ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00024229
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | A Cleaning Company |
Representatives | The claimant represented himself | The respondent represented himself |
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-00030944-001 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00030944-002 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00030944-003 | 17/09/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00030944-004 | 17/09/2019 |
Date of Adjudication Hearings: 20/01/2020 &10/03/2020
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act 1997 and Section 45A of the Industrial Relations Act, 1946 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
In his complaint form, the claimant complained that he did not receive Sunday premium or overtime. He complained about wages being deducted for travel time between work locations and that a common example of this was “working an 11-hour day from start to finish and only clocking up 8.5 hours after breaks and travel time was deducted”. He stated that while his terms of employment stated that flat time included Sunday premium, he was getting the lowest possible rate provided by the ERO. The claimant stated that his payslips made no reference to overtime or Sunday premium. The claimant stated that the deduction from wages for travel time between bases was wage skimming even though staff are engaged in company business moving from one location to another. He stated that staff were permanently under pressure to achieve ridiculous deadlines from the employer. The claimant set out a list of duties which he said the employer expected to be carried out for free. The claimant submitted that the respondent was in breach of the Organisation of Working Act 1997 for failing to notify him in advance of starting and finishing times. He would receive a Whatsapp or text late the previous evening regarding starting time the following morning and contended that it was not unusual for staff to know their finishing time “until they finish that day”. The claimant complained that he was not notified in advance of additional hours – he said they were commonplace and the respondent expected that they would be worked. He submitted “Advance notice or the option of not working them is similar to rostering. They don’t exist in the company. Flexibility is of the imperative in most cases”. The claimant asserted that his terms of employment made it a condition of employment that all employees be available for , and work , a reasonable amount of overtime as required. The claimant asserted that he did not receive the terms or conditions of employment of the ERO for contract cleaning. In his complaint form, the claimant asserted that his terms of employment were missing key facts including name, address, PPS, hours of work, start date or work location or the respondent’s address. He asserted Health & Safety were ignored by the respondent for cost saving purposes. He asserted that most of the workers were foreign nationals and that they were coerced into signing the back page of their terms without an opportunity to read the terms. The claimant asserted that he was compelled to sign his statement twice on the back page “ which was promptly torn off with no explanation why”. The claimant stated that his written terms were not furnished to him until almost a year after he started. The claimant contended that the respondents tossed away the ERO for contract cleaning and made up their own rules and guidelines. The claimant undertook to submit supporting documentation by way of text message that he contended corroborated the allegations he had made under both Acts. The claimant stated that the respondent was supposed to pay staff for training and didn’t do so. He also complained that the respondent failed to pay travel for the time incurred in travelling between assignments. The claimant was adamant that there was no roster/schedule in place and he usually heard just the night before where he was working the following day. He said that the ERO entitled him to 72 hours’ notice of the location of his assignment. The claimant said he was issued with written terms and conditions but was never given an opportunity to read it. |
Summary of Respondent’s Case:
The respondent denied the claimant’s allegations and took issue with the Health & Safety complaints raised by the claimant. He stated that prior to his recruitment the claimant had been unemployed for a prolonged period and had never previously cleaned in a hospital. He stated that he took a chance in recruiting the claimant on the basis of his lack of experience. No working time records or documentation was furnished by the respondent. The respondent suggested that he could compromise his clients data protection by furnishing documentation . The respondent asserted that the ERO did not provide for Sunday premium and that overtime was only paid after completing 40 hours over a week – Monday through to Sunday. He stated that he had case law that he could rely upon which he would furnish to the WRC. He stated that the roster furnished to his staff allowed for travel time between locations. The respondent said that staff were given a time sheet of work arrangements and that the text messages referred to by the claimant were merely an aide memoir. He asserted that with respect to notice to staff that they gave “as much as we can”. The respondent asserted that the claimant regularly worked 72hours up until his last 4 weeks in employment. The respondent stated that the claimant’s contract was standard contract , was legal and above board. The respondent submitted that overtime was only paid after 40 hrs and that the ERO did not provide for a premium for working on a Sunday. The respondent stated that overtime kicked in after 88 hours and that he had case law on the matter which he would email to the WRC. The respondent asserted that travel time between locations was built into the roster. The employer asserted that all the staff do their training during working time and insisted that there was no requirement on staff to do on line training outside of work. He said the claimant had a weekly time sheet that was broadly the same every week and that the text messages were merely an “aide memoir”. As much notice as possible was given to the staff. He asserted that everyone knew their assignment a week in advance unless there were extenuating circumstances. The respondent said that the weeks following the 20th May 19 fell into the category of extenuating circumstances. The respondent stated that the claimant regularly worked 72 hours up until the last week of his employment. The respondent submitted that all of the claimant’s terms and conditions were above board and legal – he submitted the claimant’s contract was a standard contract.
