ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003777

Complaints for Resolution:

Date of Adjudication Hearing: 13/09/2016                                             

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 was employed from 1^st June 2013 until she terminated the employment on 28^th May 2016. The Complainant was paid €9.15 an hour and she worked 35 hours a week as a Cleaning Operative. The Complainant was provided with a written statement of her Terms and Conditions of Employment.

The Complainant referred a complaint to the Workplace Relations Commission on 6^th May 2015 alleging the Employer had breached the Organisation of Working Time Act, 1997 in relation to annual leave and public holidays; had breached the Terms of Employment (Information) Act, 1994 in that she had not been provided with a written statement of her terms and conditions of employment and a third complaint under S.I. 36/2012 in relation to the keeping of records.

Terms of Employment (Information) Act, 1994

Summary of Complainant’s Position.

The Complainant accepted at the Hearing that she had been provided with a Written Statement of her Terms and Conditions of Employment on 1^st January 2015 and a further Contract on 5^th April 2016.

Summary of Respondent’s Position.

The Respondent confirmed that the Complainant had been issued with two contracts of employment in January 2015 and again in April 2016.

 Section 3 of the Act requires an Employer to provide written statement of Terms and Conditions of Employment within the period of 2 months of the commencement of the employment. The employment commenced in June 2013 and the first statement was issued in January 2015

 In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 I declare the complaint is well founded. The Respondent has breached Section 3 of the Act in that the Complainant was not provided with a statement until January 2015 some 18 months after the commencement of the employment. However the Complainant has been provided with two written statements, the latest in April 2016. I direct the Respondent to pay the Complainant compensation of €100.00 within 42 days of the date of this Decision.

Organisation of Working Time Act, 1997.

Summary of Complainant’s Position.

The Complainant stated the annual leave year was from January to December. The Complainant stated that she took 2 weeks annual leave in March/ April 2016 but was not paid. The Complainant also stated that she was not paid for her annual leave taken in 2015. The Complainant was unable to provide any evidence to the Hearing in relation to when she had taken annual leave in 2015.

The Complainant stated that she did not work any Public Holiday but after each Public Holiday she did double the work but was not paid. She is claiming payment for 5 Public Holidays.

Summary of Respondent’s Position.

The Respondent stated that the Complainant took annual leave from 2^nd May 2016 to 17^th May 2016 but he confirmed the Complainant was not paid for this annual leave on the basis that on her return from leave she terminated the employment and refused to work her two weeks’ notice as required by the Contract. The Complainant was on annual leave from 7^th December 2015 to 13^th December 2015 and was paid and the payslips provided verify this.

The Respondent stated that the Complainant did not work any Public Holiday but was paid for all Public Holidays. Evidence of Payslips provided to the Hearing.

 On the basis of the evidence from both Parties I find as follows:

Section 19: Both Parties confirmed that the Complainant had applied in advance for her annual leave from 2^nd May 2015 to 17^th May 2016 and both Parties confirmed to the Hearing that the Complainant had not been paid. I note that the Complainant was unable to give any evidence to the Hearing in relation to when she took her annual leave even though the complaint was lodged with the WRC on 6^th May 2016 while she was on annual leave. The Respondent has breached Section 19 and Section 20 of the Act.

The Complainant was unable to give any evidence to the Hearing in relation to annual leave taken in 2015, although the Respondent did provide evidence and payslips which confirm that the Complainant was paid her annual leave entitlements for 2015.

Section 21. Both Parties confirmed to the Hearing that the Complainant did not work any Public Holiday in the reference period covered by this complaint. The complaint related to hours worked by the Complainant immediately following each Public Holiday. However there is no complaint under the Payment of Wages Act, 1991.

However the evidence from the Respondent was that the Complainant was paid for each Public Holiday in the reference period from 7^th November 2015 to 28^th May 2016. Payslips were provided which show the Complainant was paid for each Public Holiday.

I find the Respondent has breached Section 19/20 of the Act in that the Complainant was not paid her annual leave from 2^nd to 17^th May 2016. I find there is no breach of Section 21 of the Act.

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and Section 27 of the Organisation of Working Time Act, 1997 I declare the complaint is well founded in part. The Respondent has breached Section 19/20 of the Act. I direct the Respondent to pay the Complainant the sum of €512.40 in respect of the Complainant’s Annual Leave entitlements – 35 hours x 20 weeks x 8% x €9.15 an hour. This to be paid to the Complainant within 42 days of the date of this decision. I also direct the Respondent to pay the Complainant compensation of €100.00 for breach of the Act. This to be paid within 42 days of the date of this decision.

This complaint was withdrawn at the Hearing as the Complainant is not comprehended by this S.I. which applies to mobile road transport workers. 

Rosaleen Glackin

Adjudication Officer

Date:     28/11/2016