ADJUDICATION OFFICER DECISION & RECOMMENDATION
Adjudication Reference: ADJ-00025127
Parties:
| Complainant | Respondent |
Anonymised Parties | A radio controller | A cab company |
Representatives | Self. | Lisa Weatherstone, Peninsula |
Complaint(s):
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-00031853-001 | 25/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00031853-002 | 25/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00031853-004 | 25/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00031853-005 | 25/10/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00031853-006 | 25/10/2019 |
Date of Adjudication Hearing: 29/01/2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant is a radio controller employed by the Respondent since 01/02/2006 and remains in this employment. The Complainant works 24 hours per week and has been absent from work since 7th December 2018 due to injuries received in an accident outside work. In total a total of 5 complaint were received by the Workplace Relations Commission on 25th October 2019, these complaints are as follows: CA-00031853-001 – under section 27 of the Organisation of Working Time Act, 1997 The complainant alleges that she did not receive breaks at work. CA – 00031853 – 002 – under section 6 of the Payment of Wages Act, 1991. The Complainant alleges that she is owed unpaid wages. CA – 00031853 – 004 – under section 27 of the Organisation of Working Time Act, 1997 The complainant alleges that she did not receive annual leave dating back a number of years. CA – 00031853 – 005 - under section 27 of the Organisation of Working Time Act, 1997 The complainant alleges that she did not receive Public Holiday entitlement dating back a number of years. CA – 00031853 – 006 – under section 13 of the Industrial Relations Act, 1969. |
Summary of Complainant’s Case:
The Complainant’s claims under the Organisation of Working Time Act 1997. The Complainant alleges that she was not afforded her statutory breaks while at work. It is also alleged under this legislation that the Complainant did not receive any payment for Public Holidays or any Annual Leave entitlement. The Complainant feels that she is owed €9,974 in relation to the period of 2006 to 2017. The Complainant is seeking payment for outstanding annual leave in 2018 (two weeks) and four weeks in relation to annual leave in 2019. Under the Payment of Wages Act the Complainant alleges that she is owed almost €20,000 because she did not receive the legal minimum pay for a few years. She does accept that she received the legal NMW from October 2018. Under the Industrial Relations Act, 1969 the Complainant fears returning to work as she feels some of her colleagues may well isolate her. |
Summary of Respondent’s Case:
Preliminary Issue One (1): 1. Although still employed by the Respondent, the Claimant has not worked since 7th December 2018. 2. The above complaints were not received by the WRC until the 25 October 2019, some 10 and a half months after the Claimant last attended her place of employment. 3. The Respondent relies on the following section of the Organisation of Working Time Act, 1997 in respect of the claims bearing the reference CA-00031853-001, CA-00031853-004 & CA-00031853-005: Section 27 (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. 4. As the Claimant has not worked since 7th December 2018, any claim that the Claimant is progressing is outside the six (6) months as prescribed by statute. 5. It is further submitted that there has been no reasonable cause advanced by the Claimant to show that an extension of six (6) months is warranted as the Claimant has already lodged a previous complaint with the WRC and that complaint was heard and the decision of the Adjudication Officer is pending. 6. The above argument is echoed for the one (1) complaints bearing the reference CA-00031853-002 and the Respondent relies on the following section of the Payment of Wages Act, 1991: Section 6 (4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.
Preliminary Issue Two (2): 1. Should the above preliminary issue not be accepted then the Respondent relies on the decision of Hogan J. in HSE –v- McDermott [2014] IEHC 331.
2. In the decision Hogan J. held: For the purpose of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. if, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s.6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January 2010 onwards, it would then have been out of time.
3. The Claimant has failed to provide any dates in respect of the complaint bearing the reference CA-00031853-001. 4. In the complaint bearing the reference CA-00031853-002, the Claimant has given a date range from February 2006 to October 2018. 5. Likewise, in the Complaint bearing the reference CA-00031853-004, the Claimant has given the date range from 2006 until March 2018. 6. There is no date stated by the Claimant in CA-0031853-005 and as such, all of the above claims are worded unlawfully as per McDermott and should fail.
Preliminary Issue Three (3): 1. As stated above, the Claimant has previously lodged another complaint with the WRC bearing the ADJ-00021956. 2. This complaint was heard on 23rd October 2019 and at that hearing the Claimant addressed complaints relating to her breaks, holiday pay and hours of work. 3. To date, the decision has not been delivered and should the Adjudication Officer find in the Claimants favour, there is potential for the Claimant to double recover. 4. In this respect, the Respondent relies on the rule in Henderson v Henderson (1842) 3 Hare 100.
Submissions: 1. Should the Adjudication Officer not be with the Respondent in respect of the preliminary issues raised, the Respondent wishes to submit the following in respect of each claim raised by the Claimant.
CA-00031853-001 Organisation of Working Time Act, 1997 2. The Claimant has alleged that she never received either a 15-minute break or a 30-minute lunch break. 3. The Claimant worked the night shift which consisted of being in the office from 18.45hrs to 04.45hrs. 4. The Claimant was the only person in the office at this time and as such was responsible for her own breaks and these would have been taken during the shift when there was downtime. 5. The Claimant was provided with kitchen facilities and was very much in charge of her own breaks and would bring in pots of food to have for her meals. 6. As is evident from the Claimants timesheets, there is a large break in callouts during the Claimants shift and this would have afforded the Claimant an opportunity to take her breaks as there was a consistent pattern of many hours where no calls would come into the office.