The respondent asserted that he was fully compliant with the provisions of the ERO. He asserted that the ERO made no provision for the payment of Sunday premium. He submitted that the ERO only specified overtime for work in excess of 88 hours. He again asserted that he had case law in support of this. |
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.
CA-00030944-004
Section 45A of the Industrial Relations Act 1946 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act
The claimant submits that the respondent failed to observe the terms of the ERO by virtue of the non-provision in his contract of employment of Name, Address, PPS No, Hours of Work, Place of Work or Staring date or name and address of employer. Having reviewed the evidence presented at the hearing and noting the cliamant’s contract of employment which was submitted into evidence, I have concluded that the contract did not meet the terms set down by the ERO with respect to the detail outlined above and consequently I declare the complaint is well founded. I require the respondent pay the claimant €750 compensation for this breach of the Act.
The claimant complains that the respondent was in breach of the ERO by failing to pay the claimant for travel time incurred while moving from one site to another. As the ERO is silent on the matter of payment for travel time, I am not upholding this element of the complaint.
The claimant submitted the respondent was in breach of the ERO with respect to the payment of overtime. The respondent submitted that overtime kicked in after 88 hours and asserted he had met his obligations in full under the ERO. The ERO specifies that “Overtime rates shall be paid after 44 hours worked Monday-Sunday. Time & one half for the first four hours and double time thereafter. Sunday overtime to be paid at the rate of double time for all hours worked ”On the basis of the evidence presented by the parties, their respective interpretations of the overtime provisions of the ERO and the absence of records submitted by the respondent, I have concluded on the balance of probability that the respondent was not paying the ERO overtime rates and accordingly I am upholding this element of the complaint. I require the respondent to pay the claimant €500 compensation for this breach of the Act.
CA-00030944-001
Section 27of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
The claimant submitted that the respondent was in breach of the Act by virtue of the non-payment of Sunday premium. I note that the claimant’s contract of employment reference to Sunday premium specifies as follows: “The rate of pay will be determined by the Employer, taking into account the requirements of the National Minimum Wage Act 2000. Your current rate of €10.05 per hour and this includes a premium for any Sundays which you may be required to work”.
The claimant’s complaint was received by the WRC on the 17.09.2019. Accordingly, the time frame for consideration of the complaint is the 18.03.2019 – 17.09.2019. It was submitted that during the relevant time frame the claimant was in receipt of the minimum rate provided under the ERO of €10.80 per hour. On the basis of the evidence presented by the parties and the absence of any working time records furnished by the respondent I have concluded that the claimant was not paid Sunday premium and accordingly I am upholding the complaint. I require the respondent to pay the claimant €350 compensation for this breach of the Act.
CA-00030944-002
Section 27of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
The claimant complains that the respondent was in breach of the Act for failing to pay the claimant for travel time incurred while moving from one site to another. While I note that the claimant has referred to breaches of the Payment of Wages Act 1991 in his submissions, no complaint is before me with respect to an alleged breach of the Payment of Wages Act 1991. As payment for travel time is not comprehended in the Organisation of Working Time Act1997, I am not upholding this element of the complaint.
CA-00030944-003
Section 27of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
The claimant submitted the respondent was in breach of the Act for failing to give him sufficient notice of start and finishing times at work. The claimant submitted that the text messages submitted into evidence supported this contention. The respondent insisted that the text messages were merely an “aide memoir” and that the rosters set out the appropriate times. The claimant argued that the time sheets submitted by him supported his complaint and demonstrated that there were no set work patterns and accordingly no rosters. Given the employers abject failure to submit working time records in addition to the text records submitted by the claimant, I am upholding the complaint of non-compliance with Section 17 and require the respondent to pay the claimant €500 compensation for this breach of the Act.
The claimant submitted the respondent was in breach of the Act for failing to give him sufficient notice of a requirement to work overtime at work. Given the employers abject failure to submit working time records demonstrating compliance with Section 17, I am upholding this complaint of and require the respondent to pay the claimant €300 compensation for this breach of the Act.
Dated: 12th November 2020
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Key Words:
ERO, OWT, Overtime |