ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002012

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

Date of Adjudication Hearing: 16/11/2016 and 15/11/2016

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Act, 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). The parties were first invited to a Hearing on May 16^th 2016 where the Complainant and her Representative attended and the case was submitted on their behalf. The Respondent was not present. On May 18^th 2016 the Solicitor for the Respondent attended at the location of WRC Hearings and met the Adjudicator and apologised for their absence on May 16^th which they stated was due to a diary error in their office and asked for a further Hearing. This request was communicated formally to the WRC in writing by the Solicitor for the Respondent on May 26^th 2016, including an offer to pay for any extra costs or expenses involved in attending a second Hearing, if granted. The Complainants representative was contacted for their view on attending a further Hearing. The Complainants Representative was against a further Hearing. Having considered the situation the Adjudicator felt that to ensure fair legal process a second Hearing would be scheduled. The Complainants Representative attended this Hearing, under protest, but neither the Respondent or their Representative attended. 

Complainant’s Submission and Presentation:

The claim under the Terms of Employment (Information ) Act is that our member was not issued a Written Terms and Conditions of Employment within the specified time and subsequently the so called “ contract of employment“ issued by the employer did not fulfil the criteria under the act .

The claims under Organisation of Working Time Act are as follow:

1. Failure to pay Sunday Premium

2. Failure to provide for Public Holidays

3. Failure to remunerate The Complainant for her outstanding Annual Leave due at the time of her resignation

4. Failure to provide hours of work to The Complainant at her last date of employment

Terms of Employment (Information) Act Case

The Complainant began her employment with the Respondent on 6^th November 2014. The Complainant did not receive her written Terms of Employment within the 2 months as specified by the Act, Section 3. The Complainant enquired about her Written Terms of Employment on 27^th January 2016 in a form of an email (Appendix 2 ). The Complainant received Written Terms and Conditions of Employment on 27^th January 2016 (appendix 3&4), however the Written Terms and Conditions of Employment did not reflect the custom and practice in the work place at the time and they were not signed nor dated as it is the statutory requirement under the Act, section 3.4 of the Act. The Complainant wrote back to the employer acknowledging the email which contained “the Contract” but raised the points of the “ contract” not being signed nor dated and not reflective of the custom & practice (appendix 5 ).

Organisation of Working Time Act

Sunday Premium

The Complainant during her employment with the Respondent was in receipt of an hourly rate reflective of the minimum wage at the time. Throughout her employment she had worked Sundays as per her normal working week, however she was not receiving any Sunday Premium , which is clear contravention of the Act, Section 14 . The Complainant enquired about her Sunday Premium with the employer on the 4/2/2016.

Public Holiday

The Complainant worked on 28^th December 2016 which was a Public Holiday, however she was not remunerated for working on that day as per the Act, Section 22.She was paid only a flat rate. The Complainant enquired about her Public Holidays entitlements on 27^th December 2015, 27^th January 2016 and 4^th February2016.

Annual leave

The Complainant’s relationship with the company ended on 2^nd March 2016. At that point the employer under the provisions of the Act , Section 23 was required to compensate The Complainant for any unused holiday entitlement. Implicit within this statutory requirement there exists an obligation on the employer to identify to the worker the amount of holiday pay due as part of cessar pay. The Complainant during her employment enquired about her holiday entitlement and it was identified to The Complainant on 27^th January 2016 that she was due 23.96 hrs (Appendix 3) . The Complainant did not take any of the identified holidays and also accrued additional holiday entitlement for the period up to 2^nd March 2016. The Complainant has not received any compensation for the unused holiday.

Zero hours working practices

The Complainant on the last week of her employment was due to come in to work for 1 day only that week,on Saturday 27 February 2016 . However less than 24 hrs before the shift was due the hours have been cancelled without any explanation. Thus section 18 of the Act provides an entitlement that where a worker makes himself or herself available for work but is not required to work to be compensated for the time the worker made himself or herself available.

The Complainant was employed with the Respondent from 6^th November 2014 to 2^nd March 2016. During her employment the employer failed to comply with statutory provisions under Terms of Employment Act and Organisation of Working Time Act.

In doing so, the employer showed absolute ignorance and contempt to the Letter and Spirit of the law. When The Complainant enquired about her basic entitlements provided by both Acts, she was invited under false pretence to the meeting to discuss her entitlements. At the meeting she faced accusations, verbal abuse and intimidation in effort to stop The Complainant to enquire about her basic entitlements. At that meeting she was handed 2 warnings with the intention to intimidate The Complainant.

Under Terms of Employment (Information) Act the employer failed to provide the written statements of employment within 2 months and subsequently failed to issue written terms and conditions of employment in compliance with the Act. Therefore we would request that if our claim is well founded the Adjudicator awards The Complainant maximum compensation under the act of 4 weeks remuneration based on average week of €125.32

Under Organisation of Working Time Act as per section 25 (4) the obligation rests with employer to provide necessary records to show that the requirements of the legislations were met. We were able to demonstrate that the employer failed to discharge its obligation under the Act.

In relation to Sunday premium we would rely on Rights Commissioner Decision WT72327/08/MR where the Rights Commissioner acknowledged that within Hospitality and Leisure sector time and a half was the appropriate rate for Sunday Premium.

