DWT2226

1.Appeal Of Adjudication Officer Decision No ADJ-00030000.

BACKGROUND:

2.The complainant made an appeal against the Adjudication Officer’s decision: ADJ-00030000 under the Organisation of Working Time Act, 1997. A Labour Court hearing took place on13th April 2022. The following is the Determination of the Court:



DETERMINATION:

The matter before the Court is an appeal by CLS Recruitment Group Ltd against a decision by an Adjudication Officer (Adj-00030000) in a complaint made by Mr Joseph Kuyewawa under the Organisation of Working Time Act 1997 (the Act).

The Adjudication Officer decided in a linked claim within the same decision that the Complainant was employed as a Skilled Labourer Category B Worker as defined in the Construction Industry SEO and that the Respondent had failed to apply the correct statutory rate of pay as set in the 2019 Construction Industry Sectoral Employment Order to the Claimant.

The Adjudication Officer decided that the Complainant was paid incorrectly for his annual leave and public holidays and should be paid according to the rate set out in the 2019 Construction Industry Sector Employment Order.

A Notice of Appeal was received by the Court on 15 June 2021. A remote case management hearing of the Labour Court was held on 7 January 2022, following which both parties provided supplementary submissions. A remote Labour Court hearing was held on 13 April 2022. For ease of reading, the parties are referred to in this Determination as they were at first instance. Hence, Mr Kuyewawa is referred to as the Complainant and CLS Recruitment Group Ltd is referred to as the Respondent.

POSITION OF THE COMPLAINANT:

The complaint under Organisation of Working Time Act was lodged on 15 May 2020. The relevant period for consideration for the compliant is the period from 15 November 2019 until the Complainant left the employment of the Respondent in mid-February 2020.

The Complainant was a Category B worker for the purposes of the Construction Sector SEO. The 2019 Sectoral Employment Order for the Construction sector came into law on 1 October 2019 and set an hourly rate of pay for Category B workers of €17.50 per hour.

The Complainant was paid €13.75 per hour during the period from 15 November to 31 December 2019. He was not paid the correct statutory rate of pay €17.50 per hour and the difference in pay for this period was €3.75 per hour. He was paid €15.70 per hour from 1 January 2020 until the Complainant left the employment of the Respondent in mid-February 2020. He was not paid the correct statutory rate of pay €17.50 per hour and the difference in pay for this period was €1.80 per hour.

The Complainant took 16 hours annual leave during week 51 (2019) and 24 hours annual leave during week 52 (2019). The Complainant submits that he was paid €550 for 40 hours leave taken in weeks 51 and 52 of 2019. He should have been paid the SEO rate of pay (€17.50 per hour x 40 hours = €700). The difference in pay is €150.

The Complainant took 6.5 hours annual leave during week 6 (2020). The Complainant submits that he was paid €103 for 6.5 hours leave taken in 2020. He should have been paid the SEO rate of pay (€17.50 per hour x 6.5 hours = €114.80). The difference in pay is €11.00.

The 2019 SEO states that Public Holidays should be paid for all hours worked at a rate of double time plus an additional day’s leave. The Complainant was not paid the correct statutory rate of pay €17.50 x 3 as provide for in the 2019 SEO for the public holidays that fell within the cognisable period for the claim.

The Complainant’s annual leave and public holiday entitlements were paid at the incorrect pay rates during the cognisable period for the claim. The Complainant should have been paid his annual leave and public holidays entitlements as per the pay rates set down in the 2019 Construction Industry SEO.

POSITION OF THE RESPONDENT:

The contract terms agreed between the Respondent and the client company where the Complainant was assigned specify that the client undertakes to ensure compliance with the Organization of Working Time Act, 1997. The Respondent does not have responsibility for ensuring that the Complainant receives his entitlements under the Act.

