organisation of Working Time Act 1997 – Annual Leave
Summary of Complainant’s Case:
| While he was employed by the respondent, the complainant took no annual leave and he was not paid in lieu of leave not taken. He produced a document in evidence that was compiled by his employer, setting out his annual leave entitlement for 2018. This schedule shows that his annual leave was calculated on the basis of 8% of the hours he worked, and he was considered to work irregular hours. As previously mentioned, the document shows that he worked 2,331 hours in 2018. |
Findings and Conclusions:
| Section 19 of the 1997 Act provides that, where an employee works 1,365 hours in a leave year, he or she is entitled to four weeks’ holidays.The complainant said that he took no holidays when he was employed by the respondent. The evidence he submitted that was compiled by the respondent, shows that, by December 2018, he had taken no holidays in that year.The complainant provided copies of e-mails and text messages that he sent to the respondent’s managing director asking to be paid in lieu of the holidays he did not get in 2017.I estimate that, in 2017, the complainant worked more than 1,365 hours for the respondent and he was therefore entitled to four weeks’ holidays in respect of that year. Based on all the evidence, I find that the complainant was not given his entitlement to annual leave for the duration of his employment with the respondent. I estimate that the total number of days not taken as holidays is 54. I have reached this conclusion based on the following entitlement:2017: 20 days2018: 20 days2019: 14 days, up to September 11th 2019 In accordance with section 41(6) of the Workplace Relations Act, in respect of a complaint under the 1997 Act, I must consider breaches that occur in the cognisable period that runs from December 8th 2018 until this complaint was submitted to the WRC on June 7th 2019. However, to consider a claim for unpaid holidays, I must examine the issue in the context of the relevant leave year. Section 2(1) of the 1997 Act defines the “leave year” as “a year beginning on any 1st day of April.” The six-month cognisable period straddles two leave years: Leave year 1: April 1st 2018 – March 31st 2019 Leave year 2: April 1st 2019 – March 31st 2020 Any contravention of the 1997 Act arising from the respondent’s failure to pay the complainant in respect of outstanding annual leave relates to holidays that accrued in the period from December 17th 2018 up to June 7th 2019. On December 31st 2018, within the cognisable period, the complainant had accrued 20 days holidays which he had not taken. By June 7th 2019, he had accrued a further nine days’ holidays. I find therefore, that the complainant is entitled to compensation in respect of 29 days’ holidays that he did not take in 2018 and 2019. |
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.
| In respect of this breach of section 19 and 23 of the 1997 Act, I decide that the respondent is to pay the complainant compensation of €5,000. As compensation, this award is not subject to any deductions. |
CA-00029002-012: Breach of Section 20 of the Organisation of Working Time Act 1997 – Public Holidays
Summary of Complainant’s Case:
| This is a complaint regarding a breach of section 21 of the 1997 Act which concerns pay for public holidays. The complainant worked 24-hour shifts starting at 10.00am. He claims that, when a public holiday fell at midnight after his 10.00am start, he was entitled to double time for the 10 hours from midnight until he finished his shift at 10.00am the following day. |
Findings and Conclusions:
| The complainant’s contract of employment states,“Your entitlement to Public Holidays is in line with the Organisation of Working Time Act and is set out in the employee handbook.” The complainant did not have a copy of the employee handbook; however, Section 21 of the 1997 Act is clear with regard to the entitlement to an extra day’s pay or an extra day off for employees who are required to work on a public holiday: (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: Subsection (2) of this section requires an employer to notify and employee about which method of calculation is to be used to give them the benefit of a public holiday. Subsection (3) provides that, where this not done, an employee is entitled to an extra day’s pay. As the complainant worked from midnight to 10.00am as part of his shift and, as he worked on public holidays, he was entitled to double time for these hours. The complainant was unable to produce evidence of the number of occasions that he worked from midnight to 10.00am on public holidays. He claimed that he worked on two Sundays out of three and a five out of the nine statutory public holidays fall on Mondays, when he would have been still at work. As the respondent did not attend the hearing to rebut the complainant’s evidence, I must reach a finding on this complaint based on an estimate grounded on the complainant’s evidence. This complaint was submitted on June 7th 2019 and the complainant worked for the respondent until May 15th. I can consider a breach of the legislation that occurred in the six months prior to June 7th 2019, and during that six months, the complainant was at work for 23 weeks. Six public holidays fell during this 23-week period. I therefore estimate that, on three occasions, the complainant is likely to have been at work from midnight until 10.00am on the day of the public holiday. From this, I conclude that he is at a loss of pay for 30 hours at his basic rate of €15 per hour. |
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.
