ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00025318

Parties:

	Complainant	Respondent
Anonymised Parties	A Boning Operative	A Meat Factory

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00032156-002	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00032156-003	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00032156-005	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012	CA-00032156-006	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00032156-007	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00032156-008	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00032156-009	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00032156-011	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00032156-012	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00032156-013	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00032156-014	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00032156-015	12/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00032156-016	12/11/2019

Date of Adjudication Hearing: 28/01/2020

Workplace Relations Commission Adjudication Officer: Enda Murphy

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.

The Complainant confirmed at the oral hearing that the following complaints were withdrawn, namely: CA-00032156-006, CA-00032156-011, CA-00032156-012, CA-00032156-015 and CA-00032156-016.

The Respondent confirmed at the oral hearing that the legal entity which employed the Complainant was an unlimited company. The Respondent consented to the application by the Complainant to amend the name of the employer to reflect same.

Background:

The Complainant commenced employment with the Respondent as a Boning Operative in September, 2013. The Complainant is still employed by the Respondent.

The Complainant claims that the Respondent has made unlawful deductions from his wages contrary to Section 5 of the Payment of Wages Act, 1991 in relation to unpaid public holidays and annual leave entitlements.

The Complainant claims that the Respondent has contravened the following provisions of the Organisation of Working Time Act 1997 in relation to his employment, namely Section 17 in relation to the provision of information in relation to working time; Section 19 in relation to annual leave entitlements and Section 21 in relation to public holiday entitlements. The Complainant also claims that the Respondent has contravened the provisions of Sections 3 and 5 of the Terms of Employment (Information) Act, 1994 in relation to his employment.

The Respondent disputes all of the above claims.

Summary of Complainant’s Case:

CA-00032156-002 – Complaint under the Payment of Wages Act, 1991

The Complainant claims that the Respondent failed to pay him in respect of his entitlements for the public holidays that fell in August, 2019 and October, 2019. The Complainant claims that the Respondent’s failure to pay him his public holiday entitlements constitutes an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991.

CA-00032156-003 – Complaint under the Payment of Wages Act, 1991

The Complainant claims that the Respondent has failed to pay him in respect of 9 days outstanding annual leave which he had accrued during the calendar year 2019. The Complainant claims that the Respondent’s failure to pay him in respect of his outstanding annual leave entitlements constitutes an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991.

CA-00032156-005 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent has contravened the provisions of Section 19 of the Organisation of Working Time Act 1997 in respect of his annual leave entitlements. The Complainant claims that his annual leave entitlement has been reduced from 20 days to 16 days per annum. The Complainant claims that he is entitled to 9 days annual leave in respect of the calendar year 2019 which he has not taken or received payment in lieu thereof.

CA-00032156-007 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent has contravened the provisions of Section 21 of the Organisation of Working Time Act, 1997 in relation to his public holiday entitlements. The Complainant claims that he was not paid for two public holidays that fell during the cognisable period of this complaint, namely the public holidays in August, 2019 and October, 2019.

CA-00032156-008 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent has contravened the provisions of Section 17(1) of the Organisation of Working Time Act, 1997 in relation to the provision of information relating to his finishing time. The Complainant stated that he was required to work eight hours per day and that there was an established starting time of 7 am on weekdays and 6:30 am on a Friday. The Complainant stated that he could never tell what time he would finish his shift and that he was on several occasions required to work shifts of 9/10 hours if the Respondent was busy. The Complainant stated that he did not receive 24 hours’ notice of his finish times as required by the legislation.

CA-00032156-009 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent has contravened the provisions of Section 17 of the Organisation of Working Time Act, 1997 in relation to the provision of information relating to working additional hours. The Complainant submits that he was required to work 8 hours per day but on occasions his shift would be extended to 9/10 hours per day if the Respondent was busy. The Complainant stated that he did not receive 24 hours’ notice of any additional hours he was required to work when called upon to do so.

