ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00039890

Parties:

	Complainant	Respondent
Parties	Sean Hanley	Felix O'Hare & Co Ltd

Representatives

Self

Company Representatives

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00050565-002	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00050565-004	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00050565-005	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997	CA-00050565-006	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00050565-007	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00050565-008	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015	CA-00050565-009	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000	CA-00050565-014	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00050565-016	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00050565-017	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00050565-018	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00050565-019	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00050565-020	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00050565-021	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00050565-022	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00050565-023	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00050565-024	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00050565-025	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00050565-026	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00050565-027	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00050565-028	10/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00050565-029	10/05/2022

Date of Adjudication Hearing: 13/06/2023

Workplace Relations Commission Adjudication Officer: John Harraghy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation. The parties were also advised of their right to cross examine any witnesses.

The parties were also notified of these changes by the WRC in the letter confirming details of the hearing.

All evidence in this case was taken on affirmation. The Complainant was accompanied by a witness, Mr John McKenna and the Respondent was represented by Mr Damien Gill, Director, Mr Peter Maguire, Commercial Manager and Mr Gerard Brooks, Contracts Manager.

Background:

The Complainant was employed as a Gate Man by the Respondent from 24/05/2021 until 19/11/2021. He was paid €14.00 per hour and worked 39 hours per week. He was dismissed on 19/11/2021. The Complainant submits that the failure of the Respondent to issue him with a contract of employment led him to submit a range of complaints to the Workplace Relations Commission (WRC) on 10/05/2022. The Respondent submits that the Complainant was issued with a contract of employment which he admitted that he lost.

Summary of Complainant’s Case:

The Complainant gave evidence on affirmation and confirmed that he sent an e mail to the Respondent on 30/04/2021 enquiring if there was a vacancy for a Gate Man. He lived adjacent to the site and outlined his previous experience. The Site Manager, Mr Peter Quinn, contacted the Complainant and outlined the role to him. Following that conversation, the Complainant was offered the role at the rate of pay of €14.00 per hour. The Respondent also requested that the Complainant provide details of his Safe Pass, CIS Covid induction, undertake a manual handling course and provide confirmation that the was able to use a computer. He commenced work on 24/05/2021 on the site. In addition to his duties as a Gate Man the Complainant also submits that he was required to undertake additional duties on a regular basis. These included cleaning of the canteen and toilets and assisting with the unloading of goods and materials from trucks. The Complainant submitted that it was relevant that he was never asked to provide any documentation or evidence of security training or licence.

The Complainant believes that the additional duties were such that he was a Skilled Operative and therefore subject to the provisions of the Sectoral Employment Order (Construction Sector) 2021 [SEO]. The Complainant submits that he met the criteria as the Respondent operated in the construction sector. This would have resulted in him having enhanced payments of €18.99 per hour or alternatively if he was classed as a new entrant, he would have received pay of €15.35 per hour. The SEO also makes provision for pension contributions, death in service contribution and sick pay.

The Complainant disputes the assertion that he was issued with a contract of employment. He did acknowledge that he sent an e mail to the Site Manager on 08/10/2021 seeking a copy of his contract and stating that he had lost his copy. He explained that his reason for saying he lost the contract was because he did not want to fall out with the Site Manger.

During his employment the Complainant said that he remained unsure of what his weekly hours were. He submitted a query to the Wages and Salaries Officer on 10/06/2021 about his working hours. He received a reply which explained the hours and provided an example from one of this weekly time sheets to illustrate this. It was explained that they may usually work from 7am to 5pm (4pm on a Friday) his break time of 30 minutes is deducted from those hours, and it was confirmed that no employee in the company is paid for their breaks.

The Complainant made further contact with the Wages and Salaries Officer on 26/08 2021 by e mail seeking further clarification in relation to these hours and the rate of overtime. He highlighted that as he was due to start work at 5am the following day he wanted to know if this was paid at double time. The Complainant also highlighted that he was not getting his breaks. A comprehensive reply was sent by the Wages and Salaries Officer who clarified that:

a) The working week starts on a Monday and ends on a Sunday

b) The basic hours are 39 (8 hours Monday to Thursday and 7 on Friday)

c) Double time is only paid for Sunday working if such is agreed by Management

d) The Wages and Salaries Officer cannot pay for breaks not taken and he was advised to follow this up with the Site Foreman, Contracts Manager or the Director.

