Complainant

Respondent

Anonymised Parties

Security Worker

Security Company

Representatives

Self

No attendance

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-00038895-001

25/07/2020

As can be seen, the respondent was not represented at the hearing. Having examined the file, the notice of the hearing was sent to the same email address for the same named person in HR who had previously confirmed that there was no objection to the hearing of the complaint be held remotely.

Being satisfied that the respondent was properly notified of the date and form of the hearing, I proceeded to hear the complaint.

The complaint concerns a failure to provide work or payments to the complainant except on occasion in periods February-May 2020.

The complainant selected the Organisation of Working Time Act 1997 In his complaint. However, in the text of his complaint ,expressed some doubt as to the correct legislation for consideration of his complaint. This was a matter discussed with the complainant at the hearing, in effect whether the complaint was one for consideration(without prejudice) under the Organisation of Working Time Act 1997 -2019 , or the Payment of Wages Act 1991,as amended. Part of the consideration lay in the references to what is known within the employment as the MUT (Rostering and Make-Up Time Process) policy within the employment. Also, for consideration were the terms of the statement of terms of employment under which the complainant was employed. There were two such statements, one in 2007 and one in 2008. Having received and reviewed the documents provided by the complainant, I am satisfied that his is a case which falls for consideration under the Organisation of Working time Act 1997-2019(OWT), as amended by the Miscellaneous Provisions Act, 2019 and the complaint is considered by reference to that Act. The correct legislation was therefore selected by the complainant and notified to the parties.

The complainant is employed by the respondent as a security worker since 2007 normally for an average of 24 hours per week at 11.65 per hour-this was his position at the hearing, noting that his form to the WRC gave his hours as 20 per week and 233.00 gross. His nett pay varied depending on his tax allowance at a given time. There were some issues regarding his location in February 2020,a month during which he also took paternity leave. There was a disputed day concerned with study leave. He worked three shifts in March. There was some communication about a named site. On the complaint form and in correspondence to the employer on 01 June 2020,the complainant submitted a claim for the period 6 April to 31 May 2020,during which time he was offered no rostered hours. It is his case that he made numerous efforts by telephone to obtain information and shifts during this period without being offered any work. As clear a statement as he received appears to have been when he was informed over the telephone that there was ‘no work’. He made a claim under MUT for short hours and on June 10th he informed the respondent of his intention to refer a complaint about his short hours to the WRC. In an email on June 15th he was informed that a named person in HR would look after it further and would be in contact with him about his MUT claim. However, he says he received no calls except from an ‘unknown number’ which he could not call back. Then someone put on his schedule ‘contact to employee, he not available to work’ which meant he could not claim under MUT. It is his case that in the period April to end of May he was available for work, but not rostered.

The Respondent did not attend at the hearing. The complaint is considered on its merits based on the uncontested evidence of the complainant, with due regard to the relevant legislation.

This is quite a complex case, requiring consideration of certain contractual documents, together with the terms of the legislation and the provisions of the relevant statutory instrument for the security industry.

Before considering what might be termed the technical and legislative aspects related to the complaint, it is necessary to clarify that, in the absence of any evidence from the respondent, it is accepted that the complainant was available for work in the period 6 April to the end of May, and that he did not receive any offer of work during this period. The complaint was submitted to the WRC on July 25th, 2020 citing the April-May period. While at the hearing, the complainant sought to extend the complaint out to a period of thirteen or fourteen weeks, I am satisfied that as there were efforts to offer him work in June, that the appropriate scope of the complaint to be considered remains April 6th to May 31st, 2020, and this decision is confined to consideration of this period.

The first document to be considered are the statements of terms of employment. The document of 2007 gave 20 hours as the contracted hours. This was replaced in 2008 with a statement which replaced the minimum hours specified in 2007 with the following text:

‘Your hours of work will vary and will therefore be determined on a weekly basis by the NCC having due regard for the fluctuating workload and necessity for cover including during holiday periods and weekends.

And

Your rosters will be notified to you by your NCC.’

Neither statement refers to lay-off or other measures to be followed by the employer when rostered hours are not available. The complainant says he received no further statement after the one signed in April 2008. That statement provides no commitment to minimum hours and appears to worsen the previous contractual commitment to a minimum number of hours per week.

The MUT Policy referenced by the complainant is a collective agreement agreed with SIPTU. This agreement provides arrangements for situations where the employee would like to change the roster; where the employee does not receive their contracted hours in their roster; the rules for making up under rostered time (MUT) and the obligations in the event that the employee is not in a position to attend work. The system provides that if contracted hours are not provided, and the employee has endeavoured to find hours, the individual should forward a request for MUT to the HR department before close of business on the Monday immediately after that roster cycle ends, by sending an email to a specified email address. The MUT does provide for situations where a security employee is barred from a contract for whatever reason which may result in MUT being precluded and a commitment is given to source work elsewhere. There is nothing in the MUT which provides for situations where an employee is not offered work for an extended period but is still regarded as an employee i.e. when a lay-off occurs. While the policy sets out the obligations on the employee, for example to make the necessary contacts, there is nothing   in the policy which sets out the obligations on the employer regarding written notice of changes whether that is to minimum hours, location or an inability to provide rostered hours at all, for what reason and for what duration.

The conclusion from the reading of the relevant extracts from the MUT Policy is that it appears to provide for situations where the employer has contracted hours available   but does not provide them to the employee, for whatever reason. The policy does not provide for situations where, as in this case, the employer does not offer any rostered hours, or anything in writing to that effect, to the employee and on an ongoing basis. The conclusion is that the terms of this policy provide no commitment to the complainant in his particular circumstances.

