ADJUDICATION OFFICER DECISIONS

Adjudication Decision Reference: ADJ-00003655

Complaints for Resolution:

Date of Adjudication Hearing: 3rd January 2017 and 14th February 2017.

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015, Section 7 of the Terms of Employment (Information) Act 1994, Section 6 of the Payment of Wages Act 1991, Section 27 of the Organisation of Working Time Act 1997 and following the referral of the complaint 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 submitting that the Respondent was in breach of her rights and entitlement under (a) the Terms of Employment (Information) Act 1994, (b) the Payment of Wages 1991 and (c) the Organisation of Working Time Act 1997 and the Respondent was denying the complaints.

The Complainant was employed by the Respondent from 1^st April 2015 to either 3^rd or 9^th January 2016 and her rate of pay was €575.35c gross per week and €400.00c nett (€30,000.00c per annum).

Attendance at Hearing:

Complainant’s Submission and Presentation:

The Complainant was submitting that the Respondent was in breach of her rights and entitlements under the 3 Acts and she submitted the following in that respect.

Terms of Employment (Information) Act 1994.                                                                                          

The Complainant said she had never been provided by the Respondent with a written statement of the particulars of her terms and conditions of Employment in accordance with the provisions of the 1994 Act and she sought redress in accordance with the provisions of the 1994 Act.

The Complainant denied that she had been made aware that she could request a written statement of the particulars of her terms and conditions of employment from the external provider.

Payment of Wages Act 1991.          

The Complainant submitted that the Respondent was in breach of her rights and entitlements under the 1991 Act in the following respect:

1.    The Complainant said that her employment with the Respondent was terminated by them without notice and she said that accordingly and based on her level of service she was entitled to one week of notice or pay-in-lieu of such notice in the nett sum of €400.00c but that she did not receive such payment and she sought a decision that she was entitled to €400.00c in that respect.

The Complainant denied the Respondent’s evidence in relation to the closure of the Hotel.   She said that she had been verbally instructed on the telephone by the Respondent to close the Hotel.

2. The Complainant submitted that she was paid €200.00c less than the wages she was entitled to December 2015.   She said that in addition she was not paid for 1^st, 2^nd, 3^rd and 4^th January 2016.   This she said gave her a total of €520 of unpaid wages.   She said that however she made purchases for the Hotel amounting to €167.24c for which she was unfortunately unable to locate receipts and she is willing to have this offset against wages owing to her leaving a balance of €352.76c due to her.

The Complainant sought that her complaints under the 1991 Act be upheld and that the Respondent be instructed to pay her the sum of €752.76c in respect of her complaints under the 1991 Act.

Organisation of Working Time Act 1997.                                                                                                         

The Complainant said the Respondent was in breach of her rights and entitlements under the 1997 Act in the following respect:

1. The Complainant submitted she did not receive her entitlements under the 1997 Act in relation to public holidays.   The Complainant said that she worked all public holidays during her employment with the Respondent and that she received none of the entitlements under Sections 21 and 22 of the 1997 Act in that respect.  

Following a short discussion the Complainant accepted that there were 3 public holidays, Christmas Day, St. Stephen’s Day and New Year’s Day, in the relevant period under consideration for the purposes of the complaints, i.e. the 6 month period prior to receipt of the complaint (from 31^st November 2015 to the date the employment terminated).

2. The Complainant submitted that she did not receive her full annual leave entitlements in accordance with the provisions of the 1997 Act.

Initially the Complainant said that she had worked more than 1365 hours during the period of her employment she was entitled to 4 weeks annual leave.   However in discussion the Complainant accepted that as she had only worked/being employed a period of 9 months for the Respondent her total annual leave entitlement was 3 weeks.

The Complainant said that she had received one week (5 days) of paid annual leave she had a balance of 2 weeks annual leave due to her.

In response to the submissions of the Respondent the Complainant emphatically denied that she had taken time of with pay as submitted by the Respondent and the Respondent’s Witness.

The Complainant sought that her complaints under the Act be upheld and that she be awarded redress in accordance with the provisions of the 1997 Act.

Also in response to the submissions by the Respondent and their Witness the Complainant denied in the strongest terms that she had closed down the Hotel of her own violation and she said that it would not make sense for her to close the Hotel of her own violation and deprive herself (and others) of a job.  

