ADJ-00021062

Complainant

Respondent

Anonymised Parties

{A Stagehand}

{A Venue}

Representatives

Ian McDonnell Forsa

Judy McNamara IBEC

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-00027541-001

05/04/2019

The Complainant was employed with the Respondent from 20th October 2011.

The Complainant sought a banded hours contract on 6th March 2019 pursuant to the Employment (Miscellaneous Provisions) Act 2018. He has not received an offer or refusal.

The Respondent says the remedies under the Act are directed to employees and the Complainant is no longer in employment with the Respondent.

The Complainant sought to be placed on band F on 6th March 2019. The Respondent contacted the Department on a number of occasions regarding the changes to terms and conditions on a band. The Respondent wrote to the Complainant’s representatives on 28 March and 15 April 2019 explaining the delay.

On 2nd May 2019 the Complainant resigned from his employment his final day being 13th May 2019. The Respondent received clarification from the Department on 29th May 2019 on the changes to terms and conditions due to being placed on a band of hours and notified the Complainant.

I have heard and considered the submissions of the parties.

The Employment Miscellaneous Provisions Act 2018 provides at section 18A:

“18A.(1) Where an employee’s contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours specified in the Table to this section.

(2) In accordance with subsection (1), where an employee believes that he or she is entitled to be placed in a band of weekly working hours, he or she shall inform the employer and request, in writing, to be so placed.

(3) The employee shall be placed by the employer in a band of weekly working hours from a date that is not greater than 4 weeks from the date the employee made the request under subsection (2).

(4) The band of weekly working hours on which the employee is entitled to be placed shall be determined by the employer on the basis of the average number of hours worked by that employee per week during the reference period.

(5) An employer may refuse to place an employee on the band requested—

(a) where there is no evidence to support the claim in relation to the hours worked in the reference period,

(b) where there has been significant adverse changes to the business, profession or occupation carried on by the employer during or after the reference period,

(c) in circumstances to which section 5 applies, or

(d) where the average of the hours worked by the employee during the reference period were affected by a temporary situation that no longer exists.

(6) This section shall not apply to banded hour arrangements which have been entered into by agreement following collective bargaining.

(7) An employee placed on a band of weekly working hours shall work hours the average of which shall fall within that band for a period of not less than 12 months following that placement.

(8) Where an employee believes that his or her employer has failed to place the employee in a band of weekly working hours in accordance with subsection (3), having been requested to do so under subsection (2) or unreasonably refused a request to be placed on a band of weekly working hours, the employee may make a complaint in accordance with Part 4 of the Workplace Relations Act 2015

(9) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a failure to comply with this section 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, and

(b) where the decision is that the complaint was well founded, require the employer to comply with this section and place the employee on the appropriate band of hours.

(10) Notwithstanding section 27(3)(c), a decision in accordance with subsection (9)(b) shall not order an employer to pay compensation to the employee for the employer’s failure to comply with this section…...

The Act provides the employee seeking banded hours pursuant to S18A (3) should be placed on the band calculated in accordance with the Act within 4 weeks which did not occur. The Complainant has since left the company. The complaint is well founded but no order for compensation is awarded in accordance with the S18 (10) of the Act.

The complaint is well founded but no order for compensation is awarded in accordance with the S18 (10) of the Act.

Banded hours failure to place on band within 4 weeks