ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000389

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

Date of Adjudication Hearing: 03/02/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, Section 6 of the Payment of Wages Act, 1991, Section 27 of the Organisation of Working Time Act, 1997 and Section 7 of the Terms of Employment (Information) Act, 1994 , `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:

No written submission was received but a Manager for the Respondent attended and made a verbal submission supported by some supplied documents. In particular a lengthy E mail to the Complainant from the Respondents’ Operations Manager dated the 12^th October 2015.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 6 of the Payment of Wages Act, 1991, Section 27 of the Organisation of Working Time Act, 1997 and Section 7 of the Terms of Employment (Information) Act, 1994 require decision in relation to the redress provisions of those Acts.

Issues for Decision:

Unfair Dismissal Alleged Non Payment of Wages, Holiday Pay and Public Holidays. Alleged Non provision of Statement of Terms of Employment.

Legislation involved and requirements of legislation:

Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, Section 6 of the Payment of Wages Act, 1991, Section 27 of the Organisation of Working Time Act, 1997 and Section 7 of the Terms of Employment (Information) Act, 1994 , {text}

Decision:

This case was not blessed by clarity in evidence supplied by either party.

However on careful review of all materials both oral and written the following points appeared to be clear.

The Complainant, a cleaner, commenced employment with the Respondent on or about the 15^th March 2015. This was following the transfer of a body of work to the Respondent (initially 15 but increased to some 20 hours per week) in Premises XX1 where the Complainant was working for another employer. Whether or not this was a TUPE transfer was contested by the Respondent but on balance appeared to fulfil the necessary requirements and tests for a Transfer of Undertakings - same location – same work only change being the transfer of the work to a new employer. The Complainant had commenced work on this site on the 15^th September 2014.

This gives rise to a time limits issue and makes the date of dismissal crucial if the 12 month rule is to apply.

In evidence the Respondent maintained that the employment had ended on the 13^thJuly 2015. This date being on the P45. Final salary and holiday pay payments were made by the Respondent - a pay slip dated the 10^th of July was presented in evidence.

While hotly contested it appeared, by default that the Complainant was aware of difficulties in her position on her return, from two weeks sick leave in Poland, in late July. It was alleged that she had created a disturbance, seeking clarification of her position, at the business premises /cleaning site.

It was accepted that a heated incident involving staff from the building/business owner took place in July at the site of the Cleaning Contract in relation to the Complainant’s employment status. The Complainant sought to plead her case to the end Client’s Manager. The premises owner had at one stage; it was alleged, to threaten to call the Gardaí to have the Complainant removed from the premises. Evidence was given, in writing, (copies of e-mails) of alleged abusive texts by the Complainant to the Respondent Managers. Again evidence was unclear here and hotly contested on these points but I, on balance, was inclined to take the view of the Complainant as being closer to the actual facts.

Evidence pointed to the fact that, notwithstanding the confusions, she worked on the contract from 20^th July 2015 to the 7^th August 2015. She received no formal notice of dismissal of any description and continued as an employee until the 7^th August. The Complainant then went to Poland for Surgery on the 11^th August 2015.

The complete absence of any employment procedures by the Respondent did not help matters and communications with the Complainant were poor. In an e mail of the 12^th October 2015 the Respondent‘s Operations Manager referred to the complainant‘s “six month of employment i.e. from March to September 2015 – the Respondent maintaining that the employment had commenced in March 2015.

The exact date of dismissal was not clear; the Respondent maintained that it was the 13^th of July 2015 even if evidence pointed to the Complainant being at work until the 7^th August 2015.

However in the complete absence of all procedures, which was the outstanding feature of the entire case, the first communication to the Complainant stating or giving notice that she was dismissed was the E Mail of the 23^rd September 2015. This has to stand as the date of Dismissal.

Accordingly I have to find that the Unfair Dismissal claim is well founded. The Employment commenced with the previous contract holder on the 15^th September 2014 giving some 12 month’s service.

Wage Slips and written evidence supplied by the Respondent indicated that all monies due to the 13/07/2015 had been paid.

The contested period was from 20^th July to the 7^th August 2015. Evidence pointed to the fact that the Complaint did actually work this period.

The E mail from the Operations Manager of the 23^rd September 2015 referred to “monies owed “which could only have been post the 13^th July 2015.

Accordingly this claim is well founded.

This element was for Annual Leave due for the contested period of employment i.e. from the 20^th July 2015 to the 7^th August 2015.

Annual Leave was paid up to the 13^th July – the evidence presented by way of pay slips from the parties confirmed this.

This claim is well founded – holidays are due for the contested period.

This is the Public Holiday Pay for the contested period. The only Public Holiday in the period being the 3^rd August 2015.

The Complainant has the required service to qualify – at least 40 hours in the preceding 5 week period.

This claim is well founded.

No evidence was presented of any Documentation regarding her Contract of Employment being given to or signed by the Complainant. In fact in an email of the 12^th October 2015 the Respondent states that they did not give contracts “for casual work”.

1. ^st October 2015 long after the Complaint ended her employment.

I find this claim to be well founded.

Redress:

I award the Complainant a sum of € 10,500 (approximately 12 months pay) as compensation for her Unfair Dismissal. The complete absence of any employment procedures being a major factor in my making of this award.

This is not an award in lieu of wages and as such, subject to revenue approval, is not liable for employment taxes.

For the period 20th July to the 7^th August 2015 - 60 hours was claimed by the Complainant. This figure was not contested by the Respondent – accordingly a sum of € 619.80 is awarded to the Complainant.

As it is in lieu of Wages it is taxable.

This being the Holiday Pay element of the claim.

In accordance with Schedule Three of the Working Time Act I award 4 hours holiday pay (€ 41.32) for the contested period – taxable as in lieu of remuneration.

This is the Public Holiday Pay for the contested period. The only Public Holiday in the period being the 3^rd August 2015.

II award one days pay – 4 hours = €41.32. As this is in lieu of remuneration it is liable to employment taxes.

As no evidence of any Contract of Employment was provided I award two week’s pay as Compensation for the breach of this Act = i.e. a payment of € 413.20. (€10.33 X 20 X2)

As this award is made for the breach of her rights under the Act and not in lieu of wages it is not taxable.

Dated: 22^nd June 2016