CA-00032156-013 – Complaint under the Terms of Employment (Information) Act, 1994

The Complainant claims that the Respondent has contravened the provisions of Section 3 of the Terms of Employment (Information) Act, 1994 in relation to his employment. The Complainant stated that he did not receive a written statement of his terms and conditions of employment after he commenced employment in 2013. The Complainant stated that he received a written contract in 2017 and a revised contract in 2019 but he refused to sign either of these documents as he did not agree with certain terms that were contained therein.

CA-00032156-014 – Complaint under the Terms of Employment (Information) Act, 1994

The Complainant stated that he was initially required to work 36 hours per week, but his weekly working hours were subsequently reduced to 32 hour per week. The Complainant stated that the Respondent also reduced his annual leave entitlement from 20 days to 16 days for the annual leave in 2019 following the reduction in his weekly working hours. The Complainant contends that these changes to his terms of employment was not notified to him in writing.

The Complainant claims that the Respondent has contravened the provisions of Section 5 of the Terms of Employment (Information) Act 1994 by failing to notify him in writing of these changes to his terms and conditions of employment.

Summary of Respondent’s Case:

CA-00032156-002 – Complaint under the Payment of Wages Act, 1991

The Respondent disputes the Complainant’s claim that it made an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to unpaid public holiday entitlements. The Respondent submits that the Complainant was paid his entitlements in respect of the public holidays that fell in August, 2019 and October, 2019.

CA-00032156-003 – Complaint under the Payment of Wages Act, 1991

The Respondent disputes the Complainant’s claim that it made an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991 in relation to unpaid annual leave entitlements. The Respondent contends that the Complainant works 32 hours per week (four days) and therefore has a statutory entitlement to 16 days annual leave. The Respondent submits that the Complainant carried 4 days annual leave into the 2019 leave year which gave an entitlement to 20 days annual leave for that year. The Respondent submits that the Complainant was paid in respect of 17 days annual leave in 2019 and that by agrement he was allowed carry forward 3 days annual leave into the 2020 leave year.

CA-00032156-005 – Complaint under the Organisation of Working Time Act, 1997

The Respondent disputes the claim that it has contravened the provisions of Section 19 of the Organisation of Working Time Act, 1997 in relation to the Complainant’s annual leave entitlements. The Respondent submits that the company operates an annual leave year from January to December. The Respondent contends that the Complainant works 32 hours per week (four days) and therefore has a statutory entitlement to 16 days annual leave. The Respondent submits that the Complainant carried 4 days annual leave into the 2019 leave year which gave an entitlement to 20 days annual leave for that year. The Respondent submits that the Complainant was paid in respect of 17 days annual leave in 2019 and that he was allowed by agreement to carry forward 3 days annual leave into the 2020 leave year.

CA-00032156-007 – Complaint under the Organisation of Working Time Act, 1997

The Respondent disputes the claim that it has contravened the provisions of Section 21 of the Organisation of Working Time Act, 1997 in relation to the Complainant’s public holiday entitlements. The Respondent submits that the Complainant was paid his entitlements in respect of the public holidays that fell in August, 2019 and October, 2019.

CA-00032156-008 – Complaint under the Organisation of Working Time Act, 1997

The Respondent disputes the claim that it has contravened the provisions of Section 17(1) of the Organisation of Working Time Act, 1997 in relation to the provision of information to the Complainant relating to his finishing time. The Respondent submits that the Complainant was provided with a written contract in 2017 which provided details of his starting/finishing times, namely 6:30 am to 7:30 pm. The Respondent submits that the Complainant requested a reduction in his weekly working hours from 36 hours to 32 hours (over four days) during 2019. The Respondent submits that this request was granted, and the Complainant was issued with a revised contract without any reduction in pay. The Respondent submits that the Complainant is required to work 8 hours per day and that he is paid a daily rate of €160. The Respondent submits that given the nature of the business and the vagaries of the work the Complainant may on certain occasions be required to work beyond his normal finishing. The Respondent submits that a roster is displayed in the workplace on Thursdays to confirm the finishing times for the following week.

CA-00032156-009 – Complaint under the Organisation of Working Time Act, 1997

The Respondent disputes the claim that it has contravened the provisions of Section 17(2) of the Organisation of Working Time Act, 1997 in relation to the provision of information to the Complainant relating to the requirement to work overtime.

