ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001176
Parties:
| Worker | Employer |
Anonymised Parties | Security Guard | Security Services provider. |
Disputes:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00001176 | 21/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00001177 | 21/03/2023 |
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Date of Hearing: 09/08/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission, the said Director General will then refer such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
A Trade Dispute in this context will include any dispute between an employer and a worker which is connected with the employment or non-employment, or the terms and conditions of, or affecting, the employment of the worker.
Having confirmed that the Complainant herein is a Worker within the meaning of the Acts and having conducted an investigation into the said trade dispute as described in Section 13 - I, as the so appointed Adjudication Officer, am bound to make a recommendation to the parties to the dispute which will set forth my opinion on the merits of the within dispute.
Under Section 36(1) of the Industrial Relations Act 1990, any party may object to an investigation by an Adjudication Officer of the dispute raised in the complaint form. The Respondent employer must indicate any such objection in writing within 21 days of the notification of the dispute raised in the workplace relations complaint form. In the event that the Employer does not indicate an unwillingness to have this matter dealt with by way of Adjudicator investigation, the Employer will be regarded as having given consent.
If an objection is not received within the required timeframe and in the required format but at a later date it will not be considered valid for the purpose of this Act, and a hearing in relation to the dispute will be assigned.
Section 13 of the Industrial Relations Act of 1969 empowers me to make a recommendation or recommendations to disputing parties and on foot of any investigation so conducted. In making such recommendations I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto. Any consideration on the merits of the dispute will include an examination of the efforts made by the parties to exhaust any and all internal procedures or structures which ought to have been utilised before bringing the dispute to the attention of the WRC. As an Adjudicator, I must avoid making a recommendation which has a collective impact on a body of workers.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was conducted in accordance with the principles of fair procedure in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. In ease of progressing this hearing, I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. As the within matter is a dispute between parties and brought before the WRC using the Industrial Relations Acts it was heard in private and the recommendation is anonymised.
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Summary of Workers Case:
The Complainant was fully represented by a Union representative. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive submission dated the 9th day of August 2023. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The complaints are twofold. The Complainant contends that he is owed outstanding payments for overtime worked by him. The Complainant additionally challenges the Employer’s refusal to include his break hours as working time for the purpose of calculating when overtime should be calculated from. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Employer’s Case:
The Respondent entity was represented by its Employee Relations Manager. The Respondent provided me with a written submissions dated 23rd of June 2023. I have additionally heard from a number of witnesses for the Respondent who were in attendance at the hearing. All evidence was heard following an Affirmation. The Respondent witnesses were questioned by the Complainant representative as appropriate. The Respondent asserts that there are no further monies due and owing to the Complainant. The Respondent further asserts that the manner in which it calculates overtime is a company-wide practise and policy, and one which the Respondent is not willing to change. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.
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Conclusions:
I have carefully considered the evidence adduced by the parties herein. The Complainant has been employed with the Respondent Security company since 2017.
In November of 2022 the complainant raised an issue with the HR Department concerning his overtime hours.
It is common case that the Complainant is entitled to be paid time and a half for any hour of overtime he works. It also appears to be common case that overtime only accrues after the Employee has worked 48 hours in the week (as averaged out over a six-week period).
On foot of the query raised in November of 2022 it became clear to the Respondent that, due to an unspecified glitch in the payroll system, the Complainant was only paid a basic rate for his overtime hours which is a considerable deficit which appears to have persisted over the course of five years. A review of the figures revealed this financial/remunerative shortfall, and the Complainant was paid the extra half time rate for each hour of overtime worked since the start of the employment. The Complainant was therefore paid the sum of circa €4,000.00 on or before the 1st of December 2022. It is regrettable that the Complainant was denied access to a significant part of his remuneration as and when it was earned. It is surprising that such a mistake was made in 2017 and not spotted in the intervening period. I note no apology was made and no explanation ever given.
Despite receiving the amount referred to, the Complainant was convinced that he was still in deficit and in fact he has presented in the WRC claiming that he is still owed a significant amount of money.
The Respondent has asserted that the complainant’s claim is misconceived in this regard. In particular, the Respondent has given evidence as to the in-house policy for calculating hours for the purpose of determining when the Complainant (and indeed any of its employees) should be paid at an overtime rate of time and a half.
In line with the Organisation of working time Act the Complainant is entitled to breaks amounting to one hour in any one 12-hour shift. The Respondent does not count the hour break (which is a paid hour) for the purpose of calculating when the 48-hour threshold has been passed and Overtime commences. This means if an employee does four twelve-hour shifts and is in the workplace for 48 hours he or she has only done 44 hours for the purpose of determining when overtime rates might start.
The Respondent says that it’s policy for discounting break times is widely known in the workplace and is asserted in the following way:-
“Periods of paid breaks and training hours do not qualify in the accumulations of hours for overtime payments.”
I note that there is no legal right to be paid for breaks so that the fact that this break time is paid time at all should be commended.
The Complainant asserts that his Employer should be having regard for Labour Court decision LRC 22436 dated the 27th of July 2021. Given that the Employer in the Labour Court decision is also the Complainant’s employer, it is not surprising that the Complainant would seek to apply the principle set out in that recommendation. This is particularly so, as the Labour Court specifically recommended that:-
“The hour’s paid break on call should form part of the calculation of the threshold for payment of overtime purposes.”
The Respondent acknowledges the fact of this recommendation having been made against the Respondent back in 2021. The Respondent witness, DL, stated that the company opted not to implement the recommendation. The monies involved (across all qualifying employees) would have been too great and was not factored into the agreements already made with clients. In short, despite having entered into the Labour Court process in good faith the Company opted not to implement the recommendation.
The Complainant’s representative was highly critical of the Employer for engaging in a process where it would ultimately not heed the outcome.
The Respondent has maintained it’s position throughout and has not changed in anticipation of the Adjudication process.
It seems to me that the Complainant is asking me to make a recommendation which has already not been implemented and which would tend to have a collective impact on a body of workers as it cannot solely impact the Complainant without impacting all of his colleagues. I will therefore not make the recommendation to include the break time hour for the purposes of determining when overtime should start. I am inclined to recommend an award of monies by way of compensation for the withholding of monies (albeit unintentionally) over the first four to five years of employment. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute. Having already articulated my opinion on the merits of the within dispute, I am recommending that the Respondent pay to the Complainant the sum of €1,500.00 within four weeks of the date of this decision.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
IR - SC – 00001176 – The Complainant was not paid Overtime at the correct rate for nearly four years. I recommend that he be compensated for this oversight in the amount of €800.00
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
IR - SC – 00001177 – I make no recommendation regarding the calculation of working time for the purpose of determining when overtime should commence.
Dated: 31/08/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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