ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002524

Complaints for Resolution:

Date of Adjudication Hearing: 18/05/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, and 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 was employed from 5^th October 2015 until the employment terminated on 1^st March 2016. The Complainant was paid €11.00 an hour and she worked 38.7 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 22^nd March 2016 alleging the Respondent had breached The Payment of Wages Act in relation to payment of wages, had breached Section 3 of the Terms of Employment (Information) Act and had breached the Organisation of Working Time Act in relation to annual leave and Public Holidays. By email dated 5^th April 2016 the complaint under the Payment of Wages Act, 1991 – 2015 was withdrawn by the Complainant.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994 – 2015. The Complainant stated that she had not been provided with a written statement of her Terms and Conditions of Employment contrary to Section 3 of the Act.

Organisation of Working Time Act, 197 – 2015. The Complainant stated that she had worked a total of 770 hours during the course of her employment and she is claiming payment of 8.33 days annual leave.

The Complainant also stated that she had worked on the 26^th October 2015, a Public Holiday but was only paid a normal days pay. She also stated that she had worked on the following Public Holiday St Stephens Day 2015 and again only received a normal day’s pay. She stated the she did not work on 1^st January 2016 but was paid a day in lieu.

Summary of Respondent’s Position.

The Respondent did not attend.

Findings.

Organisation of Working Time Act, 1997 – 2015.

Section 23. On the uncontested evidence of the Complainant I find as follows: - The Complainant provided evidence that she had worked a total of 770 hours during the course of her employment. She did not receive payment in lieu of annual leave on termination of her employment. Section 23 of the Act provides as follows:

(1)    Where – (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall as compensation for the loss of that annual leave, be paid by his or her employer, an amount equal to the pay, calculated at the normal weekly rate………”

I find that the Complainant worked a total of 770 hours x 8% = 61.6 hours annual leave due in accordance with Section 23 of the Act x €11.00 an hour = €677.60.

Section 21. This Section provides that an employee is entitled to – (a) a paid day off on that day (b) a paid day off within a month of that date (c) an additional da of annual leave (d) an additional day’s pay.

The Complainant states that she worked two Public Holidays but was only paid a normal days pay. I find that the Complainant is entitled to payment of 2 days wages = 16 hours x €11.00 an hour = €176.00

Terms of Employment (Information) Act, 1994 – 2015.

On the uncontested evidence of the Complainant I find that the Respondent has breached Section 3 of the Act, which provides that an employer shall provide an employee with the written statement of Terms and Conditions of Employment within 2 months of the commencement of the employment.

Decision.

Section 41(5) 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.

I declare the complaint under the Terms of Employment (Information) Act, 1994 – 2015 is well founded. I direct the Respondent to pay the Complainant compensation of €500.00 within 42 days of the date of this Decision. For the avoidance of doubt this amount is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions

I declare the complaint under the Organisation of Working Time Act, 1997 – 2015 is well founded. I Direct the Respondent to pay the Complainant the following –

€677.60 in respect of annual leave due and not paid on termination of the employment

€176.00 in respect of two Public Holidays

€500.00 compensation for breaches of Section 21 and Section 23 of the Organisation of Working Time Act. For the avoidance of doubt this amount in compensation is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions.

Rosaleen Glackin

Adjudication Officer

Date:__12^th August 2016