ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001208

Complaints for Resolution:

At:                          Workplace Relations Commission, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 09/05/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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.

The Complainant has been employed by the Named Unemployment Centre Ltd since March 2005. He has been provided with a written statement of his Terms and Conditions of Employment. The Complainant referred complaints to the Workplace Relations Commission on 17^th December 2015 alleging the Respondent had breached Section 6 of the Payment of Wages Act, 1991 – 2015, had breached Section 3 of the Terms of Employment (Information) Act, 1994 – 2015, had breached Sections 17 and 21 of the Organisation of Working Time Act, 1997 – 2015 and had breached Section 9 of the Protection of Employees (Fixed-Term Work) Act, 2003 – 2015.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994 – 2015

The Complainant had not received a document that complies with Section 3 of the Act. The following Sections of .the Act have not been complied with – Section 3 (1) (a) Name of the Employer (b) Address of Employer (g) and (ga) reference to the National Minimum Wage Act (i) notice and Section (1) (4) not signed and dated by the Employer.

Payment of Wages Act, 1991 – 2015.

The Complainant’s wages were subject to an illegal deduction from €542.84 to €459.32 approximately from 1^st May 2015 which is an ongoing loss. The employee seeks compensation.

Organisation of Working Time Act, 1997 – 2015.

The employee’s rate of pay was reduced as a result of which he did not receive the correct Public Holiday payment for June, August and October 2015 Public Holidays.

Protection of Employees (Fixed-Term Work) Act, 2003 – 2015.

The employee commended employment in March 2005 and is still there. The employee has been on rolling fixed term contracts. The employee has sought to get a Contract of Indefinite Duration and has never been give objective reasons for not receiving a CID. The employee was never informed of opportunities or training for a permanent position. He is seeking a Contract of Indefinite Duration.

Summary of Respondent’s Position.

Terms of Employment (Information) Act, 1994 – 2015

The Respondent acknowledged that the Contract of Employment required to be amended to comply fully with Section 3 and Section 4 of the Act. The Respondent referenced the Decision of the Labour Court in Irish Water v Patrick Hall in support of their argument that as the Complainant had not suffered any financial loss or any form of material determent then the result was a technical breach of the Act.

Payment of Wages Act, 1991 – 2015

The Respondent raised a Preliminary Issue. This was an overpayment therefore the Payment of Wages Act does not apply. The Complainant’s Contract of Employment specifies that his hours of work are 39 hours a week. During 2015 the Respondent was notified of an impending audit by the Department of Social Protection. The Respondent became aware that the Complainant was only working 33 hours a week. The Respondent met with the Complainant in relation to his Contract of Employment but the Complainant stated that he was unable to work more than 33 hours a week. . The Complainant was offered the facility of working later on agreed days and working from home from 3.30pm on a Friday. The Complainant refused this offer. The Respondent explained that the Scheme provided that funding was only available to cover actual hours worked and that going forward he could only be paid for actual hours worked.

The Respondent also stated that the Complainant was requested to sign a contract of employment to reflect the actual hours worked. The Complainant advised that his Solicitor had advised him not to sign. He had also been advised by his Solicitor he stated not to sign the Attendance Sheet

Organisation of Working Time Act, 1997 – 2015

The Public Holiday of June 2015 is statute barred as it is outside the statutory time limit of 6 months. The Complainant was paid the correct wages for the August and October 2015 Public Holidays as the Complainants wages had been reduced to reflect the actual hours worked. The Complainant worked 33 hours a week whereas his contract provided he should work 39 hours a week.

Protection of Employees (Fixed-Term Work) Act, 2003 – 2015

The Respondent argued that the Complainant was not covered by the Act by virtue of Section 2 (1) of the Act.

Decision:

Section 41(4) 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.

Terms of Employment (Information) Act, 1994 – 2015

On the basis of the evidence presented by both Parties I declare the complaint is well founded. The Respondent has breached Section 3 and Section 4 of the Act. However I note the Decision of the Labour Court in Irish Water and Patrick Hall TED 161 which is relevant to this complaint. There was no evidence presented at the Hearing that the Complainant suffered any detriment as a result of these technical breaches of the Act.

I order the Respondent to issue the Complainant with a Written Statement of his Terms and Conditions of Employment that complies with both Section 3 and 4 of the Act within 42 days of the date of this Decision.

Payment of Wages Act, 1991 – 2015.

There was no dispute between the Parties but that the Complainant had a Contract of Employment to work 39 hours a week. Both Parties also confirmed that the Complainant worked a total of 33 hours each week.

Section 5 (5) (a) of the Act provides as follows: Nothing in this section applies to – (a) a deduction made by an employer from the wages of an employee…..where – (i) the purpose of the deduction… Is. the reimbursement of the employer in respect of - (1) any overpayment of wages”.

The deduction made from the Complainant’s wages effective from 1^st May 2015 reflect the actual hours worked of 33 hours a week as distinct from the contracted hours of 39 hours a week.

I declare the complaint is not well founded as there was no unlawful deduction as defined by the Act from the Wages of the Complainant.

Organisation of Working Time Act, 1997 – 2015.

The complaints relate to payment made by the Respondent in respect of three Public Holidays – June, August and October 2015.

Preliminary issue: This complaint was lodged with the Workplace Relations Commission on 17^th December 2015. Therefore the period covered by this complaint is from 18^th June 2016. Therefore the complaint in relation to the June Public Holiday is statute barred by reference to Section 27 (4) of the Act. There was no application made at the Hearing for an extension of time.

The Complainant works 33 hours a week and is paid wages to reflect his hours worked since 1^st May 2015. There was no evidence presented to me as the Adjudicator at the Hearing that the Complainant had been paid his incorrect wages for the August and October Public Holidays. This complaint is a follow on complaint from the Payment of Wages Complaint which I have found not to be well founded.

I declare these complaints are not well founded.

Protection of Employees (Fixed-Term Work) Act, 2003 – 2015.

Section 2 (1) of the Act defines a Fixed-Term Employee for the purposes of the Act as follows:

“fixed-term employee means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include –

(a)   Employees in initial vocational training relationships or apprenticeship schemes, or

(b)   Employees with a contract of employment which has been concluded within the framework of a specific public or publicly supported training integration or vocational retraining programme”

Decision: I declare I do not have jurisdiction to hear this complaint as the Complainant is not a Fixed-Term employee as defined by the Act. The Complainant is employed on a Community Employment Scheme which is a publicly funded scheme to “enhance the employability and mobility of disadvantaged and unemployed persons by providing work experience and training opportunities for them within their communities”.

Date: 5^th July 2016