Complainant

Respondent

Parties

Roy  Hussey

Apleona Ireland Limited (amended on consent).

Representatives

  Self-Represented

MSS People Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061043-001

12/01/2024

The Complainant gave evidence on Affirmation.

There were two witnesses for the Respondent; Ms Sylvia Gorzelak , Contracts Manager,  and Ms Bernadette Twomey, HR Manager who both gave evidence on Affirmation.

The name of the Respondent was corrected at the outset of the hearing to Apleona Ireland Limited.

The Complainant gave evidence that he was not compensated for working on Sundays, which he stated had been his normal working day since he commenced employment on 26 May 2021. He claimed to have worked a total of 73.59 Sundays.

The Complainant testified that he earned €12.70 per hour and that all the heavy work was carried out on Sundays. He stated that he worked regularly on Sundays, with only approximately six Sundays in Winter 2022 when he did not work. The last Sunday he worked was 7 January 2024.

The Complainant also gave evidence that the timesheets were inaccurate and that he had raised this issue with the Respondent on numerous occasions. Evidence was submitted that there were problems with the clock-in system up until December, which accounted for the missing records.

It was submitted by the Respondent that following a review of the rosters, the Complainant did not receive a Sunday premium which the Respondent pays €3.44 per hour. The Respondent conceded to an underpayment of €1,922.10 (588.75 hours @ €3.44 per hour).

It was Ms Gorzelak’s evidence that when she took over in November 2023, the Complainant raised the Sunday premium with her at the first staff meeting.

She was asked about his working hours on a Sunday to which she responded that 20 December 2023 was his last Sunday worked but he may have worked a Sunday in January 2024.

The clock in system was based on a fingerprint system and the data cannot be altered.

It is first necessary to consider Section 41 (6) of the Workplace Relations Act 2015 where Complainant’s evidence that he worked on Sundays as a normal working day from the commencement of his employment on 25 May 2021 up to 7 January 2024 with the Complaint Form received by the Workplace Relations Commission on 12 January 2024.

Section 41 (6) provides:-

“(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.”

There was no application to extend time. Consequently, the time is limited to the period of six months beginning on the date of the contravention, i.e. 13 July 2023. Any complaint outside of this time limit cannot be considered.

Section 14(1) of the Organisation of Working Time Act 1997 provides for a Sunday premium. There is no dispute that the Complainant ought to have received a premium of €3.44 per hour worked on a Sunday. Despite the extensive documentation detailing clock-in times, it is unclear to which period the underpayment relates. As the Complainant’s employer, it was incumbent upon the Respondent to ensure that he was paid in accordance with his contractual and statutory entitlements.

I find this complaint to be well-founded.

I am making no finding in relation to the accuracy of the records where on the balance of probabilities there is not sufficient evidence.

Section 27(3) of the Organisation of Working Time Act 1997 provides:

 “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 of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.” 

I direct the payment of a sum of €3,844.20 in compensation to the Complainant, as this is just and equitable in all the circumstances. The issue was raised on numerous occasions by the Complainant with the Respondent, but he was provided with incorrect information. It was only when the complaint was referred to the Workplace Relations Commission that the error was identified.

I find this complaint to be well-founded.

Sunday Premium.