Complainant

Respondent

Parties

Paul  McDonnell

Bus Eireann

Representatives

Thomas O'Connor National Bus & Rail Union

 John Sheridan Bus Eireann

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042270-001

02/02/2021

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

CA-00042270-002

02/02/2021

The parties are named in this decision and the generic terms of Complainant and Respondent are used throughout the text.

The complaints under the Organisation of Working Time Act and the Payment of Wages Act both relate to annual leave scheduled by the employer for the Complainant in July 2020. There is an agreed system for scheduling annual leave and payment is made in the normal way through the payroll. Holiday pay is not paid in advance, but this was specifically not in dispute as indicated on the complaint form. The complaint(s) relate to the Complainant finding out during the leave period that payment was withheld for five days of his leave related to an issue regarding service days taken by him in previous years. The complaints under the Organisation of Working Time Act was made by reference to section 20 of that Act, Times and Pay for annual leave.

Bus Eireann operates a system of annual leave of the Organisation of Working Time Act allowance of twenty days plus service days. The basic leave is scheduled by the Company in blocks of one to two weeks. The Complainant was allocated his two-week period to be taken in July 2020. Payment was not made in advance-an issue not in dispute. It was when the Complainants wife could no pay for groceries in the supermarket that he found on July 23rd that he had been deducted five days pay without any prior notice or agreement. When he queried the deduction, he was informed that it was because he had overclaimed and was over paid for service days in 2018 and 2019. Representations were made on his behalf and by way of a letter on September 8th, 2020 the statutory leave was restored. A dispute then continued regarding the services alleged to have been overtaken and a Company proposal that the allegedly overtaken leave be deducted from service days. An offer of five additional service days was made verbally in January 2021, which was rejected. Three further service days for 2021 were deducted had been taken from him. He does not agree that he had overtaken his service days at any stage.

At the hearing the Complainant representative confirmed that using the annual leave year April to March as defined in the Organisation of Working Time Act, the Complainant did receive his full entitlement to annual leave under the Act in the leave year 2020/2021.

Background. The Complainant was a school bus driver now employed in road transport since 2010. By agreement with the employees, the annual leave year used in Bus Eireann is January to December each year. There are service related annual leave days in addition to the terms of the OWT. Prior to 2018 the Company operated the leave year contained in the OWT-April to March. Figures were provided for an annual leave deficit of eleven days owed by the Complainant at the commencement of the 2020 leave year. The Respondent acknowledged that this information should have been shared with the Complainant prior to his scheduled annual of two weeks in July 2020. He was rostered for ten days annual leave but only paid for five. He was not paid for July 12th to 18th. He was due payment for these days on July 23rd. Following discussions and representation on his behalf, the Respondent agreed to pay for the five days deducted and offered to restore five of the service days which were calculated by the Respondent as a deficit. This offer was rejected by the Complainant. In the letter of offer of 18th November 2020, the Regional Manager wrote to the Complainant noting that the deducted payment had been restored by that stage, addressing other issues raised by the Complainant and apologising for the embarrassment caused to his wife when the expected payment for annual leave was not in his account. Compensation was refused.

Preliminary Issue-Time Limits.

The Respondent submitted that the complaint was out of time. Reference was made to the statutory time limit of six months for submitting the complaint. The Complainant gave July 23rd as the date on which he became aware of the non-payment on July 23rd, 2020. However, as the complaint was not received by the WRC until February 2nd,2021, the date of receipt fell 10 days outside the statutory limit.

Preliminary Issue-Time Limits

The complaints under both the Organisation of Working Time Act 1997 and the Payment of Wages Act 1991 relate to the same event, albeit different points are made by the Complainant regarding the alleged breaches of the respective legislation.

The event was the withholding of part payment for annual leave scheduled by the employer in July 2020 which he became aware of on July 23rd, 2020. While the payment was subsequently restored, the date of the infringements was given as July 23rd. This is confirmed in a submission on behalf of the Complainant ‘that the breach of his statutory rights occurred on July 23rd, 2020 ‘.

Section 41 of the Workplace Relations Act,2015, sets out the time limits for bringing a complaint regarding an alleged infringement under the Organisation of Working Time and Payment of Wages Legislation.

(6) Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute was due to reasonable cause.

The complaint was submitted to the WRC on February 2nd, 2021. Allowing that the Complainant was in formal communication with the Respondent from the date of a formal grievance (August 2020) it is well established that the fact that internal procedures are ongoing does not automatically provide grounds for an extension of the initial time limit of six months in which to submit a complaint. The Complainant had ample time to submit a complaint regarding the alleged infringements before the expiry of the initial six-month period commencing July 23rd, 2020. Also given that his grievance was couched in terms related directly to the Organisation of Working Time Act indicates an awareness shortly after the alleged contravention occurred, that his rights under that legislation were at issue. What appears to have occurred is the entire dispute became one, not of the application of the terms of the Organisation of Working Time Act as originally intended, but rather one about historical service days claimed as owed to him by the Respondent and rejected by the Respondent. It is that dispute about allegedly overpaid or overtaken service days which led in the first place to the deduction in July 2020.

In the circumstances, given that the Complainants original grievance to the Respondent was couched in terms of the Organisation of Working Time Act and that there was amble time to submit a complaint during the six months which followed, I find no reasonable grounds exist for extending the initial time limit provided for in Section 41(6). The same finding is reached in relation to the complaint under the Payment of Wages Act 1991, where the complaint is essentially the same and the terms of the Workplace Relations Act 2015 at Section 41(6) also apply.

The term well founded in the Decisions is a reflection only of the matter of the time limits. No decision is made or to be read regarding the substance of the complaints as it would be inappropriate to comment on those in any way.

Recognising from the submissions that there is an unresolved issue between the parties regarding service days, there are other means available for resolving such a grievance, one way or the other, as that specific issue does not fall for consideration under the terms of the Organisation of Working Time Act given that the claim exceeds the annual leave terms of that legislation.  The parties were urged to use those alternative mechanisms as the ongoing dispute does not appear to be helping in the employment relationship.

CA-42770-001-Payment of Wages Act,1991 The Complaint made by Paul McDonnell against Bus Eireann under the Payment of Wages Act is not well-founded.

CA-42770-002-Organisation of Working Time Act,1997 The Complaint made by Paul McDonnell against Bus Eireann under the Organisation of Working Time Act,1997 is not well founded.