ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002753

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 19/09/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or the Terms of Employment (Information) Act, 1994 and or the Minimum Notice & Terms of Employment Act, 1973 and or the Organisation of Working Time Act, 1997 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The Complainant commenced employment on a part time basis on the 7th December 2015 to cover the temporary position arising from the maternity leave of a fellow employee, A Ms.VB.

The Complainant’s employment terminated on the return to work of Ms.VB at the end of February 2016.

The Complainant was provided with one week’s verbal notice of the end of her contract.

The Respondent acknowledges a technical breach of legislation in relation to not providing a written contract to the Complainant and accepts that an oversight may have arisen in relation to the non payment of holiday pay. This will be corrected a soon a full details are to hand.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and or the Terms of Employment (Information) Act, 1994 and or the Minimum Notice & Terms of Employment Act, 1973 and or the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

Issues for Decision:

Did breaches of the cited Acts take place?

Legislation involved and requirements of legislation:

Workplace Relations Act, 2015 and or the Terms of Employment (Information) Act, 1994 and or the Minimum Notice & Terms of Employment Act, 1973 and or the Organisation of Working Time Act, 1997

Decision: In Complaint Order

The Respondent accepted that a breach of the terms of the Act took place.

I award, in view of the short length of the employment and the clear oral contract, an award of one half weeks pay as Compensation to the Complainant.

As the weeks pay appeared to average approximately €150 so the award equals a payment of € 75.

This was the Sunday premium pay complaint. Leaving aside a considerable dispute between the parties as to the actual number of Sundays worked the Complainant had accepted verbally a standard rate of pay , the minimum wage, for all hours ( including Sundays) she worked during the week. During the hearing it was stated that the rates were €7:00 nett cash for a weekday shift, €7:00 nett cash for a Sunday shift and €8:00 nett cash for a Night shift. This had formed part of the verbal contract. This was not contested.

Section 14(1) of the Organisation of Working Time Act, 1997 states

4. —(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

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.

In the present case it was the uncontested evidence that the Sunday rate had been agreed in advance as being €7:00 cash nett per hour. There was no Sunday premium agreed in the contract. There was no evidence of any efforts by the Complainant, during her course of employment , to raise the Sunday premium issue or to lodge a claim with the Respondent.

Accordingly and taking Section 14(1) as quoted this claim cannot be well founded in the terms in which it is formulated.

It is dismissed.

There was considerable conflict of evidence between the parties here.

On balance having heard the verbal evidence and the copies of the various text messages that passed   I decided to accept the Complainant’s version of events. I came to the belief that she was given her end of employment notice on the 24^th February – the day her employment ended. However in mitigation of the Respondent it was clear that the Maternity leave of the Complainant’s colleague was coming to an end but the actual details of her return were unclear.

I award one week’s pay for Minimum notice – taking approximate average of the weekly rate this equates to €150.

There was major conflict of evidence between the parties here as to the actual number of hours worked. The Complainant stated on her claim form that she worked 346 hour in total. At 20 hours a week average this would have equated to 17 weeks work –i.e. a start date in or about the 28th October 2015. The Respondent maintained a start date of the 7^th December 2015. It was acknowledged by the Respondent that the Complainant was on the premises for periods of familiarisation and training during November but in an unpaid capacity. This was strongly contested by the Complainant.

The only records presented were weekly payroll records from the Respondents’ Accountant which showed a payment start date of week commencing 11/12/2015.

Taking the professional bona fides of the Accountant I accept these and accordingly award Holiday pay for the period from 7^th December 2015 to the 23^rd February 2016.

This period includes three Public Holidays.

I noted the acceptance from P.J. Byrne and Co .Solicitors for the Respondent that the non payment of the holidays was “a complete oversight” and their professional acceptance of this liability.

On a simple division of the total gross pay paid for 2015 and 2016 at €1857 / €8.65 I make the total hours worked at approximately 215 hours.

Taking Section 19 (1) ( c) of the WT Act at 8% this gives a holiday entitlement of 17.2 hours plus 12 hours( 20/5X3) for Public Holidays – a total of 29.2 hours . Accordingly I award 29.2 hours holiday pay at a rate of €8.65 = to €252.58.

I accept my calculations may` be approximate and based on available records presented at the hearing but set my award as the basic minimum payable.

This award and the awards referred to above to be paid within four weeks of the receipt of this decision by the parties.

Dated:   12^th December 2016