ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048015
Parties:
| Complainant | Respondent |
Parties | Marek Dudko | Hobartstown Limited Kleentech Sintetic Finishes |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives |
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Complaint(s):
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-00058838-001 | 14/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022 | CA-00058838-002 | 14/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act, 1994. | CA-00058838-003 | 14/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058838-007 | 14/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058838-008 | 14/09/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00058838-012 | 14/09/2023 |
Date of Adjudication Hearing: 27/06/2024
Workplace Relations Commission Adjudication Officer: Roger McGrath
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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021, the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.
The matter was heard by way of remote hearings on 21 March 2024 and 27 June 2024, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
At the first hearing of 21 March 2024, three complaints were dealt with, however, the Complainant stated that he had submitted additional complaints to the WRC which he believed should be dealt with by me. Thereafter, having considered the Complaint’s submission and having reviewed the correspondence submitted to the WRC, I decided that the Complainant’s proposition had merit. He had presented (albeit not on a WRC Complaint Form) an additional three claims that deserved investigation. These three additional complaints were dealt with at a remote hearing which took place on 27 June 2024.
Background:
The Complainant commenced employment with the Respondent on 3 March 2020. His employment ended on 20 November 2023. He was paid a gross rate of €18 per hour.
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CA-00058838-001 Complaint under the Organisation of Working Time Act,1997.
Summary of Complainant’s Case:
The Complainant submits that he did not get paid compensation for working on a Sunday. The Complainant gave evidence on Affirmation at the hearing. The Complainant stated that he never got an extra payment for working on Sundays. However, in answer to questions, he explained that in 2022 he had negotiated that he should get paid an extra four hours pay for working on Sundays. This meant that if he worked 12 hours on a Sunday he would get paid 12 x €18 (the hourly rate) plus 4 x €18, but this was from 2022 on only. A witness for the Complainant, a Mr Wrobel gave evidence on oath at the hearing. He stated that he for the Respondent for two years, during which time he estimated he worked some 70 Sundays. He said he was never paid extra for working on Sundays. Two other witnesses gave evidence on behalf of the Complainant. Both these witnesses stated that they had not been paid extra for Sunday work.
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Summary of Respondent’s Case:
A Mr Trevor Webster, a senior manager, gave evidence on afirmation for the Respondent. Mr Webster stated that he had a record of every hour the Complainant worked and that he was paid a 36% premium for working on Sundays. The Respondent provided documentary evidence to support this case.
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Findings and Conclusions:
From the Complainant’s own evidence, it is clear that he was paid a Sunday premium in the cognisable period. The Respondent’s evidence, oral and documentary backs this up.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded.
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CA-00058838-002 Complaint under the Sick Leave Act, 2022.
Summary of Complainant’s Case:
The Complainant submits that his employer did not pay him sick leave. He was out sick for a total of six months from when he first started working for the Respondent and he did not receive any payment from the Respondent his periods of sick leave. In his evidence the Complainant stated that at the end of his employment he was paid all outstanding holiday pay.
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Summary of Respondent’s Case:
Mr Webster stated that the Complainant was paid everything he was due.
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Findings and Conclusions:
The Complainant has accepted that he received all outstanding holiday pay due to him.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded.
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CA-00058838-003 Complaint under the Terms of Employment (Information) Act, 1994.
Summary of Complainant’s Case:
The Complainant submits that his employer did not provide training to him free of cost in contravention of this Act or this training was not counted as working time which should have taken place during working hours. The Complainant submits that the Respondent did not pay him for Safe Pass training as they are required to by law. In his evidence the Complainant stated that when he joined the company in 2020, he was told where he could go to get his Safe Pass training, which took 8-10 hours. He was not paid for these hours.
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Summary of Respondent’s Case:
The Respondent stated that when the Complainant joined the company in March 2020, his Safe Pass training and the transport to and from Dublin, where the training took place, was paid for by the company. The costs of this to the company outweighed the hours involved. As the company were doing it for the Complainant’s benefit, he was not paid for the time involved.
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Findings and Conclusions:
This complaint relates to an alleged underpayment dating back to March 2020. This is outside the cognisable period.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I do not have jurisdiction to hear this complaint. |
CA-00058838-007 Complaint under the Organisation of Working Time Act, 1997.