The Respondent submits that the Complainant is required to work 32 hours per week (over four eight-hour daily shifts). The Respondent submits that the nature of the business and the vagaries of the work requires the Complainant on occasion to work in excess of 8 hours per day and on other occasions less than 8 hours per day. The Respondent submits that there was only one week during 2019 when the Complainant was required to work in excess of his contractual hours of 32 hours per week and on that occasion, he worked 33 hours. The Respondent submits that the Complainant is paid a daily rate of €160 per day (i.e. €20 per hour) including on occasions where he finishes work early.

CA-00032156-013 – Complaint under the Terms of Employment (Information) Act, 1994

The Respondent disputes the claim that it has contravened the provisions of Section 3 of the Terms of Employment (Information) Act, 1994 in relation to the Complainant’s employment. The Respondent submits that the Complainant was provided with a written contract of employment following the commencement of his employment in 2013. The Respondent submits that the Complainant was also provided with revised written contracts in 2017 and 2019 but refused to sign either of these documents.

CA-00032156-014 – Complaint under the Terms of Employment (Information) Act, 1994

The Respondent disputes the claim that it has contravened the provisions of Section 5 of the Terms of Employment (Information) Act 1994 by failing to notify the Complainant in writing of this change to his terms and conditions of employment.

The Respondent submits that the Complainant was initially required to work 36 hours per week but subsequently requested a reduction in his weekly working hours to 32 hours over four days. The Respondent stated that it acceded to the Complainant’s request for a reduction of his weekly hours from 36 hours to 32 hours over for days. The Respondent stated that the Complainant’s annual leave entitlement was also reduced pro-rata from 20 days to 16 days to reflect the reduction in his weekly working hours and the fact that he was only working four days per week. The Respondent stated that the Complainant was provided with a revised written contract of employment in 2019 to reflect the changes to his weekly working hours and annual leave entitlements but refused to sign the document.

Findings and Conclusions:

CA-00032156-002 – Complaint under the Payment of Wages Act, 1991

The Complainant referred the instant complaints to the Workplace Relations Commission on 12 November, 2019. By application of the time limits provided for in Section 41(6) of the Workplace Relations Act 2015, the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was referred to the WRC i.e. from 13 May, 2019 to 12 November, 2019. I am satisfied that the alleged unlawful deductions which the Complainant claims were made from his wages on the termination of his employment fall within the cognisable period covered by the claim.

The Complainant claims that the Respondent’s failure to pay him his entitlements in respect of the public holidays that fell in August, 2019 and October, 2019 constitutes an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act 1991. The Respondent adduced both oral and documentary evidence in support of its contention that the Complainant was paid his entitlements in respect of both of these public holidays.

Having regard to the totality of the evidence adduced, I am satisfied that the Complainant was paid his entitlements in respect of these pubic holidays. In the circumstances, I find that the unpaid wages which the Complainant is claiming in respect of these public holidays were not properly payable to him within the meaning of Section 5(6) of the Act. Therefore, the question of compliance with subsections (1) and (2) of Section 5 of the Act do not arise for consideration. Accordingly, I find that the complaint is not well founded.

CA-00032156-003 – Complaint under the Payment of Wages Act, 1991

The Complainant claims that the Respondent has failed to pay him in respect of 9 days outstanding annual leave which he had accrued during the calendar year 2019. The Complainant claims that the Respondent made an unlawful deduction from his wages contrary to Section 5 of the Payment of Wages Act, 1991 by failing to pay him in respect of his outstanding annual leave entitlements for the calendar year 2019.

The Respondent adduced both oral and documentary evidence in support of its contention that the Complainant was paid his full entitlements in respect of annual leave entitlements during the calendar year 2019. Having regard to the totality of the evidence adduced, I am satisfied that the Complainant was paid his entitlements in respect of his annual leave entitlements during the material period in question. In the circumstances, I find that the unpaid wages which the Complainant is claiming in respect of annual leave entitlements were not properly payable to him within the meaning of Section 5(6) of the Act. Therefore, the question of compliance with subsections (1) and (2) of Section 5 of the Act do not arise for consideration. Accordingly, I find that the complaint is not well founded.

