ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031937
Parties:
| Complainant | Respondent |
Parties | Priscilla Betuyaku | Canbe Hospitality |
Representatives | none | none |
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-00042473-001 | 13/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00042473-003 | 13/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00042473-004 | 13/02/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00042826-001 | 03/03/2021 |
Date of Adjudication Hearing: 13/07/2021
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
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. The parties were also afforded the opportunity to examine and cross examine each other’s evidence as part of the hearing.
Background:
At the start of the hearing I explained the implications of a recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC. This meant hearings are now held in public and decisions will not be anonomised. I also clarified that evidence should be taken on oath where there is a serious and direct conflict in that evidence. I told the parties I would be prepared to continue with the hearing without evidence being taken but I would consider what to do if a serious and direct conflict arose. Both parties confirmed they understood what I had said and that they were happy to continue with the hearing. |
Summary of Complainant’s Case:
CA-00042473-001; Organisation of Working Time Act: the complainant submits she worked on Saturdays and Sundays and did not receive any compensation or different payment from the rate she received for working Mondays to Fridays, during the whole time of her employment with the respondent. She received no premium to which she is entitled. CA-00042473-003; Protection of Employees (Fixed-Term Work) Act: in the last month of her employment she was offered a position but the manager changed her mind. The complainant said this decision made her situation unsustainable and she was forced to leave. CA-00042473-004; Organisation of Working Time Act: the complainant says she was on a student visa and only allowed to work up to 20 hours per week. She, and many others in a similar position, worked much more than 20 hours each week. She says she averaged around 33 hours per week. CA-00042826-001; Organisation of Working Time Act: this complaint is the same as CA-00042473-001 in relation to the non-payment of premium for working on Sundays and Saturdays. She also made accusations about the conditions in the workplace which led to her leaving. |
Summary of Respondent’s Case:
CA-00042473-001; Organisation of Working Time Act: the respondent submits the complainant started on the minimum wage but was subsequently paid over the minimum wage, following a review. CA-00042473-003; Protection of Employees (Fixed-Term Work) Act: the respondent submits the complainant was issued with a permanent contract of indefinite duration and therefore has no claim under this legislation. CA-00042473-004; Organisation of Working Time Act: the respondent submits the complainant requested extra hours and was always pleased to work them. CA-00042826-001; Organisation of Working Time Act: see CA-00042472-001 re Saturday and Sunday. The respondent submits the complainant chose to leave, without giving one week’s notice, when she was told she faced disciplinary measures, following an investigation into a bullying complaint against her. |
Findings and Conclusions:
CA-00042473-001; Organisation of Working Time Act: section 14 of the Organisation of Working Time ACT (OWTA) provides that where an employee is required to work on Sundays they should receive additional compensation for so doing. This entitlement to additional compensation only arises where the employee’s rate of pay does not take account of a requirement to work on Sunday. The complainant started in October 2018 on the minimum wage and remained on the minimum wage until 31 January 2019 when she received a pay rise following a review. She received two subsequent rises, after reviews. The respondent made no argument that the pay rises were intended as compensation for the complainant working on Sundays. I therefore conclude the complainant never received appropriate compensation for working Sundays. Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was submitted to the Workplace Relations Commission on 13 February 2021 and therefore the period to be taken into account when investigating this complaint is the six-month period back to 14 August 2020. The complainant worked for the respondent until 7 December 2020. There are 19 Sundays in this period and the complainant says she worked the majority of these. She was being paid a flat hourly rate of €11.30 at this time. Based on all these facts I consider the just and equitable award to be €500. CA-00042473-003; Protection of Employees (Fixed-Term Work) Act: the complainant was at all times on a permanent contract of indefinite duration. I conclude she has no claim under this legislation and the complaint is not well founded. CA-00042473-004; Organisation of Working Time Act: the complainant’s contract of employment made no reference to the specific number of hours the complainant was expected to work each week and made no reference to her student visa. The complainant worked the hours she was given and happily worked more hours when available. This was the complainant’s decision; she was aware of the restrictions on her under the terms of her student visa and chose to work in excess of the permitted hours. There is no evidence she was forced to work extra hours. I find the complaint is not well founded. CA-00042826-001; Organisation of Working Time Act: This complaint is the same as CA-00042826-001 in relation to compensation for working on Sundays. I cannot make two decisions in relation to the same circumstances. The other part of this complaint deals with working conditions which lead to her leaving. However, she made no complaint of constructive dismissal. This complaint is not well founded. |
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.
CA-00042473-001; Organisation of Working Time Act: for the reasons given above I find this complaint is well founded and I order the respondent to pay compensation of €500 to the complainant. CA-00042473-003; Protection of Employees (Fixed-Term Work) Act: for the reasons given above I find this complaint is not well founded. CA-00042473-004; Organisation of Working Time Act: for the reasons given above I find this complaint is not well founded. CA-00042826-001; Organisation of Working Time Act: for the reasons given above I find this complaint is not well founded. |
Dated: 27/07/2021
Workplace Relations Commission Adjudication Officer: Hugh Lonsdale
Key Words:
Organisation of Working Time Act – no Sunday compensation |