Complainant

Respondent

Parties

Dan  Nechita

Fingal County Council

Representatives

Local Authority Management Agency

Act

Complaint 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-00065044-001

29/07/2024

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

CA-00065044-002

29/07/2024

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

CA-00065044-003

29/07/2024

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

CA-00065044-004

29/07/2024

The complainant gave evidence on oath.

In relation to Complaint CA-00065044-001 and arising from his public holiday entitlement, he submits that according to the roster, in respect of the time he worked between the hours 3:30 pm and 7:00am on March 16th, 2024 and March 17th, 2024, St Patrick’s Day and a public holiday, he got no additional benefits or entitlements for the seven hours which fell on the public holiday.

He raised this with his manager, but the matter was not resolved.

Complaint CA-00065044-002 refers to breaks and he says that since his employment began with Fingal County Council on July 16th, 2020, he has no received breaks at all.

Complaint CA-00065044-003 under the Payment of Wages Act shows that there is a disparity between the hours he works and those for which he is paid; they never match on his pay slip.

Complaint CA-00065044-004 relates to his submission that since being employed by the respondent on 16/07/2020 he has never received additional remuneration or benefits working for Sundays.

There are four complaints by the complainant as follows:

(i)           CA-00065044-001 Section 27 of the Organisation of Working Time Act, re public holiday entitlements

(ii)          CA-00065004-002 Section 27 of the Organisation of Working Time Act, re breaks

(iii)         CA-00065004-003 Section 6 of the Payment of Wages Act 1991, Deduction of wages

(iv)         CA-00065004-004 - Section 27 of the Organisation of Working Time Act, Compensation for working on a Sunday

The complaint was submitted to the WRC on July 29th,  2024 therefore the cognisable period is the six-month period from  January 30th,  2024 to  July 29th, 2024.

The complainant commenced employment as a Night Watchman on July 16th, 2020 and is paid at the first point on the Night Watchman Scale. His contract states that he will be paid as follows: Basic Pay: €451.72 per week, Travel Allowance: €57.91 per week, Eating on-site Allowance: €9.55 per week

This role is deployed on a three-week week rotating shift, and this is in section 6 of his contract. Over the three-week rota he works a total of 126 hours equating to a 42-hour week. (Details submitted).

The complainant queried his rate of pay, public holidays, and Sunday pay, and the Council responded to his queries. He submitted his complaint to the WRC on 29th July 2024.

1)     CA-00065044-001 public holiday entitlements

The complainant normally works on a three-week rota basis equating to an average of 42 hours per week over the three week period.  Section 21 (1) of the Organisation of Working Time Act 1997 applies to wholetime employees “provided that if the day on which the public holiday falls is a day on which the employee would…” normally work.

•             —(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

•       a paid day off on that day, a paid day off within a month of that day, an additional day of annual leave, an additional day's pay:

Within the cognisable period of the complaint there are 6 public holidays as follows with the complainant attendance noted in brackets.

Monday 5th February 2024 (Day off) 

Monday 18th March 2024 (Day off),

Friday 29th March 2024 (15.5 hours worked),

Monday 1st April 2024 (15.5 hours worked)

Monday 6th May 2024 (Day off)

Monday 3rd June 2024 (15.5 hours worked).

Therefore, he worked on only three of the public holidays during this period and on each of these he was paid double time as is confirmed by the pay slips submitted. This practice was explained previously to the union in a letter dated 18th April 2011.  (Copy of letter submitted).

There is no case to answer as the complainant received his lawful public holiday entitlement.

2)     CA-00065044-002 breaks

There are facilities on site to enable the complainant to avail of his breaks as provided for under the Organisation of Working Time Act. This practice was explained to him by his line manager when he commenced in the role. The Council is satisfied that it has complied with the legislation in this regard.

In respect of this complaint evidence was given on oath by Andrew Plant, the complainant’s foreman.

Although he was not the foreman at the time the complainant was appointed, he stated that there were there nightwatchmen under his supervision and he presumed that they had all been getting breaks as nothing to the contrary had ever been reported to him by either the complainant or any of the others.

He outlined the facilities for tea making etc. and pointed out that there is no activity on the site after 21.00 hours until 05.30 the next day.

3)     CA-00065044-003 Rate of Pay

a.        Section 5 of the Payment of Wages Act, 1991, details the elements in relation to any contravention by the employer and states:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a)  the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b)  the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)  in the case of a deduction, the employee has given his prior consent in writing to it.”

b.        Section 5(6) goes on to state that:

6. Where

(a)  the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b)  none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

In Dunnes Stores (Cornelscourt) v Lacey and Nuala O’Brien [2005] IEHC 417, unreported Finnegan P., the High Court found that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was ‘properly payable’ to the complainant.

The Council is satisfied that the complainant received all amounts “properly payable” to him. He was initially recruited on a 3 weekly roster averaging 42 hours per week contract and was paid accordingly for this. This is in accordance with the provisions of the Payment of Wages Act and no deduction or reduction arises in this instance.

His pay rates are outlined above.

The Council uses a time and attendance system which is common to all local authorities and has a standard configuration. From time to time there are roles put in place in a local authority which are not common to all others and therefore there is no mechanism with the system to insert a single pay scale. This is the situation with this role of Night Watchman.

An agreement was made with SIPTU that Nightwatchmen would be paid the General Operative (GO) rate. As the GO rate is higher than the Nightwatchmen, the equivalent number of hours of the GO rate equates to 39 hours. It is this figure of 39 hours which appears on the complainant’s pay slip and would appear to be the cause of the confusion. However, the actual weekly rate of pay that he receives is correct and in line with his employment contract.

