Complainant

Respondent

Anonymised Parties

A Manager

A Public House

Representatives

Alastair Purdy & Co. Solicitors

Did not attend

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-00027563-003

06/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00027563-004

06/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00027563-005

06/04/2019

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

CA-00027563-006

06/04/2019

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

CA-00027563-007

06/04/2019

The complainant was employed by the respondent as a Manager from September 1991 until on or about 24th April 2019. These complaints were lodged to the Workplace Relations Commission (WRC) on 6th April 2019 and relate to alleged breaches of the Organisation of Working Time Act, 1997 and the Terms of Employment Information Act, 1994. The complainant also lodged complaints on 2nd May 2019 relating to alleged breaches of the Unfair Dismissals Act, 1977, the Organisation of Working Time Act, 1997, the Terms of Employment Information Act, 1994 and the Payment of Wages Act, 1991. (ADJ000-21500 refers).

CA-00027563-003 – Weekly Rest periods

The complainant contends that the respondent breached the Organisation of Working Time Act, 1997 by failing to provide weekly rest periods in line with the provisions of the legislation.

CA-00027563-004 – Annual Leave (Hours and Pay)

The complainant contends that he did not receive the appropriate Annual Leave entitlements in respect of hours worked while in the employment of the respondent. The complainant contends that by virtue of Section 20(2)(b) of the Organisation of Working Time Act, 1997 annual leave entitlements should be paid in accordance with the normal weekly rate of pay. Accordingly, having received no annual leave the complainant is seeking that he be paid four weeks’ pay in lieu of outstanding annual leave entitlements and compensation in relation to the infringement of his employment rights.

The complainant is also seeking compensation in relation to breaches of the Organisation of Working Time Act, 1997 in respect of annual leave entitlements not provided to him for the entire duration of his employment with the respondent. The complainant is seeking compensation beyond the cognisable period of the complaint submitted for the continuous and blatant breaches of the legislation. The complainant’s representative cited the Northern Ireland Court of Appeal Decision in Chief Constable of the Police Service of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew & Others [2019] NICA 32 in support of its position in that regard.

CA-00027563-005 – Public Holidays

The complainant is seeking compensation in relation to his complaint that he did not receive the appropriate public holiday entitlements for the duration of his employment with the respondent.

CA-00027563-006 – Written terms and conditions of employment

The complainant stated that he did not receive a written statement of his terms and conditions of employment as is required under Section 3 of the Terms of Employment (Information) Act, 1994.

CA-00027563-007 – Written Notification of changes

The complainant stated that he did not receive written notification of the changes to his terms and conditions of employment when his earnings were unilaterally reduced by the respondent from March 2019 onwards following the introduction of a new payroll system.

The respondent did not attend the adjudication hearing and was not represented.

Cognisable period of the complaint

These complaints were submitted to the Workplace Relations Commission (WRC) on 6th April 2019. The cognisable period of the complaints is 6th October 2018 -6th April 2019.Decisions on each complaint are made in accordance with the time limits prescribed under Section 41(6) of the Workplace Relations Act, 2015.

CA-00027563-003 – Weekly Rest periods

Section 13 of the Organisation of Working Time Act, 1997 provides as follows:

13.(1) In this section “ daily rest period” means a rest period referred to in section 11.

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

(a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and

(b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.

(4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.

(5) Save as may be otherwise provided in the employee’s contract of employment—

(a) the rest period granted to an employee under subsection (2), or

(b) one of the rest periods granted to an employee under subsection (3),

shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.

(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.

The complainant stated that the respondent breached the provisions of Section 13 of the Organisation of Working Time Act, 1997 in respect of weekly rest periods. However, the complainant also stated in written submissions that he worked five days per week. On that basis I conclude that he received weekly rest periods in line with the provisions of the legislation and the complaint is not well founded.

CA-00027563-004 – Annual Leave (Hours and Pay)

The complaint was submitted to the WRC on 6th April 2019. The cognisable period of the complaint is 6th October 2018 to 6th April 2019. The entirety of the 2018-2019 leave year is encompassed by the complaint.

The complainant outlined that he did not receive any annual leave in the 2018-2019 leave year and is seeking that he be paid his outstanding entitlements. As the respondent did not attend the adjudication hearing, I was unable to clarify the exact level of outstanding entitlements in respect of annual leave or to obtain adequate records in relation to the complainant’s entitlements. Having considered the matter and on the basis of the complainant’s submissions that he received no annual leave entitlements for 2018-2019 I am satisfied that the complaint is well founded.

Previous entitlements

The complainant cited the Court of Appeal Decision in Chief Constable of the Police Service of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew & Others [2019] NICA 32 in support of its contention that the complainant should be compensated for the breaches of the legislation in relation to annual leave entitlements for the duration of his employment. On this issue I note that Section 41(6) of the Workplace Relations Act, 2015 sets out the time limits in relation to referring complaints to the WRC. The Act provides for a six-month time limit which can be extended to twelve months if reasonable cause can be shown for the delay in submitting a complaint. Any complaint relating to earlier years of annual leave entitlements is clearly statute barred by operation of the six-month time limit prescribed by the Act. This issue was definitively decided in this jurisdiction by the High Court in Royal Liver Assurance v Macken, High Court, Unreported, Lavan J, 15th November 2002.

CA-00027563-005 – Public Holidays

In complaint ADJ000-21500 (complaint application CA-00028152-002) the complainant’s public holiday entitlements were addressed within the cognisable period of that complaint (2nd November 2018 to 2nd May 2019). The within complaint has a cognisable period of 6th October 2018 – 6th April 2019. On that basis, the October 2018 Public Holiday falls within the cognisable period of this complaint yet the other Public Holidays are addressed in ADJ-00021500. In relation to the October 2018 Public Holiday and on the basis of the non-payment of Public Holiday entitlements by the respondent as outlined by the complainant, I am satisfied that the complainant has an outstanding entitlement in respect of Monday 29th October 2018.

CA-00027563-006 – Written terms and conditions of employment

I accept the complainant’s evidence that he never received a written statement of his terms and conditions of employment in accordance with Section 3 of the Terms of Employment (Information) Act, 1994.

CA-00027563-007 – Written Notification of changes

I accept the complainant’s evidence that he did not receive any written notification of the changes to his terms and conditions of employment in accordance with Section 5 of the Terms of Employment Act, 1994 following the changes introduced to the payroll system which occurred in March 2019.

CA-00027563-003 – Weekly Rest periods

This complaint is not well founded.

CA-00027563-004 – Annual Leave

The complaint is well founded. The respondent is directed to pay the complainant €2,472 (four weeks gross pay) in respect of outstanding annual leave entitlements plus an additional €1,000 in compensation for the infringement of his employment rights concerning annual leave entitlements.

CA-00027563-005 – Public Holidays

The complaint is well founded in part. The complainant has an outstanding entitlement to €123.60 in relation to Public Holiday entitlements. The respondent is also directed to pay the complainant €125 in compensation in relation to the infringement of the complainant’s employment rights.

CA-00027563-006 – Written terms and conditions of employment

The complaint is well founded. The respondent is directed to pay the complainant €1,000 in compensation which I consider to be fair and reasonable in all of the circumstances of the complaint.

CA-00027563-007 – Written Notification of changes

The complaint is well founded. The respondent is directed to pay the complainant €500 in compensation which I consider to be fair and reasonable in all of the circumstances of the complaint.

Rest periods, Annual Leave entitlements, Public Holiday entitlement, Written terms and conditions of employment, Notification of changes to written terms and conditions of employment