The Complainant raised a query with the Contracts Manager, Mr Gerard Brooks, on 02/11/2021 in relation to payments and days in lieu of working on (bank) public holidays. This arose as he was asked to attend work on the previous public holiday and noted that his time sheet said he would be paid from 9am. The Complainant also noted that while he was as obliging as possible such as attending at 5am when requested and finishing at 10pm he was not getting any notice to say that some days he was required to work four additional hours and on another occasion five minutes notice that he was required to work well beyond his usual finishing time. The Complainant also outlined that he had not got his copy of a contract of employment despite requesting it and he stated that he wanted this “so that there would be no grey areas”.

On 1st October 2021 the Complainant was concerned about the risk involved when he had to facilitate deliveries to the site from the public road and this involved stopping traffic. He raised a query with the Health and Safety Authority as he was aware that there was a major concrete pour scheduled for the following week and this would involve approximately 50 concrete lorries coming on site. He provided further details to the Health and Safety Authority, but they did not come on site at that time.

On 19/11/2021 the Complainant was given one week’s notice of the intention to terminate his employment with effect from 26/11/2021. The Complainant submits that he was never given any warning or had any issues highlighted to him. He submits that in the circumstances this was an unfair dismissal. Because of the effects of this and the working environment on him the Complainant attended his GP. According to the Complainant the GP advised him to resign and not work his weeks’ notice. He done so and submitted a medical certificate.

In response to questions from the Adjudication Officer the Complainant confirmed that he has not worked since that time and remains on illness benefit.

In his concluding remarks the Complainant stated that he was delighted to get the job on site as it was within walking distance of his home. He was doing construction related work and also cleaning of canteen and toilets. He asked Mr Peter Quinn for his contract and never received it. Mr Quinn also asked him to sign weekly time sheets, but he did not let him see what the hours were. The Complainant submitted that if the Respondent provided him with a contract of employment which outlined his terms and conditions, he would not have to make the within complaints to the WRC.

The Complainant confirmed that he was satisfied that he got the opportunity to provide all his evidence at the hearing and confirmed that he had submitted all his documentation to the WRC.

Summary of Respondent’s Case:

The Respondent provided a detailed written response to all the complaints submitted by the Complainant. Mr Gill gave evidence that the Complainant was employed in a permanent capacity as a Gate Man. The Respondent employs a Gate Man on all its sites. The role of Gate Man is to facilitate entrance to the site and record details of all persons and vehicles entering the site. The Complainant sent an e mail to the Respondent on 30/04/2021 enquiring if there was a vacancy for a Gate Man. He was offered the job and the agreed rate of pay was €14.00 per hour. The primary duty of the Complainant was that of Gate Man and other duties assigned were secondary in nature. The Complainant was required to notify the site foreman of any major deliveries. Mr Gill outlined that all major deliveries were stacked on pallets and a forklift was used to take them off the trucks. The Complainant was not involved in this process. Mr Gill stated that the Complainant was not a craftsperson or a construction worker within the meaning of the Sectoral Employment Order and therefore its provisions were not applicable to the Complainant’s employment.

Mr Gill gave evidence that the Complainant always got his breaks. He stated that these may not always have been at the same time. The Complainant’s rate sheets, and time sheets confirm the position and copies have been provided to the WRC. Mr Gill confirmed that when Mr John McKenna was employed, he covered the Complainant’s breaks and prior to that the cover for breaks was organised by the site foreman.

Mr Gill confirmed that a contract of employment was posted to the Complainant, but it was not returned. His hours of work were 7am to 5pm and 4pm on Friday. He was required to work 39 hours per week and any time in excess of this was paid at time and a half.

Mr Maguire gave evidence that the Complainant was sent two copies of the contract of employment. One was for his own records and the second was to be signed by him and returned. The Respondent did not retain a copy, and this was the reason an additional copy was not available. Mr Maguire also gave evidence that the role of Gate Man did not change and so any complaint by the Complainant that he was not notified of changes to his terms and conditions are not well founded.

