ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048908

Parties:

Complaints:

Date of Adjudication Hearing:  02/07/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act 1997, and Section 7 of the Terms of Employment (Information) Act 1994, 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 submitted complaints that he was not compensated for Sunday working, did not receive overtime premium payments.  He further claims that his contract of employment was not amended when he became a Team Manager. 

Summary of Complainant’s Case:

The Complainant submitted that he was employed by the Respondent on 20 July 2009.  He originally was paid for overtime and had premium pay.  He changed role a number of times.  In 2012 he asked for an updated contract and this was refused.  In 2017 he moved to another role on a temporary basis and in 2019 he moved again.  In 2020 he was given a role of Team Leader/Manager.  In 2023 he requested an updated contract and nothing was done about this for a period of 3 months. 

After he made a complaint, the Respondent reviewed his situation and gave him compensation for Sunday working but only for a limited period.  He argued that this was not enough and that the time period was for 6 months from March to September but this should be at least from November 2022 and possibly back for a period of 3 years.  He also stated that the Respondent was not keeping proper time records for employees.   

Summary of Respondent’s Case:

The correct name of the Respondent is Apple Distribution International Limited. The Respondent consents to the title of the proceedings being amended to reflect the correct legal name of the Respondent.

The Complainant commenced employment with the Respondent on the 20th July 2009 as a Technical Support Agent. He was employed initially on a fixed-term contract for the period of three months. He thereafter accepted a permanent position as a Technical Support Agent with effect from the 17th November 2009. The Complainant is currently employed with the Respondent as a Product Support Team Manager.

The Respondent submits that the cognisable period for consideration of the Complainant’s complaint under Section 27 of the Organisation of Working Time Act, 1997 is 15th May 2023 to 15th November 2023 being the six-month period immediately preceding the alleged contravention of the Act and submission of the Complainant’s Complaint Form to the Workplace Relations Commission.

In this regard, Section 27(4) of the Organisation of Working Time Acts 1997 reads as follows:

27(4) a Rights Commissioner shall not entertain a complaint under this Section if it is presented to the Commissioner after the expiration of six months beginning on the date of the contravention to which the complaint relates.

The Complainant submitted a written complaint to Apple’s Employee Relations and People Team on the 27th June 2023. In this complaint, the Complainant (and others) claim the Team Manager position requires work on Sundays yet there is no mention in their Contract of Employment of a daily allowance, increased hourly rate or time off in lieu for working Sundays. The Complaint further asserts Sunday premium is applied for Advisors roles but not for Team Manager roles. The Complainant raised a further complaint during the grievance investigation process that time cards for Team Managers are being automatically generated and that hours worked are not reported properly as the time cards show standard hours for Monday to Friday work.

A grievance investigation report was issued on the 6th November 2023 by the HR Manager wherein she states that the Complainant’s grievance with regard to compensation for Sunday work is partially upheld. She acknowledged that Sunday pay is not adequately dealt with in the Contract of Employment and recommended that this be rectified moving forward. She did not uphold the element of the grievance whereby the Complainant alleged there was an infringement on his employee rights and entitlements. This was due to the fact that historically within the Respondent company Manager’s salaries, which are higher than Advisors, take into account Sunday work, albeit not explicitly stated in their Contracts. Finally, she found with regard to the Complainant’s grievance on editing his own time card, that the Complainant was fully informed that he could amend his own time card to ensure accurate records of his working time were kept as required.

The Complainant submitted an Appeal of the grievance findings issued on 10th November 2023. The Complainant’s Appeal concerned the following two points (1) Sunday premium application; and (2) Time keeping regulations.

The Employee Relations Leader of the Respondent conducted the Appeal. The Complainant’s Appeal in relation to Sunday pay was upheld. The Complainant’s Appeal in relation to time record keeping was not upheld.

The appeal outcome letter recommended the following: “That a Sunday premium should be applied to any Sundays worked by Rachid in the 12 months prior to the 1st March 2024. For Rachid this means that a Sunday premium will be applied to hours worked on the following Sundays: 19/03/2023, 30/04/2023, 04/06/2023, 02/07/2023 and 03/09/2023.”

Additionally, the Respondent afforded the Complainant the opportunity to raise any concerns with the Sundays worked. The outcome letter states the following: “Should Rachid believe that there is an error in the above records of the Sundays that he worked during the last 12 months, he should raise this with me as a matter of urgency.”

It was also recommended that the Complainant be paid a Sunday premium of an additional 33% of normal pay for any Sundays worked moving forward.

