ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00029316

Parties:

Complaints:

Date of Adjudication Hearing:  04/07/2023, 10/06/2024, 08/10/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

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

Background:

The Complainant worked as an AC Engineer with the Respondent.  He submitted a number of complaints in relation to pay and hours of work.

The following were withdrawn at hearing on 08/10/2024:

CA-00038671-005

CA-00038671-007

CA-00038671-008

CA-00042296-001

Summary of Complainant’s Case:

CA-00038671-001

The Complainant was employed by the Respondent from 06/05/2016 on a rate of €19.71 per hour for a 40 hour week.  He was laid off during Covid 19 and eventually received redundancy.

He qualified as an Air Conditioning & Refrigeration Engineer in September 2018, received his certificates in November 2018 and on 15 December 2018 he gave a copy to his Employer.  At that stage he began requesting the higher rate he believed he was entitled to under the SEO for the industry.

The Complainant contends that during his employment he was not paid the correct rate of pay as provided for in the Sectoral Employment Order (SEO) for the industry.   He contends that as a qualified Air Conditioning/Refrigeration Engineer he should have been paid a minimum rate of €23.49 per hour, whereas he was paid €19.71 per hour.  This shortfall is in respect of the period from 01/09/2019 to 20/03/2020.  He contends that the rate between 15/12/2018 and 31/08/2019 should have been €21 per hour whereas he was paid €19.71.

CA-00038671-004

The complaint here is that the Complainant did not receive adequate rest periods in accordance with the Organisation of Working Time Act 1997.  The Complainant stated that he did not receive breaks. He stated that start times varied, but usually it was an 8.00am start and he would sometimes have to work up to 4 or 6pm.  He had to eat lunch or have breaks in his van.

CA-00038671-006

The complaint here is that the Complainant did not receive the requisite information provided for in the SEO in his contract of employment and this is in contravention of the requirements in the SEO.

Summary of Respondent’s Case:

The Respondent was notified of the time, date and venue of the hearing convened to hear the parties in relation to the complaints.  The hearings convened for 4 July 2023 and 10 June 2024 were postponed to allow the Respondent make submissions and provide for representation.  A written submission was received but there was no appearance by the Respondent or a representative on the final day convened on 8 October 2024.

Findings and Conclusions:

Time limits

Section 41 (6) of the Workplace Relations Act 2015 provides:

“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.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after 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 Complainant argued for an extension of time due to the fact that the Respondent knew he was on the wrong rate and he had been seeking the correct rate from December 2018.  He also referred to his contract of employment which stated that he would be paid the appropriate industry rate.

In Cementation Skanska Ltd v Tom Carroll DWT0338 the Labour Court provided its view of the

standard that should be applied in applications for time extensions under the grounds of

“reasonable cause”.

‘It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant to

show that there are reasons which both explain the delay and afford an excuse for the delay.

The explanation must be reasonable, that is to say it must make sense, be agreeable to reason

and not be irrational or absurd. In the context in which the expression reasonable cause

appears in the statute it suggests an objective standard, but it must be applied to the facts and

circumstances known to the Complainant at the material time. The Complainant’s failure to

present the claim within the six month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay

and the Complainant should satisfy the Court, as a matter of probability, that had those

circumstances not been present he would have initiated the claim in time. The length of the

delay should be taken into account. A short delay may require only a slight explanation

whereas a long delay may require more cogent reasons. Where reasonable cause is shown the

Court must still consider if it is appropriate in the circumstances to exercise its discretion in

favour of granting an extension of time. Here the Court should consider if the respondent has

suffered prejudice by the delay and should also consider if the Complainant has a good

arguable case.’’

In this instant case, I note the claim goes back to 2018.  The complaint was received on 11/07/2020.        The reason proffered by the Complainant for the failure to present the complaint within the 6 month time limit, was that the Respondent knew the Complainant was on the wrong rate and the Complainant’s efforts to have this rectified were not successful.  I find these reasons neither explain the delay or afford and excuse for the delay and there is no causal link between the circumstances and the delay.  I therefore do not agree to extend the time.

CA-00038671-001 

The complaint was received on 11/07/2020.  The cognisable time period therefore is from 12/01/2020 to 20/03/2020.

Based on the evidence I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €1,512 being the shortfall in wages for the cognisable period.

CA-00038671-004

Section 12 of the Act provides:

“12. – (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).”

Based on the Complainant’s evidence, I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €750 compensation.

CA-00038671-006

Based on the evidence of the Complainant, I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €750.

Decision:

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

Section 23 of the Industrial Relations (Amendment) Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

CA-00038671-001 

Based on the evidence I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €1,512 being the shortfall in wages for the cognisable period.

CA-00038671-004

Based on the Complainant’s evidence, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €750 compensation.

CA-00038671-006

Based on the evidence of the Complainant, I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €750 compensation.

Dated:   17-12-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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