Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 18A of the Organisation of Working Time Act 1997

CA-00061366-001

30/01/2024

A complaint under section 27 of the Organisation of Working Time Act 1997 regarding placement on the appropriate band of hours was referred to the Commission on 30 January 2024.

The complainant was employed with the respondent as a health care worker. 

The complainant was removed from a client call on 18 December 2023 resulting in a reduction of 10 hours in her weekly working hours and an equivalent reduction in the complainant’s pay.  The complainant’s weekly working hours were less than what she had worked in the previous 12-month period. 

The complainant’s suspension from work on 1 March 2024 resulted in a further reduction in the complainant’s wages.  It was not clear how the complainant’s wages were calculated while she was suspended but she was paid less than her average weekly wages previously.

The respondent submitted that the complaint under the Organisation of Working Time Act 1997 was misconceived in law as the complainant had not fulfilled the statutory requirements.

Section 18(A)(2) of the Organisation of Working Time Act 1997 puts the onus firmly on the complainant to submit a request in writing to the respondent to put her on a banded hours contract.  The respondent had conducted searches for a request from the complainant regarding banded hours and is certain that such a request was never received.  The respondent only became aware of a banded hours issue on notification of the complaint by the Workplace Relations Commission.   

It was confirmed on behalf of the complainant that the complaint of not having been placed in the appropriate band of hours contrary to the Organisation of Working Time Act 1997 (the “1997 Act”) related to the reduction in the complainant’s hours of work and pay from 18 December 2023 when a client call was removed from the complainant’s work schedule.  The complainant did not resume this particular work during her employment with the respondent.  The complainant’s suspension from work in March 2024 resulted in further reductions and variations in her wages and she was paid less than her normal average weekly wages.  It was submitted that the complainant consequently worked less hours than she had worked in the previous 12-month period.

Section 18A of the 1997 Act provides in relevant part as follows:-

“(1) Where an employee's contract of employment or statement of terms of employment does not reflect the number of hours worked per week by an employee over a reference period, the employee shall be entitled to be placed in a band of weekly working hours specified in the Table to this section.

(2) In accordance with subsection (1), where an employee believes that he or she is entitled to be placed in a band of weekly working hours, he or she shall inform the employer and request, in writing, to be so placed.

(3) The employee shall be placed by the employer in a band of weekly working hours from a date that is not greater than 4 weeks from the date the employee made the request under subsection (2).

(4) The band of weekly working hours on which the employee is entitled to be placed shall be determined by the employer on the basis of the average number of lours worked by that employee per week during the reference period.

…

(14) In this section “reference period” means a period of 12 months after the commencement of employment with the employer and immediately before the employee makes a request under subsection (2), and a continuous period of employment with that employer occurring immediately before the commencement of section 18 A shall be reckonable for the purposes of this section.”

The entitlement to be placed in a band of weekly working hours in accordance with section 18A is subject to the employee having informed their employer and made a written request to be so placed. 

Section 18A(8) of the 1997 Act is clear in providing that a complaint of a failure to comply with section 18A requires a request to have been made in accordance with section 18(A)(2).   

I note that the complainant was informed by the Commission on acknowledgement of receipt of her complaint that an Adjudication Officer could not deal with her complaint unless a written request had been submitted to the employer.

There was no evidence before me of the complainant having made a request in writing to be placed in a band of weekly working hours   Accordingly, I find that this complaint is not well founded.

For completeness, I have considered documentation submitted by the complainant which included emails in late March 2024 and early April 2024 in which the complainant queried the amounts she had received in pay.  These do not constitute requests within the meaning of section 18A of the 1997 Act and furthermore cannot ground a complaint of a contravention of section 18A in circumstances where the communications occurred at a time subsequent to the referral of the complaint to the Commission.  A communication from the respondent of 9 April 2024 responded to the complainant on her pay-related queries.

For the reasons set out above, I find that this complaint is not well founded.

Organisation of Working Time Act 1997 – Banded hours – Request – Condition precedent