CA-00031853-002 Payment of Wages Act, 1991 7. The Claimant has alleged that she was payed below minimum wage from commencing work in February 2006 until October 2018. 8. The Respondent relies on the Claimants claim being out of time but failing that, it is evident from the Claimants P60’s that she was paid minimum wage. 9. It is further submitted that any claim regarding minimal wage should be brought under the National Minimal Wage Act, 2000. 10. Over the years, the Claimant has had large breaks in her employment owing to maternity leave and periods of extended sick leave.
CA-00031853-004 Organisation of Working Time Act, 1997 11. The Claimant has alleged that she was not afforded her annual leave entitlement. 12. Should the preliminary issue fail then this claim is wholly denied by the Respondent and the Claimant enjoyed multiple holidays every year. 13. The Claimant was paid her annual leave entitlement, and this is evident by the Claimant’s P60’s. 14. The Claimant is also attempting to claim for unpaid holiday pay for 2019 despite not attending work with the Respondent since December 2018. 15. The Claimant is alleging that she has been on sick leave during this time but has failed to provide any proof of this to the Respondent.
CA-00031853-005 Organisation of Working Time Act, 1997 16. The Claimant has alleged that she was not paid for public holidays. 17. The Respondent relies on the preliminary issues raised in respect of the claim but failing that the Respondent relies further on section 21(4); Subsection (1) shall not apply, as respect a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of five weeks ending on the day before that public holiday. 18. As the Claimant has not worked since December 2018, the Claimant has failed to work the required 40 hours which would give rise to an entitlement to public holiday pay.
CA-00031853-006 Industrial Relations Act, 1969 19. The Claimant has raised a number of alleged concerns under this complaint. 20. It is the Respondents position that the Claimant had already lodged a previous complaint with the WRC bearing the ADJ-00021956. 21. This matter was heard on 23 October 2019 and a decision is still pending. 22. The Claimant has again attempted to raise the same issue and it is the Respondent position that this matter has already been addressed. 23. Further, the Claimant has never once raised a formal grievance with the Respondent while she was working other than to lodge complaints with the WRC. 24. The Claimant has not attended her place for work since December 2018 at which time she went on holidays and suffered a personal injury while away. 25. The Claimant did not attempt to engage with the Respondent in a view to get back to work. A consultant could have taken place with the Claimant and the potential was there for the Claimant to have been reasonably accommodated to return to work. 26. The Claimant has never indicated to the Respondent that she had any intention of returning to work and the Respondent has kept the office in Palmerstown solely because the Claimant refused to move to the new office. 27. The Claimant has not attended her place of employment since December 2018 and as such the Claimants complaint about the Respondent and other employees not talking to her are completely unfounded and without merit. Conclusion: 28. The Respondent relies on the preliminary issues raised. 29. Failing that, the Claimant has not attended her place of employment since December 2018 despite the Respondent going to great personal costs to keep the Palmerstown office open after the Claimant refused to transfer offices. 30. The Claimant has never raised any type of grievance with the Respondent prior to lodging two (2) separate complaints to the WRC. 31. The Respondent reserves the right to adduce further facts and legal submissions at hearing. |
Findings and Conclusions:
The Complainant has not attended work since 7th December 2018. The Respondent relies on the following section of the Organisation of Working Time Act, 1997 in respect of the claims bearing the reference CA-00031853-001, CA-00031853-004 & CA-00031853-005: Section 27 (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. In relation to CA – 00031853 – 001 this argument stands up and I have to decide that this complaint is out of time and therefore is not well-founded and fails. Since 1st August 2015 section 86(1) of the Workplace Relations Act amends the Organisation of Working Time Act and this sees that statutory annual leave will accrue during periods of certified sick leave. Section 19 (1A) inserted in 2015 reads as follows: 19 (1)(A) For the purpose of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was – (a) At his or her place of work or at his or her employer’s disposal, and (b) Carrying on or performing the activities or duties of his or her work.
By her own admission the Complainant was not providing medical certification in any shape or form to her employer during her absence. CA-00031853-004 & CA-00031853-005: Due to the Complainant’s failure to provide medical certification during her absence I must decide that these complaints are not well- founded and therefore fail. CA – 0031853 – 002. Section 6 (4) A Rights Commissioner shall not entertain a complaint under this section unless it is presented to him within a period 6 months beginning on the date of the contravention to which the complaint relates …………. In this instant case the Complainant is talking about a period from February 2006 to October 2018. I have no jurisdiction to hear this complaint as it is well out of time. CA – 0031853 – 001 – referred under the Industrial Relations Act 1969. The complainant appeared apprehensive regarding a return to work and how her colleagues may react towards her. I cannot make any recommendation or decision regarding what may or may not happen in the future.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
As outlined above. |
Dated: 24th March 2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
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