CA-00032156-005 – Complaint under the Organisation of Working Time Act, 1997

The Complainant has claimed that the Respondent has contravened the provisions of Section 19 of the Organisation of Working Time Act, 1997 in relation to his annual leave entitlements. The Complainant claims that the Respondent has reduced his annual leave entitlement from 20 days to 16 days and that he did not receive his full statutory entitlement during the calendar year 2019.

The Respondent does not dispute that the Complainant’s annual leave entitlement has been reduced from 20 days to 16 days. The Respondent contends that the Complainant’s weekly working hours were reduced from 36 hours to 32 hours per week (over four days) on his request and that the Complainant’s correct statutory annual leave entitlement is 16 days per annum.

The cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was referred to the WRC i.e. from 13 May, 2019 to 12 November, 2019. Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. The six-month period referenced in the complaint encompasses the leave year 2019/2020, which began on 1 April 2019.

By application of the provisions of Sections 19(1)(a) and (5) of the Act, I am satisfied that the Complainant has an annual leave entitlement to 16 days annual leave per annum. The Respondent provided extensive and detailed evidence in respect of the annual leave taken by the Complainant and payments made to him during the cognisable period. Having regard to the evidence adduced, I find that the Complainant was afforded his full statutory entitlement to annual leave during the cognisable period. Accordingly, I find that the Respondent did not contravene the provisions of Section 19 of the Act and that the complaint is not well founded.

CA-00032156-007 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that he was not paid for two public holidays that occurred during the cognisable period of this complaint, namely the public holidays in August, 2019 and October, 2019. Having regard to the totality of the evidence adduced, I find that the Complainant was paid his statutory entitlements in accordance with the provisions of Section 21 of the Act in respect of these pubic holidays. Accordingly, I find that the Respondent has not contravened Section 21 of the Act and that the complaint is not well founded.

CA-00032156-008 – Complaint under the Organisation of Working Time Act, 1997

The Complainant contends that he was not always notified of the requirement to stay beyond his scheduled finishing time and he claims that the Respondent has contravened the provisions of Section 17 of the Act.

Section 17 of the Act provides:

“(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.”

The Complainant contends that he was frequently required to work 9/10 hour shifts within without any prior notification of his finishing time. The Respondent submits that the Complainant was required to work an 8-hour shift in accordance with his contract of employment but accepts that there were occasions given the nature of the business upon which he may have been required to work longer than 8 hours.

In considering this issue, I note that Complainant’s contract of employment provided details of his normal working hours (namely 6:30 am to 7:30 pm) and stated that he would be required to be flexible in his working schedule and actual hours worked. Having regard to the evidence adduced, I am satisfied that any occasion which the Complainant was required to work beyond his normal finishing time was contemplated within the terms of his contract of employment. It is clear that the parties had a mutual arrangement in place whereby the Complainant was also allowed to finish work early without having completed an 8-hour shift with no reduction in pay on occasions where the daily workload had been completed. In the circumstances, I find that the Respondent has not contravened the provisions of Section 17(1) of the Act. Accordingly, I find that the complaint in not well founded.

CA-00032156-009 – Complaint under the Organisation of Working Time Act, 1997

The Complainant contends that the Respondent has contravened the provisions of Section 17(2) of the Act in relation to the provision of information relating to working additional hours. The Complainant submits that he was required to work 8 hours per day but on occasions his shift would be extended to 9/10 hours per day and that he did not receive 24 hours’ notice of any additional hours that he was required to work when called upon to do so.

The Respondent adduced records of the Complainant’s weekly working hours which confirm that there was only one week during the cognisable period relating to this complaint whereby he worked in excess of his required hours of 32 per week. I note from the records adduced that there were also numerous weeks during this period whereby the Complainant worked less than the required 32 hours per week with no reduction in his weekly pay (namely €160 per day). I am satisfied that the parties had a mutually beneficial arrangement in place which facilitated the operational requirements of the business.

