ADJ-00003995

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003995

Complaints for Resolution:  

Date of Adjudication Hearing: 07/11/2016

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 15^th March 2016 until the employment was terminated on 21^st May 2016. The Complainant stated he was paid €7.00 an hour.

The Complainant referred complaints to the Workplace Relations Commission on 6^th July 2016 alleging the Respondent had breached the National Minimum Wage Act, 2000 – had breached the Payment of Wages Act, 1991 in relation to payment of wages and Minimum Notice – had breached Section 3 of the Terms of Employment (Information) Act, 1994 – had been unfairly dismissed by the Respondent.

The Complainant stated he was paid cash in hand and was not provided with payslips. 

The Complainant under the Minimum Notice and Terms of Employment Act, 1973 was withdrawn at the Hearing. 

Summary of Complainant’s Position. 

Terms of Employment (Information) Act, 1994. The Complainant stated that he had not been provided with a written statement of his Terms and Conditions of Employment contrary to the Act. 

Payment of Wages Act, 1991. The Complainant stated that he worked

Monday to Wednesday from 3.45pm to 1.30 am

Thursday and Sunday from 3.45pm to 2.30am

Friday and Saturday from 3.45pm to 4.30am.

The Complainant is claiming an additional payment for working night hours after 12 midnight.

The Complainant is also claiming payment of his final weeks wages – 3 days - which he stated had not been paid to him on termination of his employment.

The Complainant is also claiming payment of Minimum Notice on termination of the employment. 

Organisation of Working Time Act, 1997.

The Complainant stated he did not receive any breaks while at work except toilet breaks.

The Complainant stated that he worked 7 days a week during the course of the employment. If he wasn’t rostered for the Restaurant he distributed leaflets and was paid €50.00 for distributing 1000 leaflets.

The Complainant stated that he worked in excess of the maximum hours each week.

The Complainant stated that he was not paid his annual leave entitlements on termination of his employment.

The Complainant stated that he worked 17^th March 2016 – 28^th March 2016 and 2^nd May 2016 all being Public Holidays but he did not receive his entitlements under Section 21 of the Act. 

National Minimum Wage Act, 2000.

The Complainant stated that he worked 76 hours a week. The Complainant stated that he was paid €7.00 an hour. He stated that he requested payment of the national minimum wage on 20^th May 2016 and he was dismissed on 21^st May 2016. The Complainant’s Representative served notice on the Respondent by email dated 26^th May 2016 seeking information in relation to what hourly rate had been paid to the Complainant during the course of his employment from 15^th March 2016. There was no response from the Respondent. A complaint was referