ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002483

Complaints for Resolution:

Date of Adjudication Hearing: 2 September, 2016 and 16 November, 2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, Section 24 of the National Minimum Wage Act, 2000, Section 27 of the Organisation of Working Time Act 1997, Section 7 of the Terms of Employment ( Information) Act ,1994 , Section 8(1B) of the Unfair Dismissals Act, 1977 and Section 39 of the Redundancy Payments Act 1969,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.

Complainant’s Submission and Presentation:

The complainant is a Latvian national who commenced work with the respondent as a Cashier on July 1, 2013. This was her first position in Ireland .She left employment on 31 October 2015 and made a number of complaints to the WRC on 11 March 2016.

The complainant described a very difficult working environment in a Fast Food Outlet .When she commenced work , she received €135.00 per week for a 69 hour week .Later, in July 2014,this was increased to €250.00 for a 60 hour week over 5 days .This equated with an initial hourly wage of €1.95 per hour followed by €4.16 per hour .

She submitted that she worked every Saturday /Sunday from 3pm -2 am and did not receive a Sunday premium .She was left in charge of the take-away as the owner did not deal with the shop .She worked with a range of other nationalities .She was unhappy at work, she requested pay slips but only received one pay slip in October 2014. She did not receive payment for annual leave or public holidays.

The complainant submitted that she had not received a statement of her Terms and Conditions of employment from the respondent.

The complainant submitted that she was compelled to leave her position on 31 October 2015 due to the amount of stress she experience there .She was unsupported by the respondent .She was repeatedly the subject of unwelcome sexual innuendo advances from both the respondent and other staff at the business .She felt forced to leave .

The complainant gave evidence that she received unwelcome advances from the respondent during her employment .When she asked for her contract, she was fobbed off and had nobody to confide in regarding the respondent’s treatment.

She took a break of a number of weeks with her children in June 2014 .The situation did not improve on her return on 15 July 2014.

On her last day of work, 31 October ,2015 , a co worker screamed at her and grabbed her during the working day .She was anxious and stressed and felt forced to leave .The complainant submitted a note from her Doctor confirming workplace stress.

The complainant contended that she had not received a redundancy payment from the respondent as the Department of Social Protection had informed her that she was not entitled to anything.

The complainant told the hearing that she had got another job in February 2016, where she felt respected and was now receiving the minimum wage.

The complainant gave further evidence in response to the evidence of the respondent on the second day of hearing that she had not receive a €300 euro in payment for holidays .She had not received an extra euro for Sunday or anything extra for public holidays .She submitted that she was certain that the respondent was at the helm of the business during 2015 as she saw him there. She had not met the new owners as described by the respondent .She submitted six names of staff with whom she worked at the respondent premises.

She confirmed that she had not received either of the P45s and neither had she resigned her employment .She had repeatedly asked for pay slips but did not receive any. She reaffirmed that she was stressed .She denied seeking a from the respondent .There were no grievance or disciplinary procedures available to her.

The complainant confirmed that she had not worked at the business at Christmas 2014 as she was at home in Latvia. She stated that she took 6 to 7 months off.

The complainant stated that she had not retained copies of the rosters compiled by the respondent but recalled a roster from 3 August and 30 September, 2015, consisting of a 5 day week, reasonable hours and normal pay .This only improved before she left the employment .She denied seeking her position back with the respondent the week before the hearing .She also denied seeking loans from him.

On February 1, 2017 , in response to the final submission received from the respondent, the complainant submitted a screenshot of a report from revenue covering her employment period at the centre of this case .It did not purport to being a P60 but was stamped by Revenue dated 14 December 2016.It recorded her earnings 2013-2015 .

22 April 2013-21 April 2014 €3,488.01 before statutory deductions by the respondent

15 June 2014-5 October 2014 €3,851 before statutory deductions by the respondent

29 June 2015- 30 June 2015 €527.25   before statutory deductions by a different respondent.

Respondent’s Submission and Presentation:

On Day 1 of the hearing, the respondent did not attend the hearing. During a phone conversation to follow up his non attendance, he stated that he had not been notified of the hearing and he was no longer at the business premises address .He refused to attend on the day , but stated he wished to have an opportunity to respond to the claims .

The respondent submitted his response at the resumed hearing in the case. He disputed all the claims.

He submitted that he was a sole trader who had ceased trading when his lease expired in January 2015 and the business was sold to two named persons. He closed the business for one week at that time. He told the hearing that the complainant commenced work in August 2013 and left on 21 April 2014. She resumed work on 15 June 2014 until 5 October 2014 when she “quit herself “. He contended that the complainant received a copy of a statement of her terms of employment and submitted a template as proof. Two P45s were raised and issued to the complainant to cover the cessation of employment. The complainant was replaced by a colleague working at the facility, who was given more hours.