Summary of Respondent’s Position:

The Respondent said that the complaints in the instant case relates to 5 different complaints, 2 under Section 27 of the Organisation of Working Time Act 1997, 2 under Section 6 of the Payment of Wages Act 1991 and one under Section 7 of the Terms of Employment Act 1994.

The Respondent said that the Complainant commenced employment with them as General Manager on 1^st April 2015 and ended her employment on 3^rd January 2016, when she took it upon herself to shut down the Hotel and lay off all employees, supposedly paying them all their entitlements at that point in time.   The Respondent said that the Complainant confirmed doing this in an email on 3^rd January 2016 (copy submitted to the Hearing).     The Complainant rate of pay was €400.00c per week.

Terms of Employment (Information) Act 1994.                                                                                         

The Respondent said the Complainant is claiming that she did not receive a written contract of employment.   The Respondent said that prior to the Complainant being hired, emails were exchanged outlining to her brief terms and conditions of employment that contained such matters as starting times, remuneration and place of work and outlining the opportunity that she would receive a share of the profits by way of an incentive bonus.

The Respondent said that while they now recognise that this may not have been the correct protocol as defined under the 1994 Act, the Complainant was happy to work under those conditions.   The Respondent said the Complainant was also made aware that the Respondent uses the services of an external HR Company for drafting documents such as Contracts of Employment, Employee Handbooks and any other correspondence in respect of employer/employee relations and despite the fact that she was aware of this service she never used it.  

The Respondent said the Complainant did make contact with the external provider and received contracts of employment for other employees that she managed and therefore she was well aware of her right to receive an employment contract herself and at no time did she ever request one.   The Respondent said that the fact was that she had sight of all other employees’ contracts and the Employee Handbook.  

The Respondent said that they in their naivety believed that the Complainant was managing all of these activities for all of the employees as they had done in previous years.   They said that they had gone to great lengths to ensure that all employees have their terms and conditions of employment in the appropriate format and at the appropriate time.  

The Respondent said that in summary they accept that the offer of the job could have been presented differently and only that.

Payment of Wages Act 1991.                                                                                                                             

The Respondent said that in relation to the complaints under this Act that the Complainant states that she is owed one weeks pay in lieu of notice.   The Respondent said that in that respect to this that the business was closed by the Complainant on 3^rd January without authorisation.     The Respondent said that it is recognised practice that an employee always gets paid their notice period, but one of the criteria for receiving is that you must either work it or by agreement with the Respondent you may be paid in lieu of notice.   However in this case the Respondent never authorised the closure and the Complainant therefore refused to work beyond 3^rd January 2016 and therefore she does not qualify for any notice period payments.

The Respondent said that in relation to the alleged non-payment of wages the Complainant is claiming as follows:

• She was left short €200 in her final pay

• That she was not paid for 1^st, 2^nd, 3^rd and 4^th January     - and-

• She was offsetting €167 for purchases she made for the Hotel.

The Respondent said this gives a nett claim of €352.00c.   The Respondent repeated that the Complainant was paid €400.00c per week for her time and reiterated that she made those payments to herself.   On week ending 27^th December 2015 the Complainant paid herself €500.00c in cash and on week ending 3^rd January 2015 she paid herself €300.00c in cash; the Respondent said that this is an average of €500.00c for those two weeks and means there is no shortfall in her wages for that period.

Organisation of Working Time Act 1997.                                                                                                          

The Respondent said in her first claim under this Act the Complainant is claiming that she did not receive her correct Public Holiday Entitlement.   The Respondent said that they have examined their records for the last 6 months the Complainant worked with them and they said that in that period they are 5 public holidays, i.e. 3^rd August 2015, 26^th October 2015, 25^th December 2015, 26^th December 2015 and 1^st January 2016.  

In respect of 3^rd August the Respondent said from the pay statement for that period it is evident the Complainant was paid her full agreed pay including that Public Holiday and that she was not rostered to work on 3^rd August 2015 and therefore was not entitled to any additional pay for that day.

In relation 26^th October 2015, again the pay statement for that period showed the Complainant was paid her full pay for that week and again there is no record of her working on 26^th October and therefore she is not entitled to any additional pay for that day.

In relation to 25^th December 2015, the pay statement shows that the Complainant was paid €500.00c for that week (i.e. more than her agreed weekly rate of pay).   The Hotel was closed for Christmas Day and therefore the Complainant is not entitled to any additional payment for that Public Holiday.