The Complainant’s personnel file was reviewed and it was noted that while there was a Contract on file for the employee detailing his Terms and Conditions of employment, for when he commenced employment with the Respondent, there was no record of the employer receiving a written update of his Terms and Conditions of Employment when he was appointed as a Team Manager.

The Respondent confirms that the Complainant has now been issued with an updated Contract of Employment wherein it states: “where you are required to work on a Sunday, you will receive an additional premium payable at the rate of 33% of your normal rate of pay less usual payroll deductions. The role of manager is not eligible for overtime pay.”

Findings and Conclusions:

CA-00060021-001            Organisation of Working Time Act 1997

The claim here is for Sunday premium and overtime working.

Section 14 of the Act provides:

14.—(1) 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 by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

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”.

This complaint was received on 15 November 2023.  The cognisable time is from 15 May 2023 unless as provided for in Section 41 (8), the complaint refers to the period from 15 November 2022 and the failure to present the complaint within the period was due to reasonable cause.

The Complainant argued that going back to March 2023 is not enough and that the time period should be extended back to November 2022.

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 that in March 2024, the Respondent upheld the Complainant’s grievance in respect of Sunday working and compensated him for Sundays worked dated back to 12 months and effectively probably given the dates worked, he was paid for Sundays worked from March to September 2023.  I have not been presented with a clear reason from the Complainant to extend the time period except to say ‘going back to March 2023 is not enough’.   I do not find that the Complainant has demonstrated reasonable cause which prevented him from presenting his complaint within the period.

Having found that the cognisable period for the complaint is from 15 May 2023, I note that the Complainant has been compensated for Sunday working from March 2023 and I find his complaint to be not well founded.

In relation to overtime, there is no obligation for an employer to pay overtime enshrined in the Organisation of Working Time Act 1997.  This complaint is not well founded.

CA-00060021-002            Terms of Employment (Information) Act 1994

The complaint here is that the Complainant’s terms of employment were changed and he was not notified.

Section 5 of the Act provides:

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of

the particulars of the statement furnished by an employer under section 3, 4 or 6,

the employer shall notify the employee in writing of the nature and date of the change

as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work

outside the State for a period of more than 1 month, the time of the

employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of

statutes or instruments made under statute other than a registered employment

agreement or employment regulation order, or of any other laws or of any

administrative provisions or collective agreements referred to in the statement given

under section 3 or 4.

It is common case that the Complainant’s written contract of employment was not updated when he became a Team Manager.   This has now been rectified.

Section 7 (2) of the Act provides that a decision shall make any or a number of directions namely, declare that the complaint is or is not well founded and require the employer to furnish a statement and/or make an order for compensation not exceeding 4 weeks remuneration.

In accordance with Section 7, I declare the complaint to be well founded.  I note the Respondent has furnished the Complainant with revised written terms of employment.  I make no further directions in the matter.

CA-00060021-003            S.I. 36/2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

Regulation clause 3 provides:

These regulations apply to –

• (a) Mobile workers who are employed by or who do work for one or more undertakings established in a Member State, and
• (b) Self-employed drivers,

participating in road transport activities to which either the Council Regulation or the AETR applies.

The Complainant is a Technical Support Manager. As clearly stated above, the Regulations apply to mobile workers and self-employed drivers.   This complaint is misconceived, is not covered by the Regulations and is not well founded.

CA-00060021-005            Terms of Employment (Information) Act 1994

In this complaint the Complainant states that the Employer has not provided him with a reasoned reply to his request for more secure and predictable working conditions.

This arises from the European Union (Transparent & Predictable Working Conditions Regulations 2022.  The Regulations are designed to protect vulnerable workers who have little or no security of working conditions.  In this instant case, the Complainant has a number of complaints against his employer which he contends were not properly dealt with in a timely manner.  He had many complaints including Sunday working, overtime and written terms of employment.  The Complainant has not specifically made a request to the Respondent for more secure and predictable working conditions.  I find his complaint to be not well founded.

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.

CA-00060021-001            Organisation of Working Time Act 1997

Based on the reasons cited above, I have decided that the complaint is not well founded.

CA-00060021-002            Terms of Employment (Information) Act 1994

Based on the reasons cited above, I have decided that the complaint is well founded.  I note the Respondent has furnished the Complainant with revised written terms of employment.  I make no further directions in the matter.

CA-00060021-003            S.I. 36/2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

Based on the reasons cited above, I have decided that the complaint is misconceived, is not covered by the Regulations and is not well founded.

CA-00060021-005            Terms of Employment (Information) Act 1994

Based on the reasons cited above, I have decided that the complaint is not well founded.

Dated:   16th of September 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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