| In respect of this breach of section 21 and 23 of the 1997 Act, I decide that the respondent is to pay the complainant compensation of €450. As compensation, this award is not subject to any deductions. |
CA-00029002-013: Breach of Section 17(2) of the Organisation of Working Time Act 1997 – Notice of the Requirement to Work Additional Hours
Summary of Complainant’s Case:
| The complainant said that he did not receive notice when he was required to work additional shifts. At the hearing, he said that he regularly had to stay at work after working for 24 hours because there was no one available to cover for him. He said that, because of the unavailability of staff, he frequently worked two and three consecutive 24-hour shifts. On one occasion, he said that he worked eight 24-hour shifts in a row. |
Findings and Conclusions:
| Section 17 of the 1997 Act is concerned with the provision of information in relation to working time. Subsection (2) of this section provides as follows: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. It is clear that the legislation requires an employer to notify an employee at least 24 hours in advance of the first day on which he or she is required to work additional hours. While there is a provision at subsection (4) of section 17, for an employer, in circumstances “which could not reasonably have been foreseen,” to require an employer to work additional hours, the respondent did not attend the hearing to contradict the complainant’s evidence that he regularly worked back to back 24-hour shifts. |
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 have concluded that, in respect of this complainant’s requirement to work additional hours, the respondent was in breach of his obligations at section 17(2) of the 1997 Act. I decide therefore, that the respondent is to pay the complainant compensation of €1,000. As compensation, this award is not subject to any deductions. |
CA-00029002-016: Breach of Section 16(2) of the Organisation of Working Time Act 1997: Night Work
Summary of Complainant’s Case:
| The complainant said that he was required to work excessive night time hours. He said that there was an insufficient number of staff available to provide care for the clients that the respondent was contracted to care for. He alleged that he was made to feel guilty if he suggested that he wouldn’t work additional hours. He said that clients were upset and terrified at the prospect of being left on their own an that he felt he had no option regarding the need to remain at work. |
Findings and Conclusions:
| Section 16 of the 1997 Act is concerned with nightly working hours. Subsection (1) provides definitions of “night time,” “night work” and “night worker.” (1) In this section - “night time” means the period between midnight and 7 a.m. on the following day; “night work” means work carried out during night time; “night worker” means an employee -(a) who normally works at least 3 hours of his or her daily working time during night time, and(b) the number of hours worked by whom during night time, in each year, equals or exceeds 50 per cent. of the total number of hours worked by him or her during that year. Based on the complainant’s evidence, I accept that a significant portion of his work was done at night time, as defined by the subsection above. However, I cannot determine, and I find that it is unlikely, that 50% of the hours that he worked during the year were carried out between midnight and 7.00am. I have reached this conclusion because the complainant said that he worked 24-hour shifts, so the greater portion of his working time must have been between the hours of 7.00am and midnight, a span of 17 hours. The ratio of night work to day work therefore is 7:17 hours. |
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.
| As the complainant is not a “night worker,” as defined by section 16(1) of the 1997 Act, I decide that his complaint under this heading is not upheld. |
Summary of Awards:
For the avoidance of doubt, I have summarised below the awards made under each complaint heading.
CA-00029002-001: €3,000 Breach of section 14(11) of the 1997 ActCA-00029002-003: €13,500 Breach of section 5 of the Payment of Wages Act 1991CA-00029002-004: €1,800 Breach of Section 5 of the Payment of Wages Act 1991CA-00029002-005: €5,000 Breach of section 11 of the 1997 ActCA-00029002-006: €6,000 Breach of section 12 of the 1997 ActCA-00029002-007: €1,000 Breach of section 13 of the 1997 ActCA-00029002-008: €8,000 Breach of section 15 of the 1997 ActCA-00029002-0010: €5,000 Breach of section 19 of the 1997 ActCA-00029002-0012: €450 Breach of section 20 of the 1997 ActCA-00029002-0013: €1,000 Breach of section 17(2) of the 1997 ActTotal Award: €44,750 |
Dated: September 23rd 2019
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
| Sunday working, non-payment of wages, non-payment of notice, daily rest breaks, breaks at work, weekly rest breaks, excessive working hours, annual leave, public holidays, notice of requirement to work additional hours, night work |