Mr Gill also gave evidence in relation to the dismissal of the Complainant. It was clear that the working relationship had broken down at that time and he was given the required one week’s notice which was also confirmed in writing. At that time the Complainant was still on probation. Mr Gill outlined that the Complainant’s issues about site safety were unfounded. The County Council had an engineer and an administrator on site at all times. No issued were raised by them in relation to site safety. The Respondent’s own health and safety officer visited the site at least weekly, and no issues were raised. Mr Gill also noted that the Complainant did not raise any issues with the Respondent’s Health and Safety Officer.

Mr Gill denied that the Complainant did not get any breaks. He confirmed that employees are entitled to their breaks and the Complainant was also entitled to his breaks. Mr Gill would not agree that the relationship deteriorated when the Complainant made an issue about his breaks.

Mr Gill also gave evidence that the Complainant was not correct when he stated that he was a fixed term employee. He was a permanent employee from day one. The Complainant was employed directly by the Respondent and as a company they employee approximately 100 employees which is unusual in the sector. Mr Gill stated that the Respondent takes its obligations to employees seriously and that they employ people directly in order to retain people.

Mr Brooks gave evidence that the starting time on the site was 7.00am and the finishing time was typically 6.00pm. On occasions the Complainant may be required to stay later if there was pre planned activity or some delay in relation to site activity. The site was located in a residential area so there were planning restrictions in place.

Mr Maguire gave evidence that the Complainant’s hours were averaged over a 17-week period, and he did not exceed the permitted hours at any stage.

Findings and Conclusions:

The Complainant has submitted a number of complaints in relation to this employment with the Respondent. Both parties provided the hearing with comprehensive submissions including copies of the correspondence exchanged.

CA-00050565-002: The Complainant is seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946. It is the Complainant’s position that his employment should have been categorised as a construction worker and subject to the provisions of the Sectoral Employment Order (Construction Sector) 2021. The Respondent contends that the Complainant’s role does not fall within the definitions set out in the SEO for Craftsperson, Category A, Category B or New Entrant operative worker. Specifically, the Complainant’s duties were not construction duties but were those of a Gate Man with some secondary cleaning duties.

Having considered the matter I am satisfied that the Complainant’s role was that of Gate Man. He applied for such a position and agreed to a wage of €14.00 per hour. There was no evidence presented which would lead me to conclude that his role was such that it meets the criteria of skilled general operative as outlined in the SEO. I have decided that this complaint is not well founded.

CA-00050565-004: The Complainant is seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946. The Complainant submits that he did not get the breaks as set out in the ERO. Given my decision that the ERO did not apply to his employment with the Respondent I also decide that this complaint is not well founded.

CA-00050565-005: The Complainant is seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946. The Complainant submits that he did not get the breaks as set out in the ERO. Given my decision that the ERO did not apply to his employment with the Respondent I also decide that this complaint is not well founded.

CA-00050565-006: The Complainant is seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997. The Complainant submitted that as he was not given a contract of employment, he did not know what band of hours he was in. The Respondent refutes that the Complainant did not receive a contract of employment and submits that he was issued with two copies but did not return a signed copy. The Complainant subsequently told the Site Manager that he lost his copy. The Respondent also submits that the Complainant was aware that his core hours were 7.00am – 6.00pm and that he would be required to work 39 hours per week and any hours in excess of this were paid at time and a half.

The Organisation of Working Time Act, 1997 introduced a right whereby an employee whose contract of employment or statement of terms does not reflect the reality of the hours they have worked over a 12-month reference period are entitled to be placed in a band of hours that better reflects the hours they have worked over a 12-month period. The Complainant in this case did not have a 12-month record of employment. I am also satisfied that the Complainant did not request in writing that he be placed in a band of hours. Having reviewed copies of all the Complainant’s pay slips I am also satisfied that on each pay slip details of the hours he was paid along with any overtime hours were clearly outlined. The Complainant also received detailed clarification from the Wages and Salaries Officer on 26/08/2021 of the hours and times that he was required to work. This communication also provided an illustrative example of a Complainant’s time sheet with an accompanying explanation narrative.