In relation to 26^th December 2015, and 1^st January 2016 on examination of her pay statement for that period it is evident that the Complainant was paid for those public holiday.

The Respondent said that it is evident that the Complainant has been paid for all of her public holidays in the relevant period.

In relation to annual leave the Respondent said that under normal circumstances the Complainant would have been entitled to 3 weeks or 15 days paid annual leave for the period of her employment with them.   The Respondent said that the Complainant was in charge of timekeeping for all employees under her management and for herself.   She decided when holidays were taken and was organised appropriate payments at the appropriate time.   The Respondent said that in relation to the Complainant they do know that she was off work for extended periods of time as follows:

In May 2015 the Complainant took 5 days off for personal reasons.   On 2^nd July, the Respondent received a text from the Complainant stating that she was off work sick and she took a further 5 days off work   The Respondent said they do not pay sick pay, yet the Complainant continued to pay herself while reporting off work sick.   The Respondent said they can only conclude that the Complainant took holiday time.   The Respondent said that on 3^rd September, 3 employees contacted them stating the Complainant had not been to work for a total of 8 days and again the Complainant continued to pay herself for these days and she has never medically justified to them.   The Respondent said that again on 1^st October 2015 they again received a text from the Complainant stating she was on her way to her doctor with another complaint, which they said has never been medically certified to them.   In a further text on 1^st October 2015 the Complainant said she had an appointment arranged with a specialist for 12^th October 2015.   On 12^th October 2015, the Complainant informed the Respondent that she was just back from the Camino and that she was on the way to the appointment and she returned to work on 16^th October 2015.   Again the Complainant was absent from work for a period of 11 days and the Respondent suggested that she was on holidays in the Camino for that period.   The Respondent said that these patterns of absences continued into November and at no point did the Respondent receive any medical notification of what her medical issues were, so in the absence of such notification and the fact that she continued to pay herself for these period, despite the fact that Respondent Policy is that there is no sick pay, the Respondent concludes that the Complainant has been paid for all time off work that she took and they believe these to be holidays as opposed to sick leave.   The Respondent said that after all the Complainant controlled the entire holiday roster for the Hotel.

The Respondent said they have a statement from a named Supervisor that categorically states that the Complainant took an enormous amount of time off work and stated she was asked by the Complainant to say nothing about it.   The Respondent said that the Supervisor was present at the Hearing and could give direct evidence and answer any questions.

The Respondent made submissions about the closure of the Hotel and they quoted from an email sent by the Complainant in that respect.

The Respondent said that the Complainant was given entire autonomy by them to run the Hotel on their behalf and they said the opposite happened.   The Respondent said that they believe that the Complainant deliberately shut the Hotel.

Witness 1.     A Witness gave evidence on behalf of the Respondent.   The Witness said she was a Supervisor in the Respondent Hotel and she had been employed there for 5 years.   The Witness gave evidence that supported the Respondent’s submissions in relation to the Complainant’s alleged absences from work and the closure of the Hotel.

Based on the foregoing the Respondent said that all of the Complainant’s complaints under the 3 Acts were not well founded and they should all be rejected.

Findings and Decision:

Section 41 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 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint in accordance with the relevant provisions under the same Section of the 1994 Act.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the same Section of the 1991 Act.  

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the same Section of the 1997 Act.

I have carefully considered the evidence and the submissions of the parties and I have concluded as follows.

The following are my findings and decisions in relation to the specific complaints submitted under the 3 Acts.

 Terms of Employment (Information) Act 1994: CA: 00004944-005:                                                      .

It is not in dispute that the Respondent did not provide the Complainant with a written statement of the particulars of her terms and conditions of employment in accordance with the requirements of Section 3 of the 1994 Act.

I note that there is no requirement under the Act on the Complainant to request such a written statement from the Respondent.   In accordance with the provisions of the 1991 Act the obligation is entirely upon the Respondent to provide the written statement and clearly that obligation was not met by the Respondent.

Based on the foregoing I find and declare that the complaint under Section 7 of the 1994 Act in relation to Section 3 of the 1994 Act in respect of written statements is well founded and it is upheld.  

I have upheld the complaint and in accordance with Section 7(2) of the 1994 Act I require the Respondent to pay the Complainant compensation in the sum of €1,000.00c within 6 weeks of the date of this decision.