The complainant worked 18-19 hours per week, as her hours were small, the prsi commitment was minimal .She was paid the minimum wage and he transferred €300 to her account when she took a holiday during 2014. The respondent submitted that the complainant had approached him for a €2,000 loan in 2016 and he had refused.

The respondent paid €1 extra per Sunday in line with market comparators and employees were given a half day off if not working and double time if rostered on a Public holiday .The respondent disputed that he was absent from the business and confirmed that he was “ always there” ..

In response to the complainant representative questions, the respondent confirmed that he had also sold a separate business in the city.

The respondent outlined that on 14 December 2014, he informed the staff that the business was loss making and it was to close on 5 January 2015. He submitted that the complainant had left her employment by then. The business was also subject to a NERA inspection in November 2014 and the complainant was not on the staff at that time. .In June 2015, the respondent approached the new owner of the business for staff for his business in the city. He submitted that he did not believe that the complainant was employed there at that time.

In response to questions from the complainant’s representative, the respondent disputed the application of a transfer of undertakings in the case .He re-affirmed that the two P45s were issue to the complainant on her cessation of work.

The respondent submitted a copy of P35 L for 2013 and 2014 .This displayed that the complainant worked 36 insurable weeks in 2013 and 32 insurable weeks in 2014.

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.

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. , Section 24 of the National Minimum Wage Act, 2000, Section 27 of the Organisation of Working Time Act 1997, Section 7 of the Terms of Employment ( Information) Act ,1994 , and Section 39 of the Redundancy Payments Act 1969 all require that I also make a decision in relation to the complaints .

I have listened carefully to the submissions as advanced by both parties. It was regrettable having to reconvene the hearing, however, I accepted that the respondent had not been placed on proper notice of the hearing, wished to respond to the claims and the complainant agreed to the second day of hearing .I reconvened the hearing on that basis. The respondent submitted a final written submission on 7 December 2016, which was reviewed by the complainant and a final response received on February 1, 2017.

From the outset of my deliberations in this case. I was struck by the lack of supporting paper work or witnesses in the case. Neither party submitted the WRC Inspectorate report in evidence .The complainant presented one pay slip. The respondent presented 6 Pay slips and some latter day generated P35L forms.

On the first day of hearing, the complainant presented as very traumatised by her experiences at work. She gave a stark account of being the target of unwelcome advances in the final days of her employment .I sought to establish the record of employment and this was determined by the complainant as being continuous to 31 October 2015, outside a two month break in 2014.

On the second day of hearing, the complainant presented in a markedly different way, I was conscious that she may have been overwhelmed at having to face an employer she had given evidence against .However, I found the complainant to be evasive and inconsistent in the detail that she had submitted on the first day of hearing. I permitted a break to allow her time in the company of her representative during the hearing to gather her thoughts.

In considering this case, I was mindful of the complainant’s status as an economic migrant and this position was her first position in Ireland. It was clear that she had an unpleasant work experience which was in contrast to her present job in the hotel industry.

I have to determine whether the complainant has the locus standi to advance her claims in the face of the respondent evidence that she had not worked for the respondent business from 2014 onwards.

The Law:

Section 41. (4) of the Workplace Relations Act 2005 provides that :

 The Director General shall refer for adjudication by an adjudication officer a complaint or dispute referred to him or her under paragraph (b) of subsection (3) of Section 42 by the Labour Court.

(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

(I) be heard by the adjudication officer, and

(II) present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision in writing.

1. subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
2. subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if-

(d) in the case of a dispute relating to the entitlement of an employee under the National Minimum Wage Act ,2000, it has been referred to the Director General after the expiration of the period of 6 months beginning on—

(i) the date on which the employee obtains a statement of his or her average hourly rate of pay in respect of the relevant pay reference period in accordance with section 23 of that Act,

(ii) in circumstances where that statement is not provided having been requested by the employee to be provided to him or her, the day after the date of expiration of the time within which that statement was required to be provided by the employer in accordance with that section, or

(iii) in the case of a dispute to which section 25 of that Act applies, the date on which the employee’s hours of work were reduced or alleged to have been reduced,

S 41 (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The complainant submitted her complaint to the WRC on 11 March 2016. The evidence of the complainant pointed to a continuous period of employment from July 1 2013-31 October 2015 with two break periods in 2014 June and Xmas time . The respondent told Day 2 of the hearing that he sold the business and ceased his lease early in 2015 and he did not inform the complainant as she was not on the staff at the time .I have considered these two perspectives .