In view of the above findings, I have decided that this complaint is not well founded.

CA-00050565-007: The Complainant is seeking adjudication by the Workplace Relations Commission under Section7 of the Terms of Employment (Information) Act, 1994. The Complainant submits that he did not receive a statement in writing of his terms of employment. The Respondent submits that the Complainant was sent two copies of his contract of employment and was requested to return a signed copy, but he did not do so. He told his supervisor that he mislaid the document and requested a copy from Mr Peter Quinn on 08/10/2021 and subsequently mentioned to Mr Gerard Brooks that he had not yet received a copy of this contract of employment. The Respondent did not provide the hearing with a copy of the Complainant’s contract of employment. Mr Peter Maguire confirmed on behalf of the Respondent that they did not keep a copy of the Complainant’s contract of employment and relied on him to submit a signed one. A template was available.

While it is a matter of dispute between the parties whether or not the Complainant received a copy of his contract of employment it is not disputed that he subsequently requested a copy of this document and did not receive it. The Complainant in his evidence submitted that had he received his contract many of his complaints which he submitted to the WRC could have been resolved if he was issued with it.

This is a complaint pursuant to the Terms of Employment (Information) Act, 1994. The Complainant submits that he did not receive a document which complies with Section 3 of the Act. Section 3(1A) of the Terms of Employment (Information) Act, 1994 states that-

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’ s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’ s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work —

(i) per normal working day, and

(ii) per normal working week.

Section 3 of the Terms of Employment (Information) Act 1994 provides for further details to be given to an employee not later than two months after the commencement of the employee’s employment.

The Terms of Employment (information) Act, 1994 implements an EU directive and applies to all persons working under a contract of employment or apprenticeship (whether on a fulltime or part time basis). It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said statement of terms. The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the statement of terms.

It is disputed whether the Complainant received the contract of employment issued by the Respondent. There is an onus on the Respondent to provide an employee with all details which are fully compliant with the Act and to retain such a document for at least a year after the employment ends. It is clear from the evidence provided on behalf of the Respondent that there was no process in place to ensure that a signed contract was returned and retained.

While some of these terms required may be viewed as trivial and technical in nature it is well established by the Labour Court that a failure to comply at all with Section 3 of the Act cannot be reduced to a trivial or technical matter. In the case of TED2013 the Labour Court stated: “If this Court were to accept the contention that a total failure to comply with Section 3 of the Act was a breach of such little significance as to allow the application of the de-minimus rule, the Court would, in effect, be allowing that Section 3 of the Act could, as a general proposition, be ignored unless a worker could show a detriment arising therefrom. The Court does not accept that such a contention can be drawn”.

I find that there was a contravention of the Act during the relevant period. In circumstances where I consider the complaint to be well founded, I may require a statement to be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances. Given the circumstances of this case there is no longer a requirement to provide the terms to the Complainant. I am guided by the Labour Court inMorehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.3 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied. Having considered the evidence in this case I do not believe that the full compensatory limit under section 7(2) should be applied. I therefore order that the Respondent pay the Complainant the sum of €1,638.00 representing three week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case. For the avoidance of doubt this amount is calculated on the agreed weekly rate of €14.00 per four for a 39-hour week.

CA-00050565-008: The Complainant is seeking adjudication by the Workplace Relations Commission under Section7 of the Terms of Employment (Information) Act, 1994. The Terms of Employment (information) Act, 1994 implements an EU directive and applies to all persons working under a contract of employment or apprenticeship (whether on a fulltime or part time basis). The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the statement of terms. The Complainant submits that he was no notified in writing of the changes to his terms and conditions of employment. Based on the submissions and evidence adduced at the hearing I am satisfied that there were no changes to the Complainant’s terms and conditions of employment. I find that this complaint is not well founded.

CA-00050565-009: The Complainant is seeking adjudication by the Workplace Relations Commission under Section7 of the Terms of Employment (Information) Act, 1994. The Complainant submits that he did not receive the terms and conditions §as laid down by the SEO which he submitted was applicable to his employment with the Respondent. Having already decided that the Complainant’s employment was not covered by the SEO it follows this complaint is not well founded.