Summary of Complainant’s Case:
The Complainant submits that he did not get a daily rest period. The Complainant submitted that sometimes he worked 16 hours a day, for example he would start work at 8 am and finish work at 11 pm and the next day he would start work again at 8 am or 9 am, even though on his timesheet it says that he was entitled to 11 consecutive hours of rest each day; this was not observed in a lot of cases. In his evidence the Complainant went through several examples when he did not get his daily rest period. One example indicated that he had worked from 7.30 am to 10.30 pm one day and started at 7.30 am the following day, therefore not getting 11 hours rest as entitled. The Complainant stated that it was often the practice to work 90-100 hours per week and many times the 11-hour rest period was not respected.
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Summary of Respondent’s Case:
Mr Webster stated that the company organises working hours in line with statutory requirements. The company relies heavily on the trackers in their vans to record hours for the time sheets. The examples given by the Complainant related to times when the work team were staying at the location and therefore the van trackers were not used. In such a case the company relies on the worker to give the hours he has worked. The complainant submitted these hours, and he was paid for them. The Respondent does not accept the hours [scenarios] presented by the Complainant are valid. In response to a question, the Respondent stated that the Complainant had been paid for the hours he had used in his examples. When asked why they would pay him for hours they say he did not work, the Respondent stated that these were isolated incidents and not normal.
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Findings and Conclusions:
Section 25 of the 1997 Act states: “25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.” Section 11 of the 1997 Act states: “11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.” From the evidence adduced it is hard to get a clear picture of how long days were dealt with by the Respondent. It appears there were some occasions when the requirements of the Act relating to daily breaks were transgressed. It is the Respondent’s obligation to keep the records stipulated by the Act and these seem to be absent in this case. I find breaches of the Act did take place. I find that an award of €1,000 to the Complainant is just and equitable for these breaches of the Act.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I direct the Respondent to pay the Complainant €1,000. |
CA-00058838-008 Complaint under the Organisation of Working Time Act,1997.
Summary of Complainant’s Case:
The Complainant submits that he did not get his weekly rest period. In evidence the Complainant stated that he worked many hours per day and per week. The Complainant did not particularise the hours but submitted that there were often weeks when he worked 90-110 hours a week.
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Summary of Respondent’s Case:
The Respondent stated that the company complies with the Act. A lot of the employees are from Poland and they build up hours so they can take longer breaks abroad. These breaks are always granted and the Complainant had been granted 6 weeks’ leave in the not too distant past. While hours are accumulated over the year, they would not be excessive. In response to a question the witness stated that employees could work 60 hours in a week, that employees “demand” to work 60 hours in a week. The Complainant would have been demanding to work 60 hours.
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Findings and Conclusions:
Section 25 of the 1997 Act states: “25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.” Section 13 of the Act states: “13.—(1) In this section “daily rest period” means a rest period referred to in section 11. (2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period. (3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)— (a) if the rest periods so granted are consecutive, the time at which the first of those periods commences shall be such that that period is immediately preceded by a daily rest period, and (b) if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period. (4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.” From the evidence adduced it is clear the Complainant did not get his weekly rest periods as he should have per the Act.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I direct the Respondent to pay the Complainant €1,000.
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CA-00058838-012 Complaint under the Organisation of Working Time Act, 1997.
Summary of Complainant’s Case:
The Complainant submits that he worked more than the maximum permitted hours. He submitted that there was a lack of a clear schedule. He did not know from one week to another what hours he would be required to work. In evidence the Complainant stated that this lack of clarity negatively impacted on his family life.
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Summary of Respondent’s Case:
In evidence Mr Webster stated that there was a system in place regarding the allocation of tasks. The witness stated that 9 pm was the latest he would text someone about where they would be working the next day. There were always exceptions and he might have to make a change. The Complainant usually worked for six weeks on and two weeks off. The start time was regular; 8.00am to 6.00 pm. Mr Webster stated that due to the nature of the business flexibility was required. There were times when work started earlier or later. The workers were not treated as they were robots.
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Findings and Conclusions:
Section 15 of the 1997 Act states: “15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed— (a) 4 months, or (b) 6 months— (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.” From the evidence of both the Complainant and the Respondent it is clear the hours worked by the Complainant on a weekly basis varied, depending on the job requirements. In the absence of accurate records of the hours worked, I accept the Complainant’s position that there were times when the hours he worked some weeks exceeded the hours permitted by the 1977 Act. There was no reference to any collective agreement. I find breaches of the Act did take place. I find that an award of €1,000 to the Complainant is just and equitable for these breaches of the Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is well founded, and I direct the Respondent to pay the Complainant €1,000. |
Dated: 9th September 2024
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Records, hours of work, Sunday Premium |