Case Number: ADJ-00021258. Workplace Relations Commission

• Docket Number: ADJ-00021258
• Date: 11 September 2019
• Court: Workplace Relations Commission
• Parties: An Employee v A Limited Company

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.

Summary of Complainant’s Case:

The complainant is a Dispatcher, and as such is responsible for receiving requests for service and dispatching an ambulance to carry out the assignment. The complainant is based in the Respondent’s Company office in XXX, Dublin. CA 00028062 -001 (Organisation of Working Time) The complainant states that he has not received a Sunday payment, or it is not clear when or if he receives it, when he works his rostered Sunday. He works a Sunday approximately 10 times annually. The complainant first raised this issue with the Respondent in or around November, 2016. The complainant is not happy with the response he has received from the Respondent and has been forced to bring this claim to seek clarity on the point. CA 00028062 -002 (Payment of Wages) Over the weekend the complainant works at the respondent premises, taking calls from 9am to 7pm. From 7pm to 10pm, on a Saturday and Sunday, he is required to be available to take calls should the ambulance personnel not be available to do so. He is required to carry a ‘second point of contact’ phone and be available to answer same, deal with any requests that are made and dispatch an ambulance when required. He is not paid for those three hours. CA-00028062-003 (Terms of Employment) The complainant states that there has been a fundamental change to the terms of his contract with the respondent. Originally, he was paid per shift. Now, since the change, he is paid depending on the hours worked. He was not given notice in writing or otherwise of the change to the terms and conditions of employment.

Summary of Respondent’s Case:

The claimant had been employed as a Dispatcher since September 2016. As a Dispatcher the claimant is responsible for receiving requests for service and dispatching an ambulance to carry out the assignment. The claimant is based in the Company’s office in XXX Dublin. In January 2019 the Company, after reviewing the Terms and Conditions of employment and conducting a survey amongst employees, decided to make a number of changes to their payroll systems, including the bringing the payroll system in house where it was previously managed by an outsource payroll company and also making changes to the method of how salaries are calculated, moving from a monthly salary basis to a per shift basis. The purpose of these changes was to take into account the need to streamline and make payments more accurate in reflecting the work done by individuals and secondly to assist in the changes being required by Revenue in terms of payments being moved to a “live” monthly basis. It had been the company’s intention, in the first instance, that it would deal with non-salary personnel, which excluded the Dispatch staff, and applied a 4% increase to the other staff. However, when implementing the changes, it was discovered that the salary increases of 4% had been mistakenly applied to all staff, including the salaried staff. When discovering this mistake, rather than the company recouping the overpaid money from employees it was decided to apply the 4% increase to the salaried staff as well. In addition, this was also backdated to the 1st January, even though it had never been intended to apply it to them in the first place. The claimant was not happy with the changes being made and wrote to the company raising a number of queries which is now encapsulated into his claims before you today. CA-00028062-001 The claimant is maintaining that he has not received a Sunday payment when he works his rostered Sunday, which happens approximately once every 5 weeks. In this regard the claimant maintains that he first raised this when he received his first payslip in November 2016, and at that time was advised that the Sunday premium formed part of his normal pay. In this regard, in referring to terms and conditions of employment which have been signed by the claimant under the statement of hours of work, the conditions of employment state that employment is based on a working week from Monday to Sunday inclusive. In relation to pay it was identified under the heading “Salary”, that the claimant is a member of the salary personnel and that his payment is made once a month. Company Position The claimant maintains that he has not been paid his Sunday premium in accordance with the provisions of the Organisation of Working Time Act. However, the company would draw the chairperson’s attention to the fact that the claimant has confirmed that he was a salaried employee, which meant he received the same monthly payment whether the month included a Sunday or not, and also that when he specifically raised a query in relation to a Sunday premium in 2016, he was advised, at that time, the premium was incorporated into his salary. The company contend that had the claimant a difficulty with that guidance at that time the company had appropriate procedures which the claimant could have followed to address any concerns he may have had in this matter. Furthermore, the claimant has continued to accept payment from the company in the full knowledge that his salary was paid to him based on a working roster which covers Monday through to Sunday working. The company contend that, in this particular matter, the claimant has been paid a Sunday premium and that he was fully aware of this Sunday premium, therefore he had been put on notice of this fact. The company would go further and argue that the claimant cannot now deny that he was fully aware that his rate of pay incorporated his Sunday premium and therefore to make a claim in 2019, 2 years later, after being advised of this matter is not a valid claim at this stage. CA-00028062-002 The company understands that this claim appears to relate to weekends when the claimant carries a contact phone for 3 hours, during which time there is a change in shift personnel. At weekends, when the claimant is on duty from 9am to 7pm, on the company’s premises, he is the first point of contact for any calls that may come in. After the claimant’s shift ends, at 7pm, the first point of contact phone is carried by the ambulance personnel who remain on duty up until 10pm. At this time the night shift takes over and carry the first point of contact phone. During the period 7pm and 10pm at the weekend, the claimant would have, in his possession, a second point of contact phone, which would only be activated when the first point of contact person is unavailable. This is part of normal practice for all dispatchers and is regarded as part of their normal duties. The claimant would appear to be maintaining that other personnel, who may be brought in to work early to provide cover on occasion are paid overtime for providing this cover. It should be noted that any payment made to personnel for the period 7pm to 10pm, at weekends, are personnel who are brought in to the company premises and are actually involved in working time. However, it would appear that the claimant seems to be making a request that he should be paid overtime even though he is not actually rostered to attend on site at this time. Company Position The claimant has referred to payments being made to other personnel. As the Chairperson would be aware, under the Payment of Wages Act, the wages are referred to as payments which a person is “properly entitled” to receive payment for. In this case the claimant would appear to be arguing that he should be paid throughout at overtime rates albeit that he is not assigned to the workplace nor carrying out the full Dispatcher duties for the duration of this time. The company contend that the claimant has been paid all wages to which he is properly entitled and therefore has no basis for claiming payments for time on a Sunday evening when the claimant is not at work at that time. ...