While I am totally dissatisfied by the random management approach adopted by the respondent in his employment of the complainant .I find in the absence of any documentary evidence or witness statements that on the balance of probabilities the respondent did employ the complainant up until October 2014. I note that the payslip presented by both parties dated 5 October 2014 had provision for:

1 Rate of pay €8.65

2 Hours 18

3 Insurable Weeks 16

This corresponds with the complainant’s evidence of returning to work post her break in 2014

While I accept that a P45 is not a complete determinate of cessation of employment .I find that the complainant herself accepted that she was not present in the business during the change of business in 2014/ 2015 and this worked to her detriment . I accept that the respondent gave an extraordinary account of being aligned to a multitude of businesses at the same time and this obviously confused the complainant .However, the complainant’s tax documentation confirmed a variation in the named employer in 2015. There are no material documents before me linking the complainant to the respondent business past October 2014.

I must therefore address this case on the following service basis; I find that the complainant was employed by the respondent from July 2013 to October 2014 with a break of two months April to June 2014. I must conclude that when the complainant returned to the premises to work in 2015, it was by then in different ownership. This should of course have been notified to the complainant and I note this level of disregard and disrespect directed towards her .

CA 00003141-001 Section 24 National Minimum Wage Act, 2000.

The complainant submits that contrary to S14 of the Act, that she was not paid the statutory minimum wage as determined by the Minister in accordance with the Act. The respondent disputed this relying on the wage slip of October 2014. [

Section 24 of the Act provides:

The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee ’s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under Section 41 of the Workplace Relations Act 2015]—

( a) unless the employee—

(i) has obtained under Section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

( b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33 or 34, or

(ii) prosecuted for an offence under Section 35 .

The complainant had not submitted a request under Section 23 of the Act .While there was mention of a request for a WRC inspection on the initial acknowledgement form, neither party submitted details of this . I find that I lack jurisdiction to consider this complaint given the absence of a Section 23 request .I note the undisputed reference to the minimum wage paid on 5 October 2014 .

2 CA -00003141-002 Organisation of Working Time Act 1997 ( Sunday Pay )

The complainant submitted that that the respondent infringed Section 14 of the Act, which makes a general provision that employees who are required to work on a Sunday should be compensated. The respondent submitted that he paid a €1 extra per hour in line with market norms.

I have considered the evidence of the parties and I find that given my findings on the duration of employment. The claim is outside the statutory time limits provided for in S. 41(6) and by extension on reasonable causes 41(8) of the Workplace Relations Act, 2015.

3 CA-00003141-003 (Annual Leave)

The complainant submitted that she had not been paid during her holidays in accordance with Section 20/21 of the Act while employed by the respondent .The respondent did not have records of annual leave for his business.

I have considered the evidence of the parties, and I find that given my findings on the duration of employment , the claim is outside the statutory time limits provided for in S. 41(6) and by extension on reasonable cause,S 41(8) of the Workplace Relations Act ,2015

4 CA-00003141-004 (Public Holidays)

The complainant submitted that she was not paid extra for public holidays, nor was she compensated by a day off. The respondent submitted that he recognised and applied either extra pay or time off in the case of public holidays.

I have considered the evidence of the parties, and I find that , given my findings on the duration of employment , the claim is outside the statutory time limits provided for in S. 41(6) and by extension on reasonable causes 41(8) of the Workplace Relations Act ,2015

5 CA-00003141-005 (Annual Leave)

This is a duplicate of CA -00003141-003 (Annual Leave)

I issue the same finding in that regard.

6 CA -00003141-006 (Public Holidays)

This is a duplicate of CA-00003141-004

I issue the same findings in that regard.

7 CA-00003141-007 Terms of Employment (Information) Act 1994

The complainant submitted that she had not been provided with a statement in writing on her terms of employment .The respondent submitted that he had issued it and submitted a template of such an issue .

Section 3 (5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.  

I have considered the evidence of the parties and I find that a continuous and repeated breach occurred in the application of Section 3 of the Act by the respondent which permits me to address this complaint. I accept that the complainant repeatedly sought this document and I accept that it was not furnished .I find the evidence of the respondent utterly implausible in this regard. It is of note that had the statutory document been issued in real time, it may have gone a long way towards clarity for the complainant, a first time resident and worker in Ireland. I order the respondent to pay the complainant compensation of 4 week s pay, €1 000.00.

8 CA -00003141-008 Unfair Dismissal Act 1977-2007

The complainant gave evidence in support of a constructive dismissal citing 31 October 2015 as her date of leaving .The respondent disputed her standing as an employee of his business on that date

I have considered the evidence of the parties and I find that the complainant was not employed by the respondent on 31 October 2015. I find that the complainant has cited an incorrect respondent and does not have the locus standi on which to ground her complaint.

9 CA -00003141-009 Redundancy Payments Act 1967

The complainant submitted that she had been denied a redundancy payment on the basis that her employer had not paid PRSI payments for her. The respondent denied the claim.

I have considered both parties presentations on this complaint and I find that the complainant does not have the 104 weeks requisite service under the Act on which to ground a claim .I find the complaint to be not well founded.

Patsy Doyle, Adjudicator.

Dated:   10/04/2017