Case Number: ADJ-00012481. Workplace Relations Commission

• Docket Number: ADJ-00012481
• Hearing Date: 05 June 2018
• Date: 25 October 2018
• Court: Workplace Relations Commission
• Parties: A stage-hand Vs. A concert venue
• Respondent: A concert venue

ADJUDICATION OFFICER DECISION Adjudication Reference: ADJ-00012481 Parties:

	Complainant	Respondent
Anonymised Parties	A stage-hand	A concert venue

Representatives Ray Ryan BL Ciaran Loughran, IBEC

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001	CA-00016404-001	19/12/2017

Date of Adjudication Hearing: 05/06/2018

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, this complaint was assignedto me by the Director General. I conducted a hearing on June 5th 2018, and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.

At the hearing, the complainant was represented by Mr Ray Ryan BL, instructed by Ms Órla Clarke of O’Connell and Clarke Solicitors. The respondent was represented by Mr Ciarán Loughran of IBEC and he was accompanied by the respondent’s head of personnel, the complainant’s line manager and the house manager.

This complaint was submitted on December 19th 2017 and a hearing was arranged initially for February 28th 2018. This was postponed and arrangements were then made for a hearing on April 5th. At the request of the complainant’s solicitor, Ms Clarke, this was adjourned. In the course of the correspondence on the adjournment, Ms Clarke wrote to say that she filed a new complaint of penalisation, under section 15 of the Protection of Employees (Part-time Work) Act 2001. She said that she thought that this had been submitted on February 22nd, and when she discovered that it had not been received by the WRC, it was submitted on March 8th 2018, under ADJ-00013613. While both complaints were heard at one sitting, two separate decisions have been issued under ADJ-00012481 and ADJ-00013613.

Background:

The respondent organisation is a concert venue that hosts around 1,000 events each year and the complainant has been employed there on a part-time, casual basis since 2011 as part of the back-stage crew. His complaint is that his rate of pay does not reflect his service and experience and he has not been given the opportunity to attend professional training. On this basis, he argues that he is treated less favourably than full-time employees.

Summary of Complainant’s Case:

The complainant works with the back-stage crew, five of whom are part-time casual employees. He works an average of 26.5 hours per week and earns €12.94 per hour, resulting in an average weekly income of €352.62 gross. At the hearing, the complainant outlined the responsibilities of his role, which involve setting up the stage for performances and looking after the requirements of performers on concert days. He also said that he sets up meeting rooms and IT equipment and does a small bit of lighting. He said that he generally works five days a week, although, in accordance with his contract, he can work the days that suit him. He said that he never refuses work, as this would have an effect on his entitlement to social welfare, which he claims for the days he is not working. In the booklet of documents produced in evidence, there is a copy of an e mail that the complainant sent to his manager on May 30th 2017. In the mail he requested clarification about his rate of pay. He said: “I have recently been made aware that I am being paid a different rate of pay to that of my full-time colleagues. I understand that I am employed on a zero hour contract, but this should not detract from the fact that I fulfil the same duties as full-time members of the back-stage staff. “If this is the case, I would like to formally request that I am moved to the equivalent pay grade as my full-time colleagues in the back-stage department.” On June 7th, the operations and HR manager replied: “Your contract stated that you are employed on a part-time / casual basis and your appointment is part-time. You therefore work irregular, variable hours, which you confirmed in your recent request regarding how your holiday pay is treated. “As a part-time casual you have the right to refuse work. Contrary to what you state below, this right therefore means that you are not employed on a zero hour’s contract as such a contract would not permit you to refuse work. “There is no scale for employees on casual contracts who can refuse work. There are no full-time comparators in the (respondent company) who can refuse shifts or work irregular hours and therefore, for this reason, your request to be placed on an equivalent pay grade to full-time workers cannot be granted.” In support of his complaint that he is treated less favourably because he is a part-time casual worker, the complainant named a full-time member of the back-stage team as his comparator. This person is employed on a full-time, permanent contract and is entitled to a public service pension and sick pay. Following receipt of the e mail above, the complainant contacted his SIPTU representative and a meeting took place on October 10th 2017. Nothing changed as a result of this intervention and on December 19th, he submitted a complaint to the WRC. In respect of the complainant’s grievance about not being permitted to attend professional training programmes, he referred to the first aid training which was only scheduled for full-time employees. In support of the complainant’s case, Mr Ryan referred to the Labour Court determination in Dundalk Town Council and David Teather, PTD 113. Mr Teather was a retained fire-fighter with Dundalk Town Council and he argued that he should be permitted to act up in the role of Officer in Charge instead of a less senior full-time fire-fighter. The Labour Court determined in his favour. Referring to the issue of what is written in a contract, compared to what happens “on the ground,” Mr Ryan said that the complainant never refused work, so there is no merit in using this “entitlement” as a part-time worker to differentiate him from the full-time worker. He referred to the case of Autoclenz Limited v Belcher and Others, [2010] IRLR 70.,...