Having regard to the evidence adduced, it would appear, therefore, that the Complainant willingly acquiesced in the Respondent’s non-compliance with section 17(2) of the Act on the only relevant occasion applicable during the cognisable period. Therefore, I find that no compensation is payable, in all the circumstances, for the contravention of that subsection that by the parties’ admission occurred.

CA-00032156-013 – Complaint under the Terms of Employment (Information) Act, 1994

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars …… “.

It was not in dispute that the Complainant commenced employment with the Respondent on 13 September, 2013. Therefore, in accordance with its obligations under Section 3 of the Acts, the Respondent was obliged to provide the Complainant with a written statement of his terms and conditions of employment no later than two months from that date (i.e. by 14 November, 2013).

The Respondent adduced evidence that the Complainant was provided with a written contract of employment following the commencement of his employment in September, 2013 and that he was also provided with updated written contracts on 28 August, 2017 and December, 2019. The Respondent provided copies by way of evidence of the latter two contracts which it contends were issued to the Complainant. The Complainant disputes that he received the written contract in 2013 but accepts that he received the latter two updated contracts albeit that he refused to sign either of these documents.

Section 3(1) of the Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship. Where this is not provided, the employee has recourse to the Workplace Relations Commission where Section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress. The multiplicity of interventions allowed by Section 7(2) shows that the contravention of Section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement.

Having regard to the evidence adduced, I am satisfied that the Complainant has been issued with a written statement of his terms of employment by the Respondent during his period of employment. However, there was a dispute between the parties as to the date upon which the initial written contract was actually issued i.e. whether this occurred following the commencement of the Complainant’s employment in September, 2013 or 28 August, 2017.

On balance, and in the absence of any documentary evidence from the Respondent to establish that the Complainant was provided with the initial written contract in September, 2013, I find that it is reasonable to conclude that the written contract was not provided to the Complainant until 28 August, 2017. Therefore, it is clear that the Respondent contravened the requirement under Section 3 to provide the written statement within two months of the date upon which the Complainant commenced employment. However, I take the view that the subsisting contravention only endured so long after the initial two-month period that the Complainant remained not in possession of a written statement. Therefore, I find that the latest date upon which any subsisting contravention of Section 3 of the Act could have occurred was on 28 August, 2017. In applying the relevant time limits provided for in Section 41(6) of the Workplace Relations Act, 2015 the Complainant would have been required to refer a complaint within six months of the last day of contravention i.e. 28 August, 2017 (or within twelve months on extension of the time limit for reasonable cause). The instant complaint has clearly been referred outside of the applicable twelve-month period. Accordingly, I find that the that the complaint under Section 3 of the Act is not well founded.

CA-00032156-014 – Complaint under the Terms of Employment (Information) Act, 1994

Section 5 of the Act provides:

“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.”

Section 5(1)(a) of the Act requires an employer to give written notification of a material change to an employee’s terms and conditions within one month of the change taking effect. It was not in dispute between the parties that there was a reduction to the Complainant’s weekly working hours and his annual leave entitlements. I am satisfied that these changes constituted material changes to the Complainant’s terms and conditions of employment. Moreover, I am satisfied that there was an obligation on the Respondent in accordance with the provisions of Section 5 of the Act to notify the Complainant of these changes within one month of the changes taking effect. It would appear from the evidence adduced that these changes took effect during 2018 and that the Respondent did not issue a revised contract of employment to the Complainant to reflect these changes until December, 2019. This written notification clearly occurred outside of the one-month period provided for in Section 5 of the Act.

Having regard to the evidence adduced, it is clear that there was discussion and consultation between the parties in relation to the changes to his terms and conditions and that these changes were not imposed unilaterally by the Respondent. Notwithstanding the attempts by the Respondent to notify these changes to the Complainant, I am satisfied that there was a contravention of Section 5 of the Act albeit that I regard the breach as being at the less serious end of the spectrum and, therefore, I have reflected this in the level of the award. Accordingly, I find that the Respondent contravened the provisions of Section 5 of the Act and that the complaint is well founded.

Decision:

CA-00032156-002 – Complaint under the Payment of Wages Act, 1991