Payment of Wages Act 1991: CA-00004944-003 and CA-00004944-04:                                                   .                                                                                                                                         

  I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the two complaints under the 1991 Act:

1. Minimum Notice Payments: I note that while the Complainant states the Respondent told her to close down the Hotel, she did not state that the Respondent told her that her employment was terminated.   In accordance with the Minimum Notice Act 1973 notice must be certain and based on the Complainant’s own evidence she was not given certain notice.   In addition I cannot assume that because the Hotel was closing down that the Complainant’s employment was immediately being terminated.  

I further note that in her letter to the Respondent the Complainant states: “As you are aware, I will be on annual leave from Monday 4^th January 2016.”   This would mean the Complainant had booked and had agreed to take two weeks annual leave before the question of termination of employment and notice arose and accordingly the annual leave that was already booked would take place simultaneously with the minimum notice period.

Based on either or both of the foregoing there is no right to a minimum notice period and accordingly I find and declare that that element of the complaint is not well founded; it is rejected and is not upheld by me.

2. Unpaid Wages:   Based on the records and evidence submitted by the Respondent I have concluded on the balance of probabilities that the Complainant was in fact paid her wages for the dates in question she claims she was not paid for.   Accordingly I find and declare that the element of the complaints that refers to unpaid wages is not well founded; it is rejected and it is not upheld.

I have found and I declare that neither of the complaints under the 1991 Act are well founded; they are rejected and are not upheld.

Organisation of Working Time Act 1997: CA-00004944-001 and CA-00004944-002:                          

I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the specific complaints under the 1997 Act.  

1. Public Holidays: There were 3 public holidays in the relevant period, Christmas Day, St. Stephen’s Day and New Years Day.   Based on the records submitted by the Respondent, which I note were not contested by the Complainant, I am satisfied and I find that the Complainant received her proper and appropriate entitlements in relation to these 3 public holidays

I find and declare that the complaints under Section 27 of the 1997 Act in relation to public holiday entitlements in accordance with sections 21 and 22 of the 1997 Act are not well founded; they are rejected and are not upheld.

Annual Leave: It is not in dispute that the Complainant had accrued an entitlement of 3 weeks annual leave based on her 9 months service with the Respondent at the date of the termination of her employment with the Respondent.   Nor is it in dispute that the Complaint had receive one week of annual leave, leaving a balance of 2 weeks annual leave in question and in dispute.

The Respondent submits that the Complainant took a large amount of paid time off work (that submission is strongly denied by the Complainant) and that they are entitled to offset that against her annual leave due or consider it to be annual leave   This is not in accord with settled law in this respect as other leave such as sick leave, maternity leave etc etc cannot be considered to be annual leave.   In addition I note there is absolutely no suggestion by the Respondent that the Complainant either requested annual leave during those periods or that the Respondent before those absences or indeed after them at any stage during her employment proposed or suggested to the Complainant that such absences should be considered to be her annual leave (which at all events is not permissible in accordance with law) and no suggestions in that respect was made until the date of the Hearing.   I find the Respondent’s submissions in relation to alleged absences of the Complainant rather strange.   Despite being aware of the Complainant’s (alleged) lengthy absences they said or did nothing in relation to it, nor even raised it with the Complainant during her employment and these allegations were never raised until the date of the Hearing, one full year after the Complainant’s employment ended.

If in fact the Complainant did have the number of absences asserted by the Respondent, such absences cannot be offset against her accrued annual leave entitlements, which are separate from annual leave entitlements.

Based on the foregoing I find and declare that the complaint under Section 27 of the 1997 Act in relation to annual leave entitlements in accordance with the provisions of sections 19, 20 and 23 of the 1997 Act is well founded and it is upheld.

I note that the amount of annual leave due to the Complainant is 2 weeks, which based on her weekly rate of pay of €575.35c is €1,150.70c.  

I further note that Article 11 of the Council Directive 2002/15/EC states that “Member states shall lay down a system of penalties for breaches of the national provision adopted pursuant to this Directive and shall take all measures necessary to ensure that these penalties are applied.  The penalties thus provided shall be effective proportional and dissuasive.”

Taking into account the above and in accordance with the provisions of Section 27(3) of the 1997 Act I now require the Respondent to pay the Complainant compensation in the sum of €2,000.00c within 6 weeks of the date of this decision for breaches of her rights under sections 19, 20 and 23 of the 1997 Act.

Seán Reilly, Adjudication Officer.

Dated:   25^th April 2017