ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002451

Complaints for Resolution:

Venue: WRC; Tom Johnson House, Haddington Road, Dublin 4.

Date of Adjudication Hearings: 4/8/2016 and 24/10/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 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 Laundry Operative from 14^th September 2013 to 13^th December 2015. He was paid €222.30 net per week and worked 27 hours. He has claimed that he did not get a written contract of employment, did not get a premium for working Sundays and did not get holidays; he did not get the national minimum wage, was unfairly dismissed and did not get minimum notice.

1) Terms of Employment (Information) Act   CA-00003436-005

Complainant’s Submission and Presentation:

The Complainant stated that he did not get a written contract of employment.

Respondent’s Submission and Presentation:

The Respondent at the first hearing advised that he was given a contract. He did not bring a copy with him but it was in the office.

Findings

The respondent was given five weeks to provide the copy but he failed to do so.

A further hearing was provided to allow him respond but he did not attend that second hearing.

I now accept the evidence of the Complainant and therefore I find that the Complainant did not receive a contract of employment.

Sec 3 (1) of this Act sates,“ An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”

I note that Sec 7 (2) (d) of the Act states, “compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”.

Decision:

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

I have decided that the Respondent has breached Sec 3 of this Act.

I order the Respondent to pay the Complainant €400 compensation within six weeks of the date below.

2) Organisation of Working Time Act   CA-00003436-002/003

Complainant’s Submission and Presentation:

A) Sunday premium

The Complainant stated that he worked every Sunday for 9 hours net of breaks. He received no extra pay for working Sundays.

b) Holidays

He received 2 weeks holidays in 2015. He had to pay the Respondent €400 and then got it back when he returned. He did not get paid holidays for the two weeks taken and no holidays for the remainder of the year.

Respondent’s Submission and Presentation:

A) Sunday premium

The Respondent rejected that he worked 9 hours per Sunday and that he worked every Sunday. Also he paid extra for Sundays. He had not got the evidence but it was back in the office.

b) Holidays

He received his holiday entitlement and he had the records in the office.

Findings

A) Sunday premium

Sec 14 (1) (b) of the Organisation of Working Time 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”.

I note that the Respondent rejected that he worked those hours and that he worked every Sunday and he had records back in the office.

He was given five weeks to produce records of Sunday working. He failed to do so.

A further hearing was provided to allow him respond but he did not attend that second hearing.

On the balance of probability I find that the Respondent did not pay a premium for working Sundays and they have breached Sec 14 of the Organisation of Working Time Act.

b) Holidays

Sec 19(1) a) of the Organisation of Working Time Act provides for “4 weeks in a leave year” .

I note that the Respondent rejected this and advised that he had holiday records in the office.

He was given five weeks to produce records of holidays. He failed to do so.

A further hearing was provided to allow him respond but he did not attend that second hearing.

On the balance of probability I find that the Respondent has breached Sec 19 of the Organisation of Working Time 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.

A) Sunday premium

I have decided that the Complainant was not compensated for working Sundays.

I have decided that time and one quarter would be reasonable for that industry therefore he should have received €12.50 per hour instead of €10.00.

The period that I may investigate according to Sec 27 of the Organisation of Working Time Act is 23^rd September 2015 to 13^th December 2015, during that period 12 Sundays occurred.

I have decided that he is entitled to 12 Sundays X 9 hours X €2.50 = €270 in compensation for the economic loss.

In addition I have decided that he should receive €270 in compensation for breach of his rights under this Act.

b) Holidays

I have decided that he is entitled to four week’s pay in compensation for his holiday entitlement for the year amounting to €400 for the economic loss.

In addition I find that he should receive €400 in compensation for breach of his rights under this Act.

I have decided that these monies should be paid within six weeks of the date below.

3) National Minimum Wage Act     CA-00003436-001

Complainant’s Submission and Presentation:

He stated that he worked 27 hours over three days and was paid €222.30 gross which amounts to €8.23 per hour, which is €0.42 less than the minimum wage.

Respondent’s Submission and Presentation:

The Respondent stated that he worked 20 hours over three days and so was paid €200 per week which is €10.00 per hour. He had the record of hours worked in the office.

Findings

I note that the Complainant wrote to the Respondent on 2^nd February 2016 seeking a statement of his hourly rate of pay and received a reply referring him to his payslips.

Therefore the Complainant has complied with the requirements of Sec 24 (2) of the National Minimum Wage Act 2000.

I note that the Respondent had no records with him at the hearing. He was given five weeks to produce records of hours worked. He failed to do so.

A further hearing was provided to allow him respond but he did not attend that second hearing.

On the balance of probability I find that the Complainant worked 9 hours each day and 27 hours per week for €222.30 which amounts €8.23 per hour, based on the P45 supplied.

I find that the Respondent has breached this Act.

I find that during his employment he worked a total of 118 weeks. He worked 27 hours not 20 as alleged by the Respondent and he should have been paid €8.65 not €8.23 a difference of €0.42 per hour.

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.

I have decided that the Respondent did not pay the Complainant the national minimum wage.

I order the Respondent to pay the Complainant the following in arrears

118 weeks X 7 hours shortfall = 826 hours X €0.42 shortfall = €346.92.

This is to be paid within six weeks of the date below.

4) Unfair Dismissals Acts  CA-00003436-006

Respondent’s Submission and Presentation:

The respondent stated that he was dismissed because he took carpet cleaning products from the business. He dismissed him for gross misconduct. This theft was on camera and he undertook to get the CCTV footage. This claim is rejected.

Complainant’s Submission and Presentation:

On many occasions he requested the Respondent to pay him the appropriate wages for the hours worked and he was always promised that they would pay him. This never happened. On the 11th of December 2015 he asked the Respondent again for the payment for all the hours worked. The Respondent gave him a resignation letter to sign if he was not happy with the payment. He refused to sign such a letter. He asked the Respondent if he was scheduled for work for the following day, 12th of December 2015 and the Respondent told him that his work with them was finished. He was given the P45 with the date of cessation stated as 13th of December 2015. He rejected that he took carpet cleaner. There is a carpet in the laundry room and showed a photograph of it on his phone.

He is seeking compensation. He was out of work for two months. He is now working for a cleaning company 16 hours per week at €9.75 per hour.

FINDINGS

I note the conflict of evidence in this case.

He was given five weeks to produce the CCTV footage. He failed to do so.

A further hearing was provided to allow him respond but he did not attend that second hearing.

In the absence of the Respondent’s evidence and on the balance of probability I accept the evidence of the Complainant.

I find that he was dismissed because he queried his hours of work and the payments received.

I find that he was summarily dismissed without the application of any fair procedure whatsoever.

I find that the dismissal was unfair.

Decision:

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.

I have decided that the dismissal was unfair.

I order the Respondent to pay the Complainant compensation of €1,750 which two months wages.

This is to be paid within six weeks of the date below.

5) Payment of Wages Act   CA-00003436-004

Complainant’s Submission and Presentation:

He stated that he was summarily dismissed. He did not receive any proper notice or the payment in lieu of such notice.

Respondent’s Submission and Presentation:

He was dismissed for gross misconduct and no notice was applicable.

Findings

I refer to the decision in the unfair dismissals case above.

I found that the dismissal was unfair.

Therefore I find that he was entitled to minimum notice.

He had over two years’ service and so is entitled to two weeks wages amounting to €444.60.

Decision:

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

I have decided that the Respondent has breached this Act.

I order the Respondent to pay the Complainant €444.60 within six weeks of the date below.

Dated:   23^rd November 2016