THE RELEVANT LAW:

Section 20 of the Organisation of Working Time Act 1997 sets outs provision relating to pay for annual leave as follows:

(2) The pay in respect of an employee’s annual leave shall—

• (a) be paid to the employee in advance of his or her taking the leave,
  (b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and
  (c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

• 3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation.
  (2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
  
  (3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over—
  
  ( a ) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs,
  or
  ( b ) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.
  
  4 Appropriate Daily rate of pay ("the relevant rate")

4. The following, namely—
(a) the rate at which an employee is paid in respect of a day off under section 21 of the Act,
(b) the rate of an employee's additional day's pay under that section, and
(c) the appropriate Daily rate of the employee's pay for the purposes of section 23 of the Act,
(each of which is referred to hereafter in these Regulations as "the relevant rate") shall be determined in accordance with the subsequent provisions of these Regulations.

DISCUSSION AND CONCLUSION:

The Respondent is an employment agency within the meaning of the Protection of Employees (Temporary Agency Work) Act, 2012. The Complainant is an agency worker who was assigned to work for a client company of the Respondent during part of the cognisable period encompassed by the within claim.

While the Respondent submitted that responsibility for ensuring compliance with the Organisation of Working Time Act 1997 rested with the client company where the Complainant was assigned to work, it accepted in response to questions from the Court that the relevant employer for the purposes of the Complainant’s terms and conditions of employment is the Respondent itself.

In a separate complaint before the Court under separate legislation, this Court already decided that the Complainant was a Category Bconstruction operativeencompassed by the Construction Industry SEO and found that the Complainant was not paid the statutory rate of pay required under the terms of the 2019 Construction Sector SEO. The consequence of that decision, which relates to the same parties, is that the rate of pay specified in the 2019 SEO for a Category B Worker is the statutory rate of pay applicable to the Complainant throughout the period encompassed by the within complaint.

The Court was provided with details of the annual leave taken by the Complainant during the cognisable period for the complaint.

The Court finds that the Complainant was paid an incorrect rate of pay for annual leave taken during this period resulting in a shortfall in pay of €161 (€150 + €11).

Three Public Holidays fell during the cognisable period for the complaint. The Court does not agree with SIPTU’s contention that for the purposes of the within compliant, the Complainanat was in effect entitled to treble time reflecting the terms of the 2019 SEO (payment of double time plus an additional day’s leave). The Organisation of Working Time Act 1997 is not the appropriate statutory provision for the interpretation or enforcement of an SEO. The only matter for determination by the Court is whether or not a breach of the 1997 Act occurred in relation to the calculation of the Complainants’ pay for his public holiday and annual leave entitlements.

The Court finds that the Complainant was paid incorrectly for three Public Holidays that fell within the cognisable period for this complaint – 25 December, 26 December, and 1 January. The Complainant is owed the difference in pay for these three Public Holidays.

The Complainant was paid an hourly rate of €13.75 for his public holiday entitlements that fell on Christmas Day and Saint Stephens Day, 2019. Had he received a paid day off on those days, she should have been paid the correct statutory rate of pay €17.50 per hour. The difference in pay for this period was €3.75 per hour.

The Complainant was paid an hourly rate of €15.70 for his public holiday entitlement that fell on New Year’s Day, 2020. He was not paid the correct statutory rate of pay €17.50 per hour and the difference in pay for this period was €1.80 per hour.

The Court finds that the Complainant was paid an incorrect rate of pay for public holidays during this period resulting in a shortfall in pay of €74.40 (16 hours x €3.75 and 8 hours x €1.80).

DECISION:

The complaints of contraventions of the Act is well founded. The Appeal does not succeed.

Annual Leave:

The Court decides that the Respondent should pay the Complainant the shortfall in pay of €161 for his annual leave entitlement taken during the cognisable period. This payment should be made within six weeks of the date below.

Public Holidays:

The Court decides that the Respondent should pay the Claimant the shortfall in pay of €74.40 for his public holiday entitlement during the cognisable period. This payment should be made within six weeks of the date below.

The decision of the Adjudication Officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
SL	______________________
13 May 2022	Deputy Chairman