Complainant

Respondent

Parties

Christopher  O' Toole

Aramark Campbell Catering

Representatives

 IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00056242-001

23/04/2023

Over the course of June to September 2022, the complainant says he worked an additional one hundred and eleven hours. Due to the lack of staff and the volume of customers, these hours were essential.

There was no clock in/out facility to record overtime, however, at the time he was told by the then Acting General Manager to keep a record and that he would receive the hours back as time in lieu over the winter period. This did not happen.

He gave notice of leaving the company in December 2022 and during the notice period was told by the then General Manager to submit all holiday hours and lieu hours for inclusion in the last pay packet.

The final pay packet included holiday pay owed but not the ‘in lieu’ hours.

The complainant contacted the GM by email requesting payment for the lieu hours owed and was told that there was no proof that the hours had been worked so they would have to go back through CCTV records to verify that I was on site for the extra hours.

The complainant requested copies of the CCTV footage and the GM on numerous occasions as well as the on-site bookkeeper and was told the matter would be escalated.

On February 24th  2023 a payment of €336.96 was received by direct debit from Aramark, but without a pay slip or breakdown or explanation of this payment.

He says he is owed €2566.69 Net. He regards the €336.96 paid to him as an effort at compensation for the ‘in lieu’ hours.  This means there is a balance of €2229. 73 outstanding.

The Complainant alleges he is owed €2,230.00 and should be paid on January 27th, 2023. The claim was lodged on April 23rd, 2023, for 111 hours he worked over June and September 2022. 

In his WRC complaint form, he appears to allege he is owed payment for TOIL of a value of €2230.00 accrued between June and September 2022. The complainant lodged the claim on April 23rd, 2023.

In accordance with Section 41 subsection (6) of the Workplace Relations Act, providing the following:

(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

In addition to the above matter, as per the Payment of Wages Act 1991, the date of contravention is stated as June to September 2022, which is out of time in accordance with section 6 (4):

A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable”.

In Moran v Employment Appeals Tribunal and HSE [2014] IEHC 154 the Tribunal made the determination that stated that in relation to section 6(4):

"the language used in this section is clear and unambiguous. In particular, the use of the word "beginning" in the third line is no accident and was used deliberately by the draftsman to make it clear that the time frame of six months runs from the start of the contravention and no other point. Accordingly, the appellant's contention that the complaint can be made at a subsequent time to the beginning of the complaint is unfounded and without merit, as it could lead to the farcical situation where a claim can never be out of time, and this was clearly not the draftsman's intention".

Also, in Health Service Executive v John McDermott [2014] IEHC 331. The High Court gave the following interpretation of s.6(4):

“Yet the relevant statutory language takes us somewhat further, because the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention ‘to which the complaint relates.’ As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.”

The court also provided a definitive illustration of their interpretation:

“It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January 2014 onwards and which is presented to the Rights Commissioner in June 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January 2010 onwards, it would then have been out of time.”

The High Court gave very clear advice on the matter of construction of a complaint and time limits; it said:

“Depending, of course, on the manner in which the complaint is framed, only complaints which “relate” to the last six months (or, if the Rights Commissioner is satisfied that there are “exceptional circumstances” which prevented the bringing of the complaint, twelve months) prior to the presentation of the complaint to the Rights Commissioner will not be time-barred.

It is the respondent’s position that this claim was not filed within the statutory time period. On foot of the above, the cognisable period for the purpose of the Payment of Wages Act is October 24th  2022 to  April 23rd  2023. It is submitted by the respondent that the complainant has failed to put forward any reasonable cause which might have caused a delay in lodging proceedings.

The respondent does not accept that in all reasonableness that the lodging of this complaint should have taken until April 2023, several months since the beginning date of the alleged contravention to which the complaint relates. As such there is nothing in the circumstances of this complaint which could be considered exceptional, and which could be considered to have prevented the Complainant from making the complaint and as such he has not and cannot present a case that can pass the test of “exceptional circumstance”.

