ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000591

Complaints for Resolution:

Date of Adjudication Hearing: 04/08/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 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 16^th April 2015 until the employment terminated on 18^th July 2015. The Complainant stated that she was paid €124.00 net per week and worked 47 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 9^th November 2015 alleging the Respondent had breached the Terms of Employment (Information) Act, 1994, had breached the Payment of Wages Act, 1991 and had breached the Organisation of Working Time Act, 1997.

The Complainant stated that she was never provided with payslips.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994 – The Complainant stated that she had not been provided with a written statement of her Terms and Conditions of Employment.

Payment of Wages Act, 1991 – The Complainant stated that she worked 4 days a week. She worked Thursday from 3pm to 2.30am – Friday from 3pm to 3am – Saturday from 3pm to close – Sunday from 3pm to 2.30am. She was paid cash but no payslip. The Complainant stated that she had worked over 47 hours a week over the course of her employment which had been terminated by the Respondent. The Complainant stated she was working Sundays with no Sunday Premium paid and also she worked nights with no additional pay.

The Complainant is claiming payment of the National Minimum Wage to all her hours worked each week minus the €124.00 paid to her each week. She is also claiming payment of Minimum Notice when the Respondent terminated her employment.

Organisation of Working Time Act, 1997. – The Complainant stated that she worked each Sunday but was not paid a Sunday Premium, She did not get her breaks while at work. She stated there were two employees employed who worked with the Respondent and sometimes the Respondent’s father. She was allowed to eat and drink while working but there was no scheduled break allowed. She stated she had not been paid her annual leave entitlements on termination of her employment nor had she been paid her Public Holiday entitlements. She stated that she did not work on each Public Holiday but she had not been provided with payment in relation to each Public Holiday.

Summary of Respondent’s Position.

The Respondent did not attend the Scheduled Hearing.

Terms of Employment Information Act, 1994 CA-0000729-008

Section 3 of the Act requires an employer to provide an employee with a written statement of Terms and Conditions of Employment within the period of two months of the commencement of the employment. The Complainant was employed for a period of 3 months and on the uncontested evidence of the Complainant she was not provided with a Statement of terms and conditions of her employment. In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €€200 within 42 days of the date of this Decision.

Payment of Wages Act, 1991. CA-0000729-002- and CA-0000729-005

The Complainant stated that she worked on average 47 hours a week and was paid cash in hand of €124.00 per week. The Complainant was entitled to be paid the National Minimum Wage of €8.65 at that time. The Complainant was employed for a period of 13 weeks x 47 hours a week = 611 hours at €8.65 an hour €5285.15. On the uncontested evidence of the Complainant she was paid €1612.00 (13 weeks x €124.00 a week). The Complainant is entitled to be paid the balance of €3673.00. In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I direct the Respondent to pay the Complainant the sum of €3673.00, subject to any lawful deductions, within 42 days of the date of this Decision

The Complainant is claiming payment of Minimum Notice on termination of the employment. Section 4 (1) of the Minimum Notice and Terms of Employment Act, 1973 provides that where an employee has been in the continuous employment of the Employer for a period of 13 weeks then they become entitled to payment of minimum notice where the employer terminates the employment. The Complainant satisfies Section 4 (1) of the 1973 Act, therefore the Complainant is entitled to payment of one week’s minimum notice on termination of her employment. In accordance with Section 421 (5) of the Workplace Relations Act, 2015 I declare the complaint is well founded. I direct the Respondent to pay the Complainant €302.75 In respect of one week’s minimum notice within 42 days of the date of this Decision.

The Complainant lodged a complaint under the Payment of Wages Act in relation to her annual leave entitlements. She also lodged a similar complaint under the Organisation of Working Time Act, 1997 and I have issued a Decision in relation to Annual Leave under that Act.

Organisation of Working Time Act, 1997 – CA-0000729-001: CA-0000729-003: CA-0000729-004 and CA-0000729-007

Section 12 of the Act provides that an employer shall not require an employee to work more than 4 hours and 30 minutes without a break of at least 15 minutes and more than six hours without a break of 30 minutes, which break can include the first break of 15 minutes. On the uncontested evidence of the Complainant I find that while the Complainant was allowed to eat and drink while working however this does not comply with Section 12 of the Act. I find the Respondent has breached Section 12 of the Act. I direct the Respondent to pay the Complainant compensation of €100.00 within 42 days of the date of this Decision.

Section 14 of the Act provides that an employee is entitled to be paid a Sunday Premium where this has not been included in the determination of wages included in the Contract of Employment. On the uncontested evidence of the Complainant she worked each Sunday and was not paid a Sunday Premium. I find the Respondent has breached Section 14 of the Act. I direct the Respondent to pay the Complainant compensation of €200.00 within 42 days of the date of this Decision

Section 21 of the Act governs an employee’s entitlement to Public Holidays. There were two Public Holidays in the reference period of this complaint. On the uncontested evidence of the Complainant I find that the provisions of Section 21 were not applied to the Complainant. I find that the Respondent has breached Section 21 of the Act. I direct the Respondent to pay the Complainant compensation of €100.00 within 42 days of the date of this Decision.

Section 23 of the Act provides that an employee is entitled to be paid accrued annual leave on termination of the employment. The Complainant worked for 13 weeks working on average 47 hours a week = 611 hours worked x 8% = 48.88 x €8.65 an hour = €422.81. I find the Respondent has breached Section 23 of the Act. I direct the Respondent to pay the Complainant the sum of €422.81 in lieu of annual leave due on termination of her employment. This to be paid to the Complainant within 42 days of the date of this Decision.

DATE: 13 October 2016 

Date 13^th October 2016