CA-00050565-014: This is a complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000. The Complainant accepts that he was paid €14.00 per hour. As this was more than the National Minimum Wage applicable at that time, I find that this complaint is not well founded.

CA-00050565-016: This is a complaint seeking adjudication by the Workplace Relations Commission under section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003. There was no dispute that the Complainant was a full-time employee and therefore I find that this complaint is not well founded.

CA-00050565-017: This is a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977. The Complainant submitted that he was not aware of how his public holidays were paid. At the hearing the Complainant confirmed that he accepted the explanation provided to the hearing by the Respondent’s Wages and Salaries Officer in her e mail dated 11/05/2023. In that context I find that this complaint is not well founded.

CA-00050565-018: This is a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977. The Complainant submitted that he was not properly paid for his holidays. At the hearing the Complainant confirmed that he accepted the explanation provided to the hearing by the Respondent’s Wages and Salaries Officer in her e mail dated 11/05/2023. In that context I find that this complaint is not well founded.

CA-00050565-019: This is a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977. The Complainant submitted that he did not know what his starting and finishing times were in advance. Mr Gerard Brooks gave evidence that the starting time for the site was 7.00am the finishing time was 5.00pm Monday to Thursday and 4.00pm on Friday. The Complainant was working 39 hours per week and any additional hours were paid at time plus one half. I note that this was clarified for the Complainant by the Respondent’s Wages and Salaries Officer. I find that this complaint is not well founded.

CA-00050565-020: This is a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977. The Complainant submits that he was given little or no notice of the requirement to work additional hours. When he was due to finish at 5.00pm he could be told that he was required to stay on for “hours unknown”. The Respondent acknowledged that there could be planned activity or a delay in site activity which could result in the Complainant having to work some additional hours. Where work was planned the Complainant was informed and in the event of any delay the Complainant was notified as soon as possible.

Section 17 of the 1997 Act provides:

“(1) If neither the contract of employment of the employee concerned nor any employment regulation order, registered employment agreement or collective agreement that has effect in relation to the employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned, of that week.

(2) If the hours for which an employee is required to work for his or her employer in a week include such hours as the employer may from time to time decide (in this subsection referred to as “additional hours”), the employer shall notify the employee, subject to subsection (3), at least 24 hours before the first day or, as the case may be, the day, in that week on which he or she proposes to require the employee to work all or, as the case may be, any of the additional hours, of the times at which the employee will be required to start and finish working the additional hours on each day, or, as the case may be, the day or days concerned, of that week . . . .”

The Complainant confirmed that he was given very short or no notice of the additional hours. The Respondent did not refute this but stated that the Complainant was given as much notice as reasonably possible depending on the prevailing circumstances on the site. The Complainant at no time raised any objections or a grievance but I accept that he queried the payments for some of these hours. In these circumstances I find that the Respondent contravened s 17(2) of the 1997 Act in relation to the Complainant. I find that this complaint is well founded, and I order the Respondent to pay the Complainant compensation of €500.00.

CA-00050565-021: This is a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977. The Complainant submits that he was not paid or did not receive a day in lieu of working a public holiday on 25/10/2021. At the hearing the Complainant confirmed that he accepted as accurate the details of his payments provided by the Respondent’s Wages and Salaries Officer. I have decided that this complaint is not well founded.

CA-00050565-022: This is a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977. The Complainant submits that he was required to work excessive hours contrary to the provisions of the Organisation of Working Time Act. In that context he highlighted that he was on two occasions required to start work at 4.30am. While the Respondent initially confirmed that this could not have occurred as there was no reason for the site to open at those times. When questioned by the Adjudicator it was confirmed that if their time sheets showed a 5.00am start they would accept that this was accurate and correct. Having reviewed the entire collection of time sheets I agree with the Respondent’s evidence that when averaged over a 17-week period the Complainant did not exceed the permitted hours at any stage. I have decided that this complaint is not well founded.

CA-00050565-023: This is a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977. The Complainant submits that he did not get his daily rest breaks. While the Respondent stated that it employed Mr John McKenna to cover the Complainant’s breaks the Complainant stated that while he welcomed this it is not disputed that Mr McKenna did not commence employment until 24/10/2021. The Complainant was dismissed three weeks later, and he submits that for the period from24/05/2021 until 24/10/2021 he was only provided with cover for his breaks on four occasions. The Respondent refutes this and states that all his breaks were covered.

