ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025221
Parties:
| Complainant | Respondent |
Anonymised Parties | A Forecourt Attendant | A Petrol Station |
Representatives | Francis Daly B.L. instructed by Branigan & Matthews Solicitors | Owners/Directors |
Complaints:
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-00032048-001 | 07/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032048-002 | 07/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032048-003 | 07/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032048-004 | 07/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032048-005 | 07/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032048-006 | 07/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00032048-007 | 07/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00032048-008 | 07/11/2019 |
Date of Adjudication Hearing: 09/03/2020
Workplace Relations Commission Adjudication Officer: Andrew Heavey
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.
Background:
The complainant was employed by the respondent as Forecourt/ Carwash Attendant from May 2011 until 12th June 2019. The complaints were lodged to the Workplace Relations Commission (WRC) on 7th November 2019. The cognisable period of the complaints is 8th May 2019 – 7th November 2019. As the complainant’s employment ended on 12th June 2019, the period of 8th May 2019 – 12th June 2019 is reckonable for the purposes of the within complaints (excluding the annual leave complaint). Note: There is significant duplication in the within complaints. The entirety of the complaints relates to five issues; Annual Leave, Public Holiday entitlements, Breaks while at work and two alleged breaches of the Terms of Employment (Information) Act, 1994. These issues will be dealt with under Complaint Applications No’s: CA-00032048 -001, CA-00032048 -002, CA-00032048-003 CA-00032048-007 and CA-00032048-008. The remaining complaints are duplicates and are not well founded. |
Summary of Complainant’s Case:
CA-00032048-001 – Annual Leave The complainant’s representative stated that in the eight years of the complainant’s employment with the respondent he received only two weeks of annual leave each year in contravention of Section 19 of the Organisation of Working Time Act, 1997. The complainant is seeking compensation in relation to the breaches of the legislation. CA-00032048-002 – Public Holiday entitlements The complainant’s representative stated that the complainant never received his Public Holiday entitlement for the duration of his employment with the respondent in line with the provisions of Section 21 of the Organisation of Working Time Act, 1997. The complainant is seeking compensation in relation to the breaches of the legislation. CA-00032048-003 – Breaks The complainant’s representative stated that the respondent breached Section 12 of the Organisation of Working Time Act, 1997 in relation to the breaks the complainant received while at work. The complaint relates to the periods from 2011-2013 and from 2016-2019 when the complainant worked from 9am-6pm each day and received a break of 30 minutes per day only. The complaint also relates to the period from 2014-2016 when the complainant worked from 8am -7pm and received a break of 30 minutes per day only. The complainant’s representative submits that, as a shop worker and in line with the provisions of Statutory Instrument S.I. 57 of 1998 - Organisation of Working Time (Breaks at Work for Shop Employees) Regulations, the complainant is entitled to a break on one hour per day while at work. The complainant is seeking compensation in relation to the breaches of the legislation. CA-00032048-007 – Written terms and conditions of employment The complainant’s representative stated that the complainant did not receive a written copy of his terms and conditions of employment in line with the provisions of Section 3 of the Terms of Employment (Information) Act, 1994. The complainant is seeking compensation in relation to the breach of the legislation. CA-00032048-008 – Notification of changes to terms and conditions of employment The complainant’s representative contends that the complainant’s hours of work and pattern of attendance were changed without the complainant’s agreement in September 2018. The complainant stated that apart from disagreeing with the unilateral actions of the employer, he did not receive written confirmation of the changes. The complainant is seeking compensation in relation to the breach of the legislation. |
Summary of Respondent’s Case:
The respondent gave a verbal presentation at the adjudication hearing and submitted additional documentation after the adjudication hearing had concluded. The following is a summary of the respondent’s position in relation to the complaints: CA-00032048-001 – Annual Leave The respondent accepts that the complainant was entitled to 20 days of annual leave each year and that for the most part took only two weeks holidays each year. The respondent stated that the complainant never requested annual leave and that the respondent frequently requested the complainant to avail of his annual leave entitlements and take some time off. In relation to the final two weeks of the complainant’s employment, the respondent stated that the complainant was allegedly absent on sick leave but as he did not produce a medical certificate the respondent paid him holiday pay in respect of that period of time. CA-00032048-002 – Public Holiday entitlements The respondent acknowledged that the complainant did not receive his Public Holiday entitlements while employed by the respondent. The respondent stated that this was due to an oversight on its part and that it is now compliant with the provisions of the legislation in respect of its employees’ entitlements in respect of Public Holidays. CA-00032048-003 – Breaks The respondent contends that it has not breached the legislation in relation to breaks. The respondent stated that while the breaks were not documented, the complainant received a 30-minute break each day. CA-00032048-007 – Written terms and conditions of employment The respondent stated that all employees received written contracts of employment in 2017. CA-00032048-008 – Notification of changes to terms and conditions of employment. It was not denied that the complainant did not receive written notification of the changes to his terms and conditions of employment that occurred in September 2018. |
