ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001366
Complaints for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00001815-001 | 07/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001815-002 | 07/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001815-003 | 07/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00001815-004 | 07/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00001815-005 | 07/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 | CA-00001815-006 | 07/01/2016 |
Venue: WRC, Tom Johnson House, Haddington Rd, Dublin 4.
Date of Adjudication Hearing: 12/04/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015, under section 7 of the Terms of Employment (Information) Act, 1994, under section 27 of the Organisation of Working Time Act, 1997, under section 13 of the Industrial Relations Act 1946, under Section 8 of the Unfair Dismissals Act, 1977 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 as a Cleaner from 6th May 2013 to 8th October 2015. She was paid €9.50 per hour and worked 21 hours per week. She has submitted a number of complaints.
1)Terms of Employment (Information) Act | CA-00001815-005 |
Complainant’s Submission and Presentation: |
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The Complainant stated that she did not get a written contract of employment. She asked for a contract but was not given one.
Respondent’s Submission and Presentation:
They stated that a contract form was signed by the Complainant it contains a carbon copy. This was not returned by her. This indicates that she received it.
Findings
I note the conflict of evidence in this case.
On the balance of probability I find that the Respondent did issue a contract document. An examination of it shows that it does not fully comply with the requirements of Sec 3 of this Act, it does not confirm the rate of pay and it does not refer to a sick pay scheme.
I find that the Respondent has breached Sec 3 of this Act.
Decision
Section 41(4) of the Workplace Relations Act 2015 and under section 7 of the Terms of Employment (Information) Act, 1994 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 that complaint is well founded.
I order to Respondent to pay the Complainant compensation of €100 (One hundred).
This is to be paid within six weeks of the date below.
2) Organisation of Working Time Act: CA-00001815-002/3/4
Complainant’s Submission and Presentation:
a) Holidays
She stated that she is due 11 days holidays from 2013 and is due 13 days in 2015. She received 10 days holidays in 2015.
b) Public Holidays
She stated that she has not been compensated for the 5 Public holidays in 2015, January 1st, March 17th Easter Monday, May Monday, and June Monday.
c) Sunday premium
She stated that she worked some Sundays but doesn’t know when or how many hours. She did not get extra pay for the Sundays.
Respondent’s Submission and Presentation:
a)Holidays
No holidays are due as she received 10 days in 2015.
b) Public Holidays
They stated that she didn’t work on January 1st and was paid 3 hours, on March 17th she worked 3 hours and was paid 6, on 6th April she worked 3 hours and was paid for 6, on May Monday she worked 3 and was paid for 6 hours and she didn’t work in June.
c) Sunday premium
The minimum wage is €8.65 per hour and she was paid €9.50 per hour. No extra pay was given for Sundays.
Findings
This complaint was presented to the Commission on 7th January 2016. Therefore the period that may be investigated is 8th July 2015 to 8th October 2015 as per the time limit set out in Sec 27(2) of this Act.
a) Holidays
I find that any claim in respect of 2013 is out of time.
I find that she received 10 days holidays and only worked for the first six months of the year.
Therefore there is no basis for this part of the complaint and so it fails.
b) Public Holidays
I find that I can only investigate back to 8th July 2015 as per the time limit referred to above. Therefore this part of the claim is out of time.
c) Sunday premium
I note that the Complainant and the Respondent were unable to state what Sundays were worked and what hours worked.
Sec 14 (1) (b) of this Act states, “an employee who is required to work on a Sunday .. shall be compensated by otherwise increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances b) by increasing the employees’ rate of pay by such an amount that is reasonable, c) by granting an employee such paid time off as is reasonable, d) or by a combination of two or more of the mean referred to in the preceding paragraph”.
Therefore as neither party were able to quantify the Sunday hours worked I cannot award compensation for the economic loss.
I saw no evidence that the rate of €9.50 per hour was a composite rate to take Sunday work into consideration.
I find that the Respondent has breached Sec 14 of this Act in failing to provide a premium that is reasonable.
I find that compensation of €200 is warranted for breach of her rights under this Act.
Decision
Section 41(4) of the Workplace Relations Act 2015 under section 27 of the Organisation of Working Time Act, 1997 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 have decided that the Respondent should pay compensation of €200 (two hundred) for breach of her rights under this Act.
This is to be paid within six weeks of the date below.
1) The Industrial Relations Acts CA-00001815-006 Complainant’s Submission and Presentation:She stated that she was treated unequally and she had to do other peoples’ jobs. A male Supervisor slapped her on the buttocks a couple of times in 2015. She reported this to her manager. The manager then told her it was a joke. She didn’t do anything else about this matter. A second incident arose in May 2015 concerning rubbing of ointment with the same supervisor. She again reported this to her manger. The manager came back to her to state that it was again a joke. She didn’t follow up on this. Respondent’s Submission and Presentation:They stated that they accept that she did speak to her manager. He replied that the tapping her on the “bum” was a joke to get her to move on. He was told to stop this. They understand that that was the end of the matter and it was never reported again. They were unaware of the ointment incident.
Findings I note that the Respondent investigated the slapping incident and deemed that it was a joke and instructed the supervisor to stop doing it. They understood that the matter was dealt with as no further grievance / complaint was raised. I note that they were unaware of the second incident refereeing to ointment. I note that she did not raise any further grievance and so it was reasonable for the Respondent to conclude that they had dealt with the matter. Recommendation/Decision:Section 41(4) of the Workplace Relations Act 2015 under section 13 of the Industrial Relations Act 1946 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 recommend that there is no basis for this complaint and so it fails.
3)The Unfair Dismissals Acts CA-00001815-001 Respondent’s Submission and Presentation:They stated that she didn’t work since July. They contacted her by text in August enquiring about why she was not at work. They advised that if she was ill she needed to send in medical certificates. They also made enquiries through a friend. They received no response and so in October they terminated the employment. This claim is rejected. Complainant’s Submission and Presentation:She stated that she asked her employer for unpaid time off due to health issues. This was agreed. She accepts tat she received a text from her employer in August but did not reply. There was no contact until November. She believes that when she spoke to her supervisor she was told to leave. She doesn’t understand why and why the delay in issuing her P45. She is seeking compensation. |
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Findings
I note the conflict of evidence in this complaint.
I note the allegation that she had sought time off due to ill health but the Respondent rejected this.
I note that the Complainant confirmed that she had received a text about returning to work. Therefore if there was any doubt about whether she had been terminated she knew then that she wasn’t.
I note that despite this request to respond she did not do so.
I find that it was reasonable for the Respondent to terminate the employment in October as they had received no communication from the Complainant.
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 and under Schedule 6 of that Act and under Section 8 of the Unfair Dismissals Act, 1977.
I have decided that the Respondent acted reasonably in terminating the employment after the Complainant failed to communicate with them.
I have decided that this claim is not well founded and that it fails.
Dated: 5th July 2016