Section 12 of the Organisation of Working Time Act, as amended (the 1997 Act) deals with rests and intervals at work, where it provides:

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

I am satisfied that the Respondent does not come under any exemption and therefore 30 mins rest per shift satisfies the legislation. The Complainant gave cogent evidence that his breaks were not facilitated due to the lack of available cover or duties he may have to perform. In The Tribune Printing & Publishing Group v Graphical Print & Media Union DWT 6/2004- [2004] E.L.R. 222), the Labour Court held that an employer was under a positive duty to ensure that employees received their rest breaks: “Merely stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty.” I am satisfied, based on the Complainant’s evidence that he was denied some breaks in the cognisable period under the 1997 Act, between 24/05/2021 and 24/10/2021

Section 27(3) of the 1997 Act gives direction to the Adjudication Officer on how complaints under the act may be dealt with:

(3) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment.

Adherence to Art. 7 of the EU Working Time Directive, from which the Act derives, is a paramount principle when protecting the health and welfare of employees. Therefore, there must be a deterrent factor in a compensatory sum. There was a pattern whereby the Complainant’s breaks were not granted, or any records created and retained. This will not be considered when calculating compensation, but I cannot ignore the fact that these occasions do not seem to be isolated incidents. I find that that complaint is well founded. I also find that compensation of €1,092, the equivalent of two week’s salary, is just and equitable having regard to all the circumstances.

CA-00050565-024: This is a duplicate of CA-00050565-023

CA-00050565-025: This is a duplicate of CA-00050565-022

CA-00050565-026: The Complainant believes that he should have been paid in accordance with the SEO rate for new entrants. Having already decided that the Complainant’s employment was not covered by the SEO it follows this complaint is not well founded.

CA-00050565-027: This complaint was withdrawn at the hearing as the Complainant was not required to work on a Sunday.

CA-00050565-028: The Complainant submits that he was not paid in line with the SEO entitlements. Having already decided that the Complainant’s employment was not covered by the SEO it follows this complaint is not well founded.

CA-00050565-029: This is a duplicate of CA-00050565-007.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00050565-002: I have decided that this complaint is not well founded.

CA-00050565-004: I have decided that this complaint is not well founded.

CA-00050565-005: I have decided that this complaint is not well founded.

CA-00050565-006: I have decided that this complaint is not well founded.

CA-00050565-007: I decide that this complaint is well founded. I therefore order that the Respondent pay the Complainant the sum of €1,638.00 representing three week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00050565-008: I have decided that this complaint is not well founded.

CA-00050565-009: I have decided that this complaint is not well founded.

CA-00050565-014: I have decided that this complaint is not well founded.

CA-00050565-016: I have decided that this complaint is not well founded.

CA-00050565-017: I have decided that this complaint is not well founded.

CA-00050565-018: I have decided that this complaint is not well founded.

CA-00050565-019: I have decided that this complaint is not well founded.

CA-00050565-020: I decide that the Respondent contravened s 17(2) of the 1997 Act in relation to the Complainant. I have decided that this complaint is well founded and I order the Respondent to pay the Complainant compensation of €500.00.

CA-00050565-021: I have decided that this complaint is not well founded.

CA-00050565-022: I have decided that this complaint is not well founded.

CA-00050565-023: I decide that compensation of €1,092, the equivalent of two week’s salary, is just and equitable having regard to all the circumstances.

CA-00050565-024: This is a duplicate of CA-00050565-023

CA-00050565-025: This is a duplicate of CA-00050565-022

CA-00050565-026: I have decided that this complaint is not well founded.

CA-00050565-027: This complaint was withdrawn at the hearing.

CA-00050565-028: I have decided that this complaint is not well founded.

CA-00050565-029: This is a duplicate of CA-00050565-007.

Dated: 28th June 2023

Workplace Relations Commission Adjudication Officer: John Harraghy

Key Words:

Terms and conditions of employment. Contract of employment. Working hours. SEO