In terms of Annual Leave, Public Holidays and Zero Hours Working Practices we request that our complaint is well founded and appropriate compensation awarded to our member.

Should the Adjudication Officer determine that the employer has not met its obligation under Organisation of Working Time Act we would contend that the principles established by the Von Colson Judgment are applicable and render employer liable to compensate The Complainant as a result of the multiple breaches of the Legislation that has been established under the European Directive. This requirement to consider the Von Colson case has been relied on by the Labour Court in making a decision to award compensation in Martin O’Connor v Euperia Ltd determination no. DWT13146.

Relying on the Van Colson Judgment Rights Commissioner awarded €2500 for a single breach of the Public Holidays provision, decision no. r-147572-wt14, therefore we would request the Adjudication Officer to advance compensation to The Complainant, which is   appropriate and reflective to the high number of breaches and the appalling manner in which the employer failed and ignored to discharge its obligation.

In consideration of the above we would request the Adjudication Officer to find in our favour and confirm that our complaint is well founded and require the employer to compensate our member.

Respondent’s Submission and Presentation:

The Respondent was not present at the Hearings.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. Stated below are my decisions under each claim reference number. The Complainant started work on November 6^th 2014 and was provided with a written contract on January 27^th 2016, according to the Complainant. This contract stated her working hours as follows “Your normal hours of work will be 6pm to 11.30 pm from Tuesday till Sunday, one to five working days depending on the time of year”. The rate of pay was 9.15 Euros per hour. However, at the Hearing it as advised the Complainant earned an average of 125.32 Euros per week.

Under the above claim reference the Complainant stated she had not received written terms and conditions of employment. She elaborated at the Hearing that she did not receive the contract within the statutory requirement of two months as per Section 3.4 of the Act and that the contract was both unsigned and did not reflect the custom and practice of her situation at that time. I find the Respondent in breach of Section 3.4 of the Act by nor providing the Complainant and award her 501.28 Euros for breach of a statutory duty to be paid within 42 days of the date of this Decision. This award is made up of 125.32 Euros per week times 4 weeks.

Under the above claim reference the Complainant stated she had not received public holiday entitlements. The complainant stated in her submission that she received no premium for working Sunday December 28^th 2016 and I award her compensation of 50.33 Euros (rate x1) for breach of Section 21.(1) of the Act which requires an Employer to pay an additional day (or day off) for working a Public Holiday. This award to be paid within 42 days of the date of this Decision.

Under the above claim reference the Complainant stated that when she was rostered for work on February 27^th 2016 and then her shift got cancelled less than 24 hrs before the shift was due to commence without any explanation she did not receive 25% of her contracted hours. Section 18 of the Act provides an entitlement that where a worker makes himself or herself available for work but is not required to work to be compensated for the time the worker made himself or herself available.

As neither the exact hours worked that week or the percentage worked were available I am not in a position to make a determination on this claim and therefore have to deem this particular claim not well founded.

Under the above claim reference the Complainant stated she had not been paid Sunday Premiums. At the Hearing the Complainant was not exactly sure how many Sundays she worked in the six months prior to the claim being submitted to the WRC but estimated it at 26 times. Section 14.1.a of the Act requires that an Employer pay “an employee an allowance of such an amount as is reasonable having regard to all the circumstances” for Sunday work. I award the Complainant 773.18 Euros (26 weeks by 9.15 Euros per hour by 6.5 hours x 50% premium per Sunday) compensation to be paid within 42 days of the date of this decision. The premium of 50% is what was requested in the original submission and granting a higher premium as requested at the Hearing would not be reasonable in my view.

In this specific complaint an additional redress was sought by the Complainant of an award of compensation based on the decision of the Court of Justice of the European Union (formally the ECJ) inVon Colson v Land Nordrhein-Westfahlen. Such an award can only arise where the complaints made are well founded. Moreover, it should be emphasised that compensation, if any, must be within the bounds of what is fair and equitable having regard to all the circumstances. On any reasonable view, even though the complaints herein were well founded in the technical sense, the dictates of fairness or equity could not justify an excessive award of compensation in the circumstances of this case. A decision of a Rights Commissioner/Adjudicator , under Section 27.3(c) of the Organisation of Working Time Act 1977, may “require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment” , I am required to follow the decision of the ECJ in Van Colson and Kamann (1984 ECR 1891) when considering awards of compensation. Van Colson held that sanctions for breaches of Community Rights must be effective, proportionate and dissuasive-they must act as a distincentive against future infractions by the employer”.I n the circumstances of this case and the difficulties involved for the Complainant due to the breaches of the Act I am making an additional award of 1,500 Euros compensation to be paid within 42 days of the date of this decision.

Under the above claim reference the Complainant stated that disciplinary meetings and warnings were not conducted according to fair procedures. This claim was withdrawn at the Hearing.

Under the above claim reference the Complainant stated she had not received Sunday Premiums. This is duplicate claim similar to CA-00002700-004 above and I deem this claim not well founded.

With regard to the claim for (a) failure to remunerate the Complainant for her outstanding Annual Leave due at the time of her resignation and (b) failure to provide hours of work to the Complainant at her last date of employment, as neither of these two claims were contained in the original claim form sent to the WRC on February 18^th 2016 I am unable to make a determination on these two issues.

Dated:   23rd February 2017