ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003588

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

Date of Adjudication Hearing: 4/10/2016 and 28/11/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

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. 

Background:

The Complainant commenced employment with the Respondent in July 2014.

For the first four months of his employment, the Complainant worked in the Respondent's restaurant following which he then worked in the retail shop, which was also owned by the Respondent.

The Complainant went on annual leave on 29 September 2015 and was due to return to work on 29 October 2015.

Complainant’s Submission and Presentation:

In his submission to the hearing, the Complainant's legal representative stated that the Respondent did not provide the Complainant with work following his return from annual leave in October 2015. It was stated on behalf of the Complainant that he received his last payslip on 21 August 2015, which included his wages up to the end of October 2015.

The Complainant contends that his contract of employment continues and the Respondent has an obligation to pay him on that basis.

Respondent’s Submission and Presentation:

The Respondent submitted that the Complainant's contract of employment terminated on 23 October 2015, on the basis that they no longer had work for him on a full-time basis. The Respondent submitted that they were willing to provide the Respondent with part-time hours when work was available.

Considerations and Findings:

This proved to be difficult and complex case due to the lack of precise and detailed information pertaining to the Complainant's complaint and his employment with the Respondent.

The original hearing took place on 4 October 2016 during which the Respondent submitted evidence by way of a large volume of payslips pertaining to the Complainant’s employment. Given that the material presented was incomplete and contained payslips from three separate businesses, all of which are owned by the Respondent, and from which the Complainant appears to have been paid over different periods, it was particularly difficult to carry out proper analysis of the evidence.

Consequently, I requested a second hearing in order to seek clarification in relation to certain elements of the evidence and submissions presented at the initial hearing. The Respondent did not attend the second hearing. However, it was possible, from the submissions made by the Complainant's legal representative, at the second hearing, to obtain sufficient clarification to allow me to consider the evidence and make my decision.

I am satisfied that, from the evidence presented, the Complainant worked for the Respondent from 31 July 2014 up to and including 23 October 2015, at which point it would appear the Respondent terminated his contract. This conclusion is based on the submission by the Respondent of Part 2 of a P45 for the Complainant which shows the employment ceased on 23 October 2015. However, from the evidence adduced at the hearings, I am satisfied that the Complainant never received this document.

It appears from the evidence that, in terminating the Complainant's employment, the Respondent relied on a clause in the Complainant's contract of employment, whereby the Respondent reserves the right to lay the Complainant off from work or reduce his working hours where, in circumstances beyond its control the Respondent was unable to maintain the employee in full-time employment.

There was significant confusion in relation to the contract of employment. Firstly, the Respondent presented to different versions of the contract of employment. Secondly, neither version of the contract was signed by either the employee or the employer.

However, notwithstanding the above, the evidence clearly shows that the Complainant was in full-time employment with the Respondent up to his going on annual leave on 29 September 2015. The evidence also shows that the Complainant was paid up to 23 October 2015.

The evidence presented further indicates that while the Complainant was on annual leave, the Respondent appears to have taken the decision to terminate his full-time employment arrangement and to provide work on a part-time basis, if and when it arose.

Evidence presented at the hearing suggests that, with the exception of one face-to-face meeting, the date of which neither party were able to clarify, most of the communication between the parties took place by way of text messages. Insofar as it was possible to glean from the chain of text messages presented in evidence, it would appear that this communication took place during the months of November and December 2015.

Based on the above evidence, I am satisfied that by the end of December 2015 it was clear to the Complainant that his full-time contract with the Respondent had ceased and that further employment would only be offered when it was available. This view was further confirmed by the fact that the Complainant's legal representative engaged in correspondence, in early January 2016, with the Respondent seeking arrears of salary which were due to the Complainant.

While this correspondence also states that the Complainant's employment contract continued, it is clear, from an analysis of text messages that went between the parties during November and December 2015, that the Complainant’s working arrangements had changed from full-time to part-time employment. It is also clear from this evidence that the Complainant did not accept or engage in any further work for the Respondent.

Consequently, taking all the above into consideration, I find, based on the unsatisfactory handling and communication of the termination of the Complainant's full-time contract by the Respondent, that the Complainant is entitled to salary arrears up to the end of December 2015. I do not find that the Complainant has a reasonable claim for unpaid wages after 31 December 2015.

The period from 26 October 2015 to 31 December 2015 consists of 10 weeks at a weekly rate of€380.00, which gives to total of€3,800.00 in unpaid wages due to the Complainant.

In addition to his complaint for unpaid wages, the Complainant also made a claim under the Organisation of Working Time Act, 1997, for public holidays which he alleged were due to him. As there were three public holidays in the compensation period (i.e. 26 October 2015 to 31 December 2015), this amounts to a further €228.00 due to the Complainant by way of his public holiday entitlement.

The Complainant also claimed that the Respondent had agreed to pay him €1,500.00 in respect of his annual leave entitlement up to the point of his taking annual leave in October 2015. Evidence presented at the hearing showed that a payment of €700.00 was made by the Respondent in this regard, thus leaving a balance owed to the Complainant of €800.00.

Finally, the Complainant also made a claim under the National Minimum Wage Act, 2000. From the evidence presented, it is clear that this claim related solely to the outstanding wages for the period during which the Complainant had not worked (i.e. post 23 October 2015) The calculation set out above in relation to unpaid wages is calculated on the basis of the minimum wage rate. I am further satisfied that, during his employment with the Respondent, the Complainant was in receipt of the national minimum wage at all times.

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.

Having carefully considered all of the evidence adduced and based on the considerations and findings as set out above, I make the following decisions in relation to the respective claims:

1. CA-00003863-001

With regard to the Complainant's complaint under the National Minimum Wage Act, 2000, I find that the complaint is not upheld.

1. CA-00003863-002:

With regard to the Complainant's complaint under the Organisation of Working Time Act, 1997, I find in the Complainant's favour and direct that he be paid for 3 public holidays, in the sum of €228.00 for the period 26 October 2015 to 31 December 2015.

In addition, I find that the Complainant is also due €800.00, being the balance of his annual leave entitlement for 2014/2015.

Consequently, in relation to this complaint I find in the complainant's favour in the total sum of €1,028.00

1. CA00003863-005:

With regard to the Complainant's complaint under the National Minimum Wage Act, 2000, I find in his favour and direct that he be paid the sum of €3,800.00, in respect of unpaid wages for the period 26 October 2015 to 31 December 2015.

In conclusion, I find the Complainant's favour to the total sum of€4,828.00 covering all his complaints.

Dated:   18^th April 2017