The complainant commenced the employment with the respondent on April 4th,  2022 at the Avondale site in the role of Head Chef. The complainant’s last day of employment was January 13th,  2022. As the site was only new to respondent, there was no official clock in and out system up until August 2022. The site used paper sign in and out up until the Kronos system was introduced at the end of August 2022, where employees used the biometric system to clock in and out.

The complainantclaims inhissubmissionthat dueto thebusy periodandlack ofstaffhe had to work additional hours to those rostered.He claims that he was told by the then Managertokeeparecordof thesehoursandtheycouldbetakenbackin thequieterperiodin the winter. Both of thosemanagers left the employment and left no records of those hours or thisagreement.

For the period that the Complainant is suggesting he worked the additional hours, all other members on his roster signed in and out every day. The complainant did not use sign in and out forms although he was fully aware to do so.

The complainant was a salaried employee and a manager who was responsible for the roster and hours worked both for his team and himself. The respondent rejects the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred in line with the remuneration stated in the complainant’s contract

The complainant is arguing that there was a deficiency in payment of his wages on the period in question. The important element to establish is what were the wages “properly payable”to the employee on “that occasion”.

The respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment., No deduction as defined in Section 5 of the Act has been made. Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard.

The complainant’s contract of employment states (page 16):

Overtime will be available from time to time within the unit . Your basic rate of pay will apply to the first 39 hours worked in any working week. All hours including overtime hours will be paid at the basic rate of pay or with agreement from your manager as time in lieu.

The respondent is unaware of any approval of 111 hours as a time in lieu and there is no record in existence to show that the Complainant worked those 111 hours. The Complainant was aware that he was to sign in and out on forms up until the clocking machine will be in operation. All the other employees signed in and out on forms and any additional hours worked were recorded on those forms.

The annual leave year runs October to September each year in the Respondent company. The complainant carried over 10 days of annual leave next year which were used between 10-23 October as per agreement.Any carried over days have to be approved by Operations Director which is a normal procedure, and it was done at that time. At no stage during the month of September or October the complainant disclosed that he had additional 111 hours to carry over.

In fact, on August 7th,  the complainant outlined “ I was owed 5, they are gone now”

If the complainant used all his TOIL by August 7th , it would mean that he worked 111 additional hours between August7th  and September 10th, when he started to use clocking machine. During that time, he worked 23 shifts on site. This would average to 4.82 hours of additional work that the Complainant seems to claim he did every day he was scheduled to be on site.

The respondent denies that the complainant is owed payments for any time off in lieu. There is no evidence at any stage 111 hours were approved by the Operations Manager or any other Manager.

Nonetheless the complainant worked until January 13th,  2022 however he was paid for a full month of work.

There was some confusion about when the complainant first brought this matter to the attention of the WRC.

He made reference to a different complaint reference number (CA-55351) which he says was made on March 1st, 2023.

There is no record of any such complaint form on the case file for the hearing, and the notice of the hearing specified the case number as CA-56242. That complaint form indicates that the complaint was received on April 23rd, 2023.

In response to the respondent’s preliminary points on the time limits and the cognisable period being outside the period for which the complainant says he was not paid, the complainant relies on the fact that he had been promised by his manager that he would get recognition for the extra hours in due course, once he confirmed via the CCTV that the complainant’s claims were true.

The complainant now sees that he was unwise to rely on any such assurances and not to have acted earlier.

In addition to the preliminary point about time limits, (which in this case is decisive) unfortunately for his complaint he had no evidence of the hours worked in any event.

He was not helped in that regard, it seems, by being told that as a salaried employee he was not obliged to ‘clock in’.

This may have been seen as a benefit at the time, and reflective of his status in the business, but this is an entirely separate matter to the obligation falling on the respondent to maintain records of hours worked, breaks taken etc. and it would be prudent to review its practises in that regard to ensure that they are fully complaint with its legal obligations.

However, I find that complaint CA-00056242-1 has not been made within the required six-month time limit and it is not well founded.

For the reasons set out above, I find that complaint CA-00056242-1 is not well founded.

Payment of Wages