The most recent ERO for the Security Industry is S.1. 231/2017.

Section (4) of the S.I. under hours of work/rosters states:

‘Completed rosters setting out all hours of work for a minimum period of one week will be made available to workers in writing. Other than in exceptional circumstances completed rosters will be issued and made available to the worker a minimum of 3 days in advance of commencement. Rosters are subject to flexibility relating to operational and business needs.

And

‘(14) Workers who enter the industry will be offered a contract of employment with a minimum of 24 hours per week after 6 months of service.

And

While the ERO will cover all workers including existing workers ,it will not impact any current arrangements agreed by the employer/worker whereby the hours are less than those provided for in the ERO.’

In the absence of any written commitment to minimum hours in his statement of employment, it could be said that, unintentionally perhaps, that the terms of the ERO are of no value to the complainant. Had his contractual commitment to twenty hours as set out in 2007 remained in place, he would have a contractual commitment to those hours and the qualifying provision of the second subsection of clause (14) of the ERO would apply to him. However, his revised statement of 2008 provides no floor to his hours of work and no minimum commitment. Section (4) appears to apply in circumstances where work and therefore rosters hours are available.   Or, in the alternative, the ERO allows flexibility for operational reasons to the employer, but with no commitment to informing the employee with notice, when rostered hours are not available, at all and crucially ,for how long rostered hours will not be available. As it stands, the complainant has a zero hours contract of employment, which is permitted by the terms of the ERO.

From the forgoing, while there are many worthy aspects to the conditions of the MUT policy and the ERO, neither of those agreements provide any advantage for the circumstances in which the complainant found himself. The terms do not provide for the obligations of the employer where there is no work, or where is not formally offered, for an extended period such as to comply with the terms of the Redundancy Payments Act as a period of lay-off , and which may trigger the complainants rights , should he wish to exercise those rights, in circumstances where that lay-off continues for a period in excess of four weeks. In this instance, based on his uncontested evidence, the employee learned that the contract on which he had been employed was terminated, for whatever reason. He received no notice of lay off or the potential duration of such a lay-off and, in the absence of a lay-off his employment was simply suspended, leaving him to follow up looking for work. This lack of formality left the complainant on a zero hours contract, unpaid and in limbo. In the period 6 April until the end of May, there is no evidence that he received any formal notice regarding his position.

Accepting that the complainant was available for work but was not placed on lay-off and in concluding that the terms of the MUT Policy do not apply to his circumstances, the question which goes to the heart of his complaint, is whether the complainant is entitled to any payment for the period 6 April to end May 2020. Given that the complaint is to be decided under the terms Organisation of Working Time Act, the sections fall to be considered are those inserted into the legislation under the Employment Law(Miscellaneous Provisions) Act 2018. The sections and subsections relevant to this complaint are

18(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week-

(b) as and when the employer requires him to do so

18(2) In a contract for a certain number of hours of work referred to in paragraphs (a) to (c)of subsection (1) the number of ours shall be greater than zero

And 18(4) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection(1) –

(b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself available to do has been done for the employer in that week, at least 25% of the hours for which such work has been done in that week,

then the employee shall, subject to this section ,be entitled –

(i)                  In a case where the employee has not been required to work for the employer at all that week, to be paid by the employer the pay which he or she would have received if he or she had worked for the employer in that week whichever of the following is less, namely-

(ii)                the percentage of hours referred to in paragraph (a) or (b), or

(iii)               15 hours

Applying those subsections of section 18(1) as apply to the complainant in this case, results in the conclusion that section 18 (b),subsection (i)(i) applies to him, and he is entitled to receive a payment calculated on this basis. Allowing for some confusion in the numbering of the subsections of Section 18(4) of the Act-the less of the two calculations, in the case of the complainant is based on twenty(20) hours per week. While these hours are not specified in the contract effective 2008 these were his normal hours of work hours for an extended period and prior to April 6th 2020. These are the hours of work for which he was seeking MUT when contacting the respondent.

Section 18(1)(ii) continues with the basis of the calculation to be applied:

‘and the minimum payment shall be calculated as 3 times……the minimum hourly rate of remuneration established by an employment regulation order, for the time being on force, on each occasion that this occurs.

The hourly rate of pay in the 2017 ERO for the Security Industry applicable in this case is €11.65. The normal hours of work of the complainant were 20 hours per week, 25% or which is 5 hours. Applying the terms of clause 18(1)(ii) to the complainant, he is entitled to receive 5 hours at €11.65 for each of the weeks in the period 6 April to 31 May in which he was available for work x 3 amounting to 5x3x€11.65 =€174.75 for each of the weeks in question. This amounts to €1572.75 gross pay for the nine weeks comprehended by this decision.

On one final point related to the terms of section 18 of the Organisation of Working time Act as amended, is that section (5) states:

‘Subsection (4) shall not apply –

(a)    If the fact that the employee concerned was not required to work in the week in question the percentage of hours referred to in paragraph (a) or (b) of that subsection ,as the case may be-

(i)                  Constituted a lay-off…’

As previously indicated, the conclusion is that the complainant was not notified of a lay-off as defined under the Redundancy Payments Act at any stage and therefore the terms of section 18 (5) do apply in his case.

For all of the reasons set out, the complainant has established an entitlement to payments for the weeks of April 6 to 31 May 2020 in accordance with the terms of Section 18(4) of the Organisation of Working time Act, 1997, as amended.

The complaint under the Organisation of Working Time Act 1997,as amended, is well founded. The complainant is to receive €1572.75 in wages in respect of the period 6 April to 31 May 2020.

Zero Hours