ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003236

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

Date of Adjudication Hearing: 13/09/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

 Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The hotel had to close suddenly in April 2016 as the water supply was turned off by the Council.

There were also problems in relation to some cheques issued in April.

As issues were sorted the hotel reopened for business at week-ends and then traded fully during the summer months.

Members of the staff were offered re-employment as work became available but the complainant requested his P45 and holiday pay.

Decision:

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

Issues for Decision:

Did the complainant receive all payments due to him as wages?

Did the complainant receive all holiday pay due to him?

Did the complainant receive his Public Holiday entitlements?

Legislation involved and requirements of legislation:

Section 5(6) of the Payment of Wages Act, 1991 states:

Where –

1. the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is propyl payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

2. none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Section 19 (1) of the Organisation of Working Time Act, 1997, states:

Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to –

1. 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave yea in which he or she changes employment),

2. One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

3. 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Section 21 (1) of the Organisation of Working Time Act, 1997 states:

Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

1. a paid day off on that day,

2. a paid day off within a month of that day,

3. an additional day of annual leave,

4. an additional day’s pay:

Provided that if the day on which a public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states:

1. An employer shall, in order to terminate thecontract of employment of an employee who has been in continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2)of this section.

2. The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

1. If the employee has been in the continuous service of his employer for less than two years, one week…

Decision:

The complainant was employed by the respondent as a barman from September 2014 until his employment terminated in April 2016. The hotel only opened at weekends and for functions outside of the holiday season. The complainant stated on his claim form that he was working 20 hours per week for a gross payment of €183.00 per week. The complainant did not attend the hearing but was represented by a work colleague who was present at the time of the closure. The colleague had documentation to the effect that a number of cheques issued by the respondent to the complainant had not been honoured and had been returned marked “Refer to Drawer”.

The respondent told the hearing that issues had arisen in April 2016 which resulted in the water supply to the hotel being cut of by the local council. This resulted in a decision to close the premises on 10 April until the water supply could be restored. The manager was informed of the decision and he in turn advised the staff. The water supply was turned back on a few days later. Most members of staff were then re-employed.  A function was held in the hotel the following week and the complainant worked at that event and was paid for it. The complainant, however, then returned to his home country. The hotel traded fully during the holiday season. The respondent also accepted that there had been problems with cheques issued in April 2016. As regards earlier cheques the respondent felt that if there had been issues in relation to returned cheques then staff would have been paid from cash.

Complaint No. CA-00004219-002:

This complaint relates to the issue of wage cheques being returned marked “Refer to Drawer”. The evidence showed that that this occurred on a number of occasions in 2015 and in April 2016. The respondent accepted that there was a problem with cheques issued in April 2016. The cheque dated 4 April 2016 returned to the complainant had a value of €317.00. As regards the other cheques only one of these is dated within the six-month reference period prior to the presentation of the complaint on 4 May 2016. This was to the value of €92.26. I therefore find that this complaint is well founded and order the respondent to pay the complainant compensation to the amount of €409.26.

Complaint No. CA- 00004219-003:

This complaint relates to the non-payment of annual leave entitlements. It was stated that the complainant had four weeks holidays in 2015 and there was no evidence to the contrary. There was no payment made in relation to holiday entitlement in 2016. I therefore find this complaint to be well founded and require the respondent to pay the complainant compensation to the value of €250.00.

Complaint No. CA-00004219-004:

This complaint relates to the non-receipt of Public Holiday entitlements. There was no specific evidence offered in this regard other than the broad statement in the claim form. The respondent did not offer any evidence to refute this claim. There are 5 Public Holidays falling within the reference period including Easter Monday. I therefore find this complaint to be well founded and require the respondent to pay the complainant compensation to the value of €250.00

Complaint No. CA-00004219-005:

This is a complaint under the Payment of Wages Act, 1991, in relation to the non-payment of money in lieu of notice. There is conflicting evidence as to what was communicated to staff at the time of the closure. It does appear that the complainant worked at a function in the hotel in the week following the original closure and was paid for this. I also note that in a letter to the WRC in May 2016 the complainant states that he had returned to his home country. On the basis of the evidence before me I find this complaint to be not well founded and it therefore fails.

Complaint No. CA-00004219-006:

This is a complaint under the Minimum Notice and Terms of Employment Act, 1973, in relation to the non-payment of money in lieu of notice. For the reasons set out above I do not find the complaint to be well founded and it therefore fails.

Dated:   23^rd November 2016