The Council has reviewed his salary details which clearly show that since his appointment date he has been paid the correct weekly rate. The table provided shows that the weekly rate upon commencement was €451.72 per week in line with his contract of employment. He has also received his travel allowance and his meal allowance. Since he commenced employment, he has received 4 annual increments and there have been a number of pay increases which were also applied to his salary. His current weekly rate of pay is €617.40 which was effective from October 1st, 2024.

4)      CA-00065044-004 Sunday pay

Section 6 of the complainant’s employment contract includes a reference to his salary and the arrangement in terms of Sunday working where it states:

“Unlessotherwiseprovidedforbywayofcollectiveagreement,yourrateofpayhas been adjusted to take account of the fact that you may be required to work on Sundays during the course of the year.”

The Organisation of Working Time Act 1997 section 14(1) states:

“An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work…”

It is clear from the above that the Council has accounted for the complainant having to work Sundays and this has been taken into account in the determination of pay in accordance with the Act and so no further compensation is payable to the complainant. The complainant accepted this as can be seen from his signature on his employment contract.

It is also the case that following a Labour Court case (Trinity City Hotel V Kolkesnik & Alfirmova) that was appealed by the employer to the High Court, the High Court confirmed on 7th October 2019 that where a contract contains a clear statement that the hourly rate of pay takes into account the requirement to work on Sundays, there is no further obligation on employers to specifically set out the proportion of the hourly rate of pay which relates to Sunday working.

The Council would also reference DWT192 Urbanity Ltd T/A Urbanity Coffee v ZuzanaMilcochovaandADJ-00035162whichalsosupportthisposition.

The Council would therefore assert that there is no case to answer in relation to the current complaint where entitlements are provided in accordance with the Act.

I address each of the complaints in turn, having regard to the cognisable period which runs from January 30th, 2024, the complaint having been received on July 29th that year.

In respect of the complaint regarding public holidays the complainant has not made out a case.

The respondent submitted pay slips for the entire period covered by the complaint, and I accept its submission that the complainant was paid a premium in respect of those days on which he worked (Friday 29th March, Monday 1st April and Monday 3rd June 2024.)

The complainant did not take specific issue with this submission or contradict it. I also note that this was fully explained to the complainant in a letter from the respondent on April 18th, 2021, and rather than being further disputed at the level of the workplace, which is what should have happened initially at least, it ended up at the WRC.

Accordingly, this complaint is not well founded.

The position in relation to CA-00065044-002 regarding his breaks is less clear.

The complainant is a nightwatchman and therefore his role is obviously to ‘keep watch’.

His submission that there is never a moment in the course of his night shift, and at periods when there is little or no activity, when he can avert his eyes from the CCTV monitor is not entirely convincing.

Equally implausible is the possibility that an incident might occur in less time than the time it took to boil a kettle or visit the toilet, and that he therefore might miss it and become liable to some sanction or other.

Also lacking in credibility was his suggestion that he has never taken a break in the entire course of his employment with the respondent. Interestingly, the complainant is paid an “Eating on Site ‘ allowance of €9.55 per week into take account of the very difficulty he now raises. His acquiescence in this system is relevant to an assessment of this particular complaint. It is rather unlikely that he has never eaten on site.

But neither was the respondent’s position clear about what precisely a nightwatchman is told about his rights to breaks and what the implications might be in the somewhat unlikely event that at 2am he just happened to be having a break when an incident occurred.

The respondent witness, Mr Plant was not able to give evidence on this point, as he had not been the foreman at the time the complainant was appointed and the then foreman has now retired, although his evidence that neither the complainant nor any of his co-workers have never raised a grievance about this issue with their employer is of considerable significance.

However, it should be unequivocally clear that a worker is entitled to breaks even if this in in some way subject to the exigencies of his particular role, as in this case. There should not be the uncertainty about it exhibited by the respondent’s representatives at the hearing.

Nonetheless, while the respondent should take steps to bring greater clarity to the position the complainant’s assertions that he never gets a break are not credible and he has not made out a case to ground his complaint.

The submission of the respondent to the complaint regarding pay slips accurately sets out the position. (CA-00065044-003.)

There is an administrative device used to record the wages of a nightwatchman which reflect the fact that it is not a very large grade within the local authority system and the complainant did not ultimately dispute that he was on the correct rate of pay.

There was an issue about a half hour pay due to the complainant which the respondent undertook to investigate and did so subsequent to the hearing.

The Council subsequently wrote to the WRC on November 19th, 2024, acknowledging the error and accepting that in respect of the Public Holiday that fell on June 3rd 2024, the complainant had worked from 3:30 to midnight on that day (8.5 hours) and received his normal pay plus an additional 8 hours at double time. It committed to paying an additional half hour’s pay at double time to the complainant.

On the basis of this being an administrative oversight and the respondent’s undertaking to make the payment I make no award on that point.

In Complaint CA-00065044-004 the complainant alleges that he has never received additional remuneration or benefits for working on Sundays, on the basis that this is not explicitly clear on the pay slip.

The Council has responded above that this is incorporated in his pay and clearly referred to in his contract of employment, which he has signed and a copy of which was submitted in evidence and referred to above as follows.

Section 6 of the contract includes a reference to his salary and the arrangement for Sunday working as follows:

“Unlessotherwiseprovidedforbywayofcollectiveagreement,yourrateofpayhas been adjusted to take account of the fact that you may be required to work on Sundays during the course of the year.”

I find that this complies with the statutory requirement for a premium payment for working on a Sunday and also note the authorities submitted above, Trinity City Hotel V Kolkesnik & Alfirmova {2019] IEHC 654 and others.

This complaint is not well founded.

For the reasons set out none of the above complaints CA-00065044-001, 002, 003 and 004 are well founded.

For the reasons set out above Complaints CA-00065044-001, 002, 003 and 004 are not well founded

Working time, records, nightwatchman