Case Number: ADJ-00031184. Workplace Relations Commission

• Docket Number: ADJ-00031184
• Hearing Date: 11 June 2021
• Date: 07 September 2021
• Court: Workplace Relations Commission
• Respondent: The Irish Wheelchair Association

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00031184

Parties:

	Complainant	Respondent
Parties	Nathalie Ouvrard	The Irish Wheelchair Association

Representatives N/A Cathal McGreal BL instructed by Anne Nagle Doyle Solicitors

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-00040955-001	12/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00040955-002	12/11/2020

Date of Adjudication Hearing: 11/06/2021

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

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.

On 11 June 2021, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

While CA-00040955-002 was not specifically referred to in the correspondence provided to the parties before the hearing, it was clear from the complaint form completed by the Complainant that there was a Payment of Wages claim for me to consider. Given that the Respondent did not object to this being heard in conjunction with the Organisation of Working Time Act complaint, I have included this complaint in my decision.

As the facts were identical to those in ADJ-00028807, the complaints were heard as part of the same hearing.

I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties agreed to proceed in the knowledge that decisions issuing from the WRC will disclose the parties’ identities.

As there was no direct conflict of evidence likely to arise and therefore no need to take sworn evidence, the hearing proceeded.

Background:

The Complainant is employed as a Programme Assistant with the Respondent and is paid a basic rate of €15.13 per hour. She stated that the Respondent began rostering her for 21 hours per month over her 36.9 average working week when she started her new role in 2017 and that she was not paid for these additional hours. She also stated that she is paid a Sunday premium for the hours that she worked on a Sunday from 8 am until midnight but does not receive any premium payments for the hours from midnight to 8am.

Summary of Complainant’s Case:

She stated that the Respondent began rostering her for 21 hours per month over her 39 average working week when she began her new role in 2017 and that she was not paid for these. Specifically, as she did 7 night shifts in every 4 weeks and she was only paid for 5 out of every eight hours that she worked between midnight and 8 am, there was a shortfall of her pay in the amount of €317.73 per month. She stated that at a number of meetings in February and March 2020, both she and her colleagues were informed that there were going to have to be changes made to the hours they worked and how they were paid as a result of the Labour Court Recommendation (Health Service Executive & IMPACT, SIPTU and UNITE) LCR 20837. She claimed that she was informed that these changes had not been applied in the immediate aftermath of the Labour Court Recommendation because, unlike other colleagues in the organization, she was on a salary and was not hourly paid, which she disputes. These proposed changes comprised of an intention on behalf of the Respondent to change her contract to reflect that she now worked 44/45 hours per week and only pay her the minimum wage for all hours worked between midnight and 8am. The Complainant objected to these changes and became aware from these meetings that she should always have been paid for every hour that she was available on the shift even though she may have been sleeping. She also stated that when she queried about why she was in receipt of a Sunday premium for the hours that she worked on a Sunday from 8 am until midnight but did not receive any such payments for the hours from midnight to 8am, she was informed that the Respondent only paid premium rates for the hours she worked during those shifts and not for the hours she was asleep.

Summary of Respondent’s Case:

The Respondent’s representative opened the Labour Court Recommendation (Health Service Executive & IMPACT, SIPTU and UNITE) LCR 20837 to me, stated that the Respondent had adhered fully to the provisions of this recommendation and did not consider that there were any payments due to the Complainant.

Findings and Conclusions:

I note in the first instance the decisions of the Court of Justice of the European Union (formally the ECJ) which held that for the purpose of Directive 93/104/EC on the Organisation of Working Time (now Directive 2003/88/EC) time spent by workers at their place of work during which they remain liable to be called upon to perform the duties of their employment is to be regarded as working time. The Directive is transposed in Ireland by the Organisation of Working Time Act 1997. While the Respondent has highlighted the provisions of LCR 20837, wherein it is recommended that “staff should be paid an hourly rate of in respect of each hour spent on sleepover in excess of 39 hours equal to...