Findings and Conclusions:
The cognisable period of the within working time complaints (excluding the annual leave complaint) is 8th May 2019 until the complainant’s employment ended on 12th June 2019. The annual leave complaint encompasses annual leave entitlements from 1st April 2019 until 12th June 2019. In relation to each specific complaint, I find as follows: CA-00032048-001 – Annual Leave The annual leave complaint covers annual leave entitlements from 1st April 2019 – 12th June 2019. In that period the complainant would have accrued five days of annual leave. In documentation submitted to the WRC after the adjudication hearing had concluded, the payslip for 21st June 2019 indicates that the complainant was paid for three days of annual leave when he left his employment. On that basis, I find that there is an outstanding annual leave entitlement of two days due to him. CA-00032048-002 – Public Holiday entitlements Within the cognisable period of this complaint, there was one Public Holiday (Monday 3rd June 2019). The respondent confirmed at the adjudication hearing that the complainant was not at work on the day in question and did not receive the correct Public Holiday entitlements due to an oversight. On that basis I find that the complaint is well founded. CA-00032048-003 – Breaks In relation to breaks, I do not accept the complainant’s assertion that he was entitled to a break of one hour per day in line with the provisions of Statutory Instrument No S.I. 57 of 1998. The complainant is not a shop worker, and in my view, the Statutory Instrument does not apply to his employment with the respondent. Section 25 of the Organisations of Working Time Act, 1997 requires that the employer retains records in relation to working time and breaks etc. While the respondent was not in a position to provide records in relation to breaks, it was clarified in the complainant’s own submissions that he received a 30-minute break each day throughout his employment. CA-00032048-007 – Written terms and conditions of employment It was clarified by the respondent at the adjudication hearing that all employees received new contracts of employment in 2017. However, there was no evidence presented that the complainant received a written copy of his terms and conditions of employment within two months of the commencement of his employment as required by Section 3 of the Terms of Employment (Information) Act, 1994 and the complainant’s evidence on the matter was that prior to 2017 he never received a written copy of his contract of employment. CA-00032048-008 – Notification of changes to terms and conditions of employment The complainant is dissatisfied that his hours of work were reduced from five days per week to four days per week in September 2018. As submitted to the WRC, this complaint relates to an assertion that the complainant did not receive written notification of the changes that were made to his hours of work and pattern of attendance. While the complainant may be dissatisfied with the reduction, my decision, under the Terms of Employment (Information) Act, 1994, relates only to whether he received written notification of the changes. From the evidence provided at the adjudication hearing, it is clear that the complainant did not receive written notification of the changes to his terms and conditions of employment in line with the provisions of Section 5 of the Terms of Employment (Information) Act, 1994. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having considered the submissions and evidence of both parties and all of the additional information submitted after the hearing of this complaint, I make the following decisions: CA-00032048-001 – Annual Leave The complaint is well founded. The respondent is directed to pay the complainant two days’ (€156.80) pay in respect of outstanding annual leave entitlement plus an additional €100 in compensation for the infringement of his employment rights. CA-00032048-002 – Public Holiday entitlements The complaint is well founded. The respondent is directed to pay the complainant one day’s gross pay (€78.40) in respect of the June 2019 Public Holiday plus an additional €100 in compensation for the infringement of his employment rights. CA-00032048-003 – Breaks I am satisfied that the complainant received his breaks in line with the provisions of the legislation. Accordingly, I find that this complaint is not well founded. CA-00032048-007 – Written terms and conditions of employment The complaint is well founded. The complainant did not receive written terms and conditions of employment in line with the provisions of Section 3 of the Terms of Employment (Information) Act, 1994. The respondent is directed to pay the complainant two week’s gross pay (€784) in compensation. CA-00032048-008 – Notification of changes to terms and conditions of employment The complaint is well founded. The complainant did not receive written notification of changes to his terms and conditions of employment in line with Section 5 of the Terms of Employment (Information) Act, 1994. The respondent is directed to pay the complainant two week’s gross pay (€784) in compensation. |
Dated: May 20th 2020
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Annual Leave and Public Holiday entitlements, rest breaks, written terms and conditions of employment. |