ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001891

Complaints for Resolution:

Date of Adjudication Hearing: 14/06/2016

At:                          Workplace Relations Commission, Haddington Road, Dublin 4

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 complaint 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 from 7^th July 2014 until the employment terminated on 14^th August 2015. The Complainant was paid up to 31^st August 2015.

The Complainant referred complaints to the Workplace Relation Commission on 14^th February 2016 alleging the Respondent had breached Section 3 of the Terms of Employment (Information) Act and had breached Section 5 of the Payment of Wages Act, 1991 – 2015.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994 – 2015. The Complainant stated he had not been provided with a written statement of his Terms and Conditions of Employment

Payment of Wages Act, 1991 – 2015. The Complainant stated that he is claiming payment of €9857.50 in respect of wages due and not paid. He stated he had an agreement with his Employer that he would be paid €2000.00 a month into his Bank Account. He stated that he did receive €2000.00 into his account the first two months after which his salary was either not paid or not fully paid. He stated he never received his full wages over the 14 months of the employment. The Complainant was unable to present evidence to the Hearing in relation to the breakdown of wages of €9857.50 he stated was owed to him.

The Complainant stated that he took 2 days annual leave during the employment. The Complainant was unable to provide any information at the Hearing as to when he took this annual leave.

He was made redundant on 14^th August 2015.

Summary of Respondent’s Position.

Terms of Employment (Information) Act, 1994 – 2015.The Respondent confirmed that the Complainant was not provided with a written statement of his Terms and Conditions of Employment. However the Respondent submitted that during the course of the employment the Complainant did not request a Contract and there was a degree of uncertainty regarding the Complainant’s Role due to the fragile nature of the business.

Payment of Wages Act, 1991 – 2015: The Complainant was paid a total of €19,830 gross over the course of the employment. The Respondent provided a copy of the Complainant’s P60 for 2014 and P45 for 2015. The Complainant was paid €381.34 a week over the period. The Respondent denied that there was any agreement to pay the Complainant €2000.00 into his account each month. The Respondent further stated that at no time did the Complainant raise any issue in relation to his wages until after he was made redundant in August 2015. The Respondent stated that he didn’t know what annual leave, if any, the Complainant had been given during the course of the employment. The Respondent also confirmed that the Complainant had not been paid, pay in lieu of annual leave, on termination of the employment.

Preliminary Issue – Time Limits.

Payment of Wages: Section 6 of the Act provides that a complaint must be lodged with the Workplace Relations Commission within the period of 6 months of the alleged deduction from wages. This can be extended by a further 6 months if the Complainant can show reasonable cause to explain the delay. The Complainant was afforded an opportunity to explain the delay and he stated that he was trying to solve this directly with his former Employer. The Respondent denied this and stated that at no time did the Complainant ever raise an issue in relation to his wages.

1. This complaint in relation to wages was submitted to the WRC on 14^th February 2016. Therefore in accordance with Section 6 of the Act the period covered by this complaint is from 15^th August 2015. However the Employment terminated by reason of redundancy on 14^th August 2015. I therefore decide not to give an extension of time in relation to this element of the complaint under the Payment of Wages Act, 1991 – 2015.

Findings

Terms of Employment (Information) Act, 1994 – 2015: Section 3(1) of the Act provides that an employer must provide an employee with a written statement of Terms and Conditions of Employment within the period of 2 months of the commencement of the employment. Both Parties confirmed at the Hearing that the Respondent had not issued the Complainant with his Terms and Conditions of Employment.

Payment of Wages Act, 1991 – 2015: The Annual Leave is from 1^st April 2014 to 31^st March 2015 and from 1^st April 2015 to the termination of the employment on 14^th August 2015. Both Parties confirmed at the Hearing that the Complainant worked 40 hours a week. The Complainant worked a total of 53 weeks x 40 hours a week = 2120 hours 8% =169.60 hours annual leave due. The Complainant stated that he had taken 2 days annual leave = 16 hours annual leave taken. Therefore the Complainant is entitled to payment of 153.60 hours annual leave due and not paid on termination of the employment.

Decision:

Section 41(5) 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.

Terms of Employment (Information) Act, 1994 – 2015

I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €400.00 within 42 days of the date of this Decision.

Payment of Wages Act, 1991 – 2015.

I declare the complaint is well founded in part. I order the Respondent to pay the Complainant the sum of €1464.35 being payment for annual leave due and not paid on termination of the employment. I direct the Respondent to pay this sum, subject to any lawful deductions, within 42 days of the date of this Decision.

Rosaleen Glackin

Adjudication Officer

Date: 15^th September 2016