ADJ-00003799

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003799

Complaints for Resolution:  

Date of Adjudication Hearing: 12/12/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, 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 was employed from 1^st May 2015 until the employment terminated on 28^th April 2016. The Complainant was paid €9.15 an hour and she worked 20 hours a week. 

Unfair Dismissals Act, 1977 CA-00004828 -007 - Preliminary Issue

Section 2 (1) (a) of the Act provides as follows - …..this Act shall not applyto any of the following persons (a) an employee….who is dismissed, who at the date of his dismissal had less than one year’scontinuous service with the employer who dismissed him. The Complainant commenced employment on 1^st May 2015 and this was confirmed by both Parties. The employment terminated on 28^th April 2016. One year’s continuous service would be 30^th April 2016.

DecisionCA-00004828-007

I decide I do not have jurisdiction to hear this complaint as the Complainant was not employed for one continuous year with the Respondent.

Terms of Employment (Information) Act, 1994 CA-00004828-006

Summary of Complainant’s Position.

The Complainant stated that she had not been provided with a written statement of her Terms and Conditions of Employment from the Respondent.

Summary of Respondent’s Position.

The Respondent stated that the Complainant was employed by both named Respondents and the Employer was the same. She could be assigned to work in either. The Complainant was issued with a written statement and the Respondent agreed to forward this post the Hearing but did not do so.

Findings

Section 3 (5) of the Act provides that a copy of the statement shall be retained by the employer during the period of the employee’s employment and for 1 year thereafter. The Respondent did not submit a copy of the Terms and Conditions either at the Hearing or post the Hearing.

Decision CA-00004828-006

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is well founded. I direct the Respondent to pay the Complainant compensation of €100.00 within 42 days of the date of this Decision.

Organisation of Working Time Act, 1997.CA-00004828-001 -003 -005

Summary of Complainant’s Position

The Complainant stated that she worked Wednesday to Sunday and she worked 4 hours each day over 5 days. The Complainant stated that from March 2016 she worked Monday to Friday and did not work on a Sunday. The Complainant stated that she did not receive a Sunday Premium when she worked on Sundays.

The Complainant stated that she did not receive her annual leave entitlements for 2015/2016

The Complainant stated that she did not receive her Public Holiday entitlements. The Complainant was unable to provide details of which Public Holidays were claimed and which Public Holidays she worked but did not receive compensation.

Summary of Respondent’s Position.

The Respondent stated that he would forward details of Sundays worked by the Complainant and he would also forward details in relation to both Annual Leave and Public Holidays post the Hearing. The Respondent did forward all payslips for the Complainant post the Hearing. 

Findings

These complaints were submitted to the WRC on 25^th May 2016 therefore in accordance with Section 41(6) of the Workplace Relations Act, 2015 the period covered by the complaints in relation to Section 14 and Section 21 of the OWTA 1977 is from 26^th November 2015 to 28^th April 2016.

Section 14. This Section of the Act provides that where an employee works on a Sunday and this is not taken into account in the calculation of her wages then an employee is entitled to be paid an allowance or by increasing her rate of pay, or by granting paid time off. The evidence shows that the Complainant worked all Sundays, 4 hours each Sunday between 26^th November 2015 and March 2016 when her scheduled working changed to Monday to Friday.

I find the Respondent is in breach of Section 15 of the Act.

Section 19. Section 19 (1) (c) of the Act provides that an employee is entitled to payment of 8% of all hours worked in the annual leave year

I find that the Complainant worked 20 hours a week from 1^st May 2015 to 31^st March 2016 and 20 hours from 1^st April 2016 to 28^th April 2016 i.e 50 weeks x 20hours a week = 1000 hours worked x 8% =80 hours annual leave due x € 9.15 an hour =€732.00. The evidence shows she was paid €10.00 annual leave in the payslip dated 1^st May 2016. The Complainant is entitled to payment of €722.00 in respect of annual leave due and not paid.

I find that the Respondent has breached Section 19 of the Act.

Section 21. Section 21 (1) of the Act provides that an employee is entitled to either a paid day off on the Public Holiday –a paid day off within a month – an additional day of annual leave or an additional days pay. There are five Public Holidays in the reference period covered by this complaint i.e. from 26^th November 2015 to 28^th April 2015 i.e. 25^th Dec 2015 was a Friday – 26^th Dec 2015 was a Saturday – 1^st January 2016 was a Friday – 17^th March 2016 was a Thursday and 28^th March was a Monday. There was no evidence from either party as to which Public Holidays the Complainant worked. The payslips provided to me were of no assistance. According to the evidence from the Complainant it means that she was working on all Public Holidays.

I find that the Respondent is in breach of Section 21 of the Act. 

Decision CA-00004828-001-003-005

In accordance with Section 41 (5) of the Workplace Relations Act 2015 I declare the Respondent has breached Sections 14, 19 and 21 of the Act. I direct the Respondent to pay the Complainant –

Compensation of €208.00 in respect of 13 Sundays worked in the reference period to March 2016.

Her annual leave entitlements of €722.00 and

Compensation of €200.00 in lieu of Public Holidays worked and

Compensation of €500.00 for breaches of Sections 14, 19 and 21 of the Act.

These sums to be paid to the Complainant within 42 days of the date of this Decision. 

Payment of Wages Act, 1991 CA-00004828-004

Summary of Complainant’s Position.

The Complainant stated that the Respondent requested her phone while she was at work. She refused to hand it over She stated that if her phone was taken she would go home and she did.

Summary of Respondent’s Position.

The Respondent stated that the Complainant was constantly on her phone while at work and she was requested to hand it up while at work. She refused and left. 

Findings

The Minimum Notice and Terms of Employment Act, 1973 provides that an employee who is dismissed by their Employer is entitled to specified minimum notice dependant on years of service. There was no evidence in relation to any dismissal by the Respondent. 

Decision – Payment of Wages Act, 1991 CA-00004828-004

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded. 

Rosaleen Glackin 

Adjudication Officer 

Date:__15 February 2017