ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020540
Parties:
| Complainant | Respondent |
Anonymised Parties | Social Care Worker | Residential Care Provider |
Representatives | none | Did not attend |
Complaint:
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-00027060-002 | 14/03/2019 |
Date of Adjudication Hearing: 24/08/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
In particular, the Complainant herein has referred one complaint:
The Complaint herein relates to a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 14 of the act which provides for compensation for working on a Sunday and provides for a number of ways in which the compensation can be calculated including the payment of an allowance, an increased rate of pay or paid time in lieu.
Section 14 of the Organisation of Working Time Act of 1997 which states:-
14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or
- (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or
- (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
- (d) by a combination of two or more of the means referred to in the preceding paragraphs.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
Background:
By way of preliminary observation, it is noted that the Respondent did not attend the hearing. I allowed for some time before dealing with this matter and proceeded in the absence of the Respondent. I note that the WRC has communicated with the Respondent company and as of the 23rd of July 2020 the proprietor of the company Ms. MC has been on notice of the fact of today’s hearing date. I further note from the File provided, that the Respondent ( through MsMC) has previously communicated with the WRC both in person and through a Human Resource service and I must be allowed to assume therefore that the address to which correspondence is being sent is reaching the appropriate Respondent party. |
Summary of Complainant’s Case:
The Complainant gave oral evidence and I took the opportunity to probe the evidence provided so as to be fully conversant with the facts. The Complainant is a highly skilled Social care Worker who worked with the Respondent entity from March 2016 to April 2019. The workplace is a residential care unit, housing older teenage children from troubled backgrounds and, as such, can be an extremely difficult working environment. The Complainant was one of a team of four or five who worked closely together and supported one another in a workplace that was often volatile and daunting. In giving her evidence, the Complainant described work practices that appeared to put her safety and health at risk. In the course of the employment, the Complainant and her colleagues made fair and reasonable representations to MC regarding the failure to remunerate appropriately and in particular under the same terms and conditions as operated in a sister residential unit being run by the same Employer. I understand that there was a long running dispute regarding aspects of pay, including under the heading of Sunday Pay which is the matter before me at this time. |
Summary of Respondent’s Case:
The Respondent did not attend and did not therefore make out a case or, indeed, dispute the case presented by the Complainant. |
Findings and Conclusions:
The Complainant issued a complaint with the WRC on the 14th of March 2019. This was just shortly before the Complainant terminated her employment with the Respondent. The Complainant is seeking the Statutory recognition for the fact of working Sundays for the six month period prior to initiating the complaint (i.e. from 13th September 2018 to 14th March 2019). In her evidence the Complainant indicated that at no time since 2016 had a Sunday premium been paid, nor does the fact of working Sundays been otherwise acknowledged or compensated. Having heard the Complainant’s evidence I am satisfied that the complainant herein is well founded. I am satisfied that the Complainant worked a considerable portion of the Sundays in the six month period indicated and I require that the employer pay to the employee, compensation in the amount of €2,000.00 as is just and equitable having regard to all the circumstances. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00027060-002 The Complaint herein is well-founded and I award compensation in the amount of €2,000.00 |
Dated: 9th March 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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