Complainant

Respondent

Parties

Christopher  Lambert

Ha O'neil Limited Jones Engineering Group

Representatives

Thomas Fitzgerald Unite the union

Lorraine Smyth of Byrne Wallace Law Firm

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047009-001

05/11/2021

This dispute concerns the rate of payment of holiday pay to the Complainant who began working for the Respondent in 2008 and who qualified plumber in 2013. The Complainant ceased working for the Respondent in August 2022. It is common case that the employment relationship was governed by a Sectoral Employment Order, specifically the Mechanical Engineering Building Services Contracting Sector Employment Order 2018.

In 2021 the Complainant was placed on a new shift pattern which involved working 60 hours one week and 24 hours the following week. It involved working unsociable hours and 12 hour shifts. As a result of the above SEO negotiated by his Union much of his hourly rate of pay increased to either time and a half or double time. However, his holiday pay did not take into account the increase to his hourly rate of pay.

After efforts to resolve this issue amongst the parties themselves failed the Complainant referred the matter to the WRC in November 2021 as a breach of the Payment of Wages Act. A hearing was held into the matter on the 10th of February 2022.

Mr Simon Watson attended the hearing on behalf of the Respondent.

The Complainant, Mr Christopher Lambert, attended the hearing represented by Mr Rob Kelly of Unite.

Ms Lorraine Smyth Solicitor representing the Respondent argued that the matter was statue barred as the complaint was framed as to include all public holiday and annual leave pay for 2021, up until November of that year.

The Complainant normally worked a 39 hour week for most of his career with the Respondent. He  moved to a new project in early 2021. This required him to go on 12 hour shifts, for which he received a shift premium and higher rates of hourly pay for working unsociable hours.

These payments were not taken into account in the calculation of the Complainant’s public holidays and his annual leave which were still calculated using the plumbers’ basic hourly rate as set out in relevant SEO. This resulted in a significant underpayment of both types of leave coming to approximately €150 per day.

Following some engagement with the Respondent they conceded he had indeed been underpaid his leave but came to fundamentally different calculations as to how it should be calculated. The Respondent only sought to include the Complainant’s shift premium and not the other premium payments related to his working unsociable hours.

The Respondent denies underpaying the Complainant. The Respondent points to Section 20 of the Organisation of Working Time Act and in particular the regulations outlined in SI 475 of 1997 which determine how the minimum rate of holiday pay is calculated.

Regulation 3(2) clearly excludes any overtime for the calculation of annual leave pay and Regulation 5(1) does the same in respect of public holiday pay.

The Respondent argues that the matter is statue barred as it the complaint has been framed to cover a 10 month period preceding the date it was referred to the WRC. As such the complaint cannot be entertained by the Adjudication Officer.   

The Respondent has raised the issue of time limits as outlined in the Workplace Relations Act 2015. They seek to rely on the Labour Court’s determination in Elsatrans Limited  and Joseph Tom Murray PWD1917, which follows the High Court’s interpretation of the Payment of Wages Act in Health Service Executive v John McDermott [2014] IEHC 331. It should be noted that the latter case was determined before the passage of the current legislation which this matter was referred to me under however it does interpret legislation which is similarly worded.

For clarity the text of Section 41, subsections 6 and 8, of the Workplace Relations Act 2015 state:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The above-mentioned cases appear to interpret Section 41 as meaning that any complaint under the Payment of Wages Act which is framed to include a period more than 6 months before the date of that complaint is automatically outside the cognisable period.

I agree with the Respondent regarding their preliminary issue. The Complaint before me concerns timelines outside the cognisable period. While there was arguably some discretion available to the Complainant to amend the scope of their complaints, they did not do so, and as the Respondent submissions were shared in advance of the Complaint’s I am satisfied they were on notice of the issue.

I should be clear that, on review of the above case law and the in particular the underlying legislation there is scope for me to consider a time frame of up to a further 6 months if I am satisfied there is reasonable cause for the delay. However, the only cause the Complainant’s Union has advanced for the delay was the ongoing engagement between the parties and the hope that the matter might be resolved amicably by agreement. While this may appear to be a reasonable approach on the part of the Complainant, it does not fulfil the requirements of being a reasonable cause as outlined in the above act.

Mr Kelly referred to the Respondent company as one of the best in the sector and an excellent company to work for. He indicated that they maintained a good working relationship with the Union and would make a point of ensuring their workers got their entitlements.

Possibly, in recognition of the points advanced in Respondent’s legal submissions, Mr Kelly indicated that it might be useful for me to give my view on whether the unsociable hours premium rates, outlined in the SEO, were overtime or not. Mr Kelly was of the view that it may help inform further discussions with the Respondent.

While I indicated that this was something I thought might be more appropriately dealt with through the industrial relations channels I see no issue in outlining my view on the issue in this decision. However, I would emphasise that the following are simply obiter remarks that I hope will be useful in a separate IR engagement between the parties. My decision is that the Complainant’s case must fail on the basis of the preliminary points raised by the Respondent.

The Union argues that the Complainant worked a shift pattern of 60 hours one week and 24 hours the following week. That from 2021 this was his normal working pattern and not overtime. The Complainant’s higher rates of hourly pay were obtained, not because of the amount of hours he worked, but rather, because when they were worked.

The SEO is detailed in Statutory Instrument 59 of 2018.

The SEO outlines the minimum rate of pay for those who perform their work during “normal working time” which is 7am – 5pm Monday to Thursday and 7am – 4pm Friday. 

The SEO then outlines the conditions for “other hours worked.”  In this section it is clear that hours worked outside of the above normal hours constitute unsocial working hours and attract premium payments.

If a person was to work a 39 hour working week but would only work those hours outside of the hours of a normal working week (as proscribed in the SEO) then they would still receive the premium rates. Indeed, if someone was to only work 7-8pm one day a week, then they would still receive a premium rate for that single hour worked.

It should be noted that the guide to this SEO, as published on the WRC website, refers to the unsociable hours section as Overtime Rates, however this is not what the Statutory Instrument itself says. SI 59 of 2018 refers to these rates under the heading of Other Hours Worked.

I agree with the Union’s view that the premium payments detailed under the “Other Hours Worked” section of the SEO are not analogous with overtime.

In the circumstances set out above I decide that this complaint is not well founded.