ADJ-00030860

Complainant

Respondent

Parties

Robert  Samson

Bidvest Noonan

Representatives

  In person

Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00041338-001

30/11/2020

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

CA-00041338-002

30/11/2020

The complaints were submitted to the Workplace Relations Commission on 30th November 2020. The complaints relate to alleged breaches of the Protection of Employees (Fixed-Term Work) Act, 2003. In respect of that Act, the complaint alleges that the respondent did not issue a written statement objectively justifying a fixed-term contract and also that it failed to award a contract of indefinite duration to him. In his complaint narrative the complainant also contends he was not paid correctly by the respondent and that he had not been given any shifts since July 2020. There were also other issues raised by the complainant relating to issues that arose since he commenced employment with the company in 2014 concerning the cancellation of rosters on different occasions since that time. As such matters are outside the timeframe permitted by the legislation, they will not be addressed in this decision. The issue relating to the complainant’s pay within the cognisable period of the complaint has been assigned the Complaint Application No CA-00041338-002.

The matter first came on for hearing on 30th September 2021. The complainant was unrepresented at the adjudication hearing. The respondent for its part stated that it was unaware of the specifics of the complaints although it expressed an interest in trying to resolve the complainant’s issues if possible. On that basis, and with the agreement of both parties, I adjourned the hearing of 30th September 2021 to allow for local level discussions and possible resolution of the complaints.

The matter did progress somewhat at local level and the respondent was of the view that the issues had been resolved satisfactorily. The complainant, however, did not agree and sought a further adjudication hearing. The matter was reconvened on the 10th February 2022.

The complainant outlined several issues of dissatisfaction since his employment commenced in 2014. The complaints relate to cancellation of rostered hours of work, underpayment of wages, holiday pay and non-payment for breaks. In respect of the breaks, the complainant stated that he worked 8.5 hours per shift at a client site since 2016 but was only paid for 7 hours. The complainant further added that he has not been offered any shifts since July 2020. The complainant contends that he is entitled to a permanent full-time position working 40 hours per week at a location suitable to him. He is also seeking retrospective payment for annual leave, breaks and cancelled rosters.

Preliminary points

CA-00041338-001 – Protection of Employees (Fixed -Term Work) Act, 2003.

The respondent raised two preliminary points at the adjudication hearing. The first being that the complainant is not a fixed term worker within the meaning of the Protection of Employees (Fixed-Term Work) Act, 2003. The respondent’s position is that the complainant is employed as a permanent part time worker which is reflected in his contract of employment. Accordingly, the respondent contends that the complaint as submitted should be dismissed.

CA-00041338-002 – Payment of Wages Act, 1991.

The second preliminary point raised by the respondent concerns elements of the complaints relating to allegations that the complainant has been left short of pay in September and October 2016, has not been paid the correct annual leave entitlements in respect of 2019 and has been paid incorrectly between 2016 and 2020 in respect of breaks. The respondent contends that the cognisable period of the complaints is 31st May 2020 – 30th November 2020 and, in the absence of an application to extend time by a further six months, any dates prior to 31st May 2020 are out of time and therefore statute barred. The respondent cited the cases of Moran v Employment Appeals Tribunal and HSE [2014] IEHC 154 and Health Service Executive v John McDermott [2014] IEHC 331 in support of its position on the timing of the complaints as submitted.

Substantive points.

Nothwithstanding its preliminary points in relation to the timing of the complaints and the cognisable period of same, the respondent contends that the complainant was paid for all hours worked and received the correct entitlements in respect of annual leave. The respondent further contends that in line with his contract of employment, the complainant was not entitled to be paid for breaks and while some clients did pay for breaks, it did not apply in respect of the specific client and site where the complainant worked during the period in question. As regards the complainant not receiving offers of any shifts, the respondent contends that on approximately 19 occasions the complainant was offered shifts that were refused and approximately 10 different offers of full-time positions were offered at different locations. The respondent had previously formed the view that matters were resolved when the complainant accepted a full-time position at a suitable location but ultimately, he did not remain in his employment and resigned in December 2021.

I have considered the verbal and written submissions of the parties. In relation to the complaints, I find as follows:

CA-00041338-001 – Protection of Employees (Fixed -Term Work) Act, 2003.

The complainant is not a fixed term worker within the meaning of the Act. The complaint around permanency appears to relate to the complainant’s contention that he is not permanent or working full time hours within the organisation. While the complainant is not a fixed term worker, he wished to outline his complaints in relation to his perceived entitlement to full time hours at a location that suited him. I note that while the complainant was initially employed as a permanent part time employee, there is no issue on the management side to him working full time hours. From the correspondence submitted between hearings, it appears that the employer went to great lengths to facilitate the complainant with full time hours at a location suitable to him. The complainant had moved to Co Cavan and had sought full time work in Dublin for five days a week and there were many offers from the employer in relation to this request. It seemed that despite rejecting a number of offers, a suitable location was identified for the complainant, and he accepted an offer on 15th November 2021, however according to the respondent he worked for only one week and resigned on 3rd December 2021.

In relation to the complaint as submitted, and having considered the matter, I find that as the complainant is not a fixed term worker, he does not have “locus standi” to bring a complaint under the Act. Accordingly, the complaint is not well founded.

CA-00041338-002 – Payment of Wages Act, 1991.

The complaint relating to unpaid wages concerns the worker’s contention that he worked 8.5 hours per day since 2016 but was only paid for 7 hours per day. The 1.5 hours for which the complainant says he was not paid relates to breaks while located at a particular client site. In his complaint form, the complaint stated he is owed approximately 1000 hours pay since 2016.

The reckonable period of a complaint under the Payment of Wages Act, 1991 is the previous six months prior to the complaint being submitted. In the within complaint that period is from 31st May 2020 to 30th November 2020. Issues raised relating to dates prior to 31st May 2020 are out of time and therefore statute barred.

In relation to breaks, the respondent stated that paid breaks do occur on occasion although it is client and site specific and that in some cases direct employees of its clients are paid for their breaks but not in relation to this client or this site. According to the respondent, the site at which the complainant worked closed for lunch and the lunch hour was not paid. In addition, the additional 30 minutes break was also unpaid. The respondent further added that this particular site closed permanently in August 2020.

Having considered the matter, I find that the complainant received his breaks as no issue was raised in relation to not receiving the appropriate rest breaks. In relation to payment for breaks, the complainant did not have a contractual entitlement to be paid for his breaks and it was not the established practice at the specific client site location. Accordingly, I find that the respondent did not breach the legislation as claimed and accordingly, the complaint is not well founded.

CA-00041338-001 – Protection of Employees (Fixed -Term Work) Act, 2003

For the reasons stated above, I find that the complaint is not well founded.

CA-00041338-002 – Payment of Wages Act, 1991.

For the reasons stated above, I find that the complaint is not well founded.

Fixed Term Worker, “locus standi” Paid Breaks. Hours of work