ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005607

Complaints and Dispute for Resolution:

Date of Adjudication Hearing: 19/01/2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, Section 6 of the Payment of Wages Act ,1991, Section 7 of the Terms of Employment( Information) Act 1994, Section 27 of the Organisation of Working Time Act , 1997 and Section 13 of the Industrial Relations Act ,1969,following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute

                                   A Cleaning operative V A Cleaning Company

Complainant’s Submission and Presentation:

The complainant commenced work as a cleaning operative with the respondent on a 15 hour week on 6 August 2011. She submitted that she was paid €9.50 per hour .Her case concerned   non payment for annual leave, public holidays, and annual leave while on sick leave and the lack of provision of a written statement of terms of employment.

The Union also submitted that a Dispute had arisen between the parties given the attempts made to resolve the claimant’s difficulties which were ignored by the respondent.

The complainant told the hearing that she was one of two cleaners placed in a large store; she had been on sick leave since August 2015 and had difficulty securing illness benefit from the Department of Social Protection as the respondent refused to sign the necessary documentation in support of her application .She had just recently secured the payment.

On 26 May 2016, the Union wrote to the respondent outlining her claim for

1 Annual Leave and payment for Public Holiday

2 Sunday Premium for 10 hrs

3 Rectification of no written terms of employment

The Union contended that the complainant was owed €3,163.50 by the respondent.

The respondent made an undetailed payment of €393.30 to the complainant on 14 June 2016.The Union wrote to the respondent again on 29 July 2016 seeking the outstanding €2,770. There was no response to the second letter and the complainant referred her complaints and dispute to the WRC on 25 October, 2016

Respondent’s Submission and Presentation:

There was no appearance on or behalf of the respondent at the hearing.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and dispute in accordance with the relevant redress provisions under Schedule 6 of that Act. I am satisfied that the respondent was properly notified of the substance of the claim and time , date and location of the hearing . There was no appearance on or on behalf of the respondent on the day of hearing . I allowed a reasonable waiting period to cover eventualities and starte the hearing at 11.45 am .

1 CA -00007796-001

The Payment of Wages Act complaint was withdrawn at hearing.

2 CA-00007796-002 Terms and Conditions of Employment

I was unable to obtain collateral from the respondent in either oral or written format. I asked the complainant whether the rate of €9.50 per hour had been a variable figure from the commencement of employment. She stated that the rate had remained constant at €9.50 per hour from her commencement date; she told the hearing that she had never received an explanation on the composition of the rate.

Written statement of terms of employment.

3

3. — (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

I accept that Section 41(6) of the Workplace Relations Act 2015 limits my jurisdiction to 6 of the alleged contravention of the Act, with 12 months on reasonable cause. However, the contention here is in regard to a continuing breach of the Act from August 2011.

Taking the uncontested evidence of the complainant into account, I find the complaint to be well founded and I order the respondent to pay the complainant €570.00 as a just and equitable compensation for the breach of Section 3.

3 CA-00007796-003 Organisation of Working Time Act complaints

I have listened carefully to the complainant’s account of not receiving pay for Public Holidays, or Sunday premium. She submitted that she had not received a payment during annual leave or any annual leave during her period of illness.

Section 41(6) of the Workplace Relations Act 2015 limits my jurisdiction in this case.

(6) Subject to 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.

The complainant contended that the alleged breach relating to annual leave, public holidays and Sunday premia had its roots from 2011, this is outside the statutory time limit.

In the case of the claim for annual leave during sick leave, I refer to section 19(1) (a) of the Act.

Section 19 1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was —

(a) at his or her place of work or at his or her employer ’ s disposal, and

(b) carrying on or performing the activities or duties of his or her work.

I considered a copy of the Intermediate social welfare certificate submitted to the respondent. This cert was dated August 2015 and the complainant told the hearing that she had submitted a succession of these certs up to the present day. This allows her to avail of the provisions of section 19(1) (a) of the Act and I find that this aspect of the complaint to be well founded. I award the sum of €570.00 is respect of this breach of the Act.

4 Recommendation CA-00007796-004 Industrial Relations Dispute.

I was unable to establish the background to this dispute from the respondent’s perspective. Therefore, I was unable to canvas views on how resolution might be addressed.

I listened to the Union on this aspect of the claim. The Union on behalf of the claimant submitted that they had sought to raise a grievance to resolve employment rights issues on two occasions in 2016. The respondent had refused to engage and this constituted a Dispute under the Act. The Union had not received an explanation or breakdown of the payment of €393.30 figure on 14 June 2016.

In coming to my recommendation, I considered the parameters of Statutory Instrument 146/2000 Code of Practice on Grievance and Disciplinary Procedures

The code contains general guidelines on the application of grievance procedures and the promotion of best practice in giving effect to such procedures.

“ Apart from considerations of equity and natural justice, the maintenance of good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed “

The code goes on to state that these procedures should be in writing and management should be aware of the procedures and adhere to them. I have accepted the claimant’s uncontested position that she did not have access to a grievance procedure in the workplace.

In this case, I find that the claimant was excluded from a fair disputes resolution framework when the respondent did not engage in or respond to the Unions letters in 2016.

I recommend that the parties engage on the management of the claimant’s sick leave. I am concerned that an employer would not respond to workers claims in respect of employment rights. I am further concerned that the same respondent did not engage with the statutory body of the WRC in respect of this claim. It would have helped me a lot to have heard from both parties, and I award €2,000 in compensation for the exclusion and distress caused to the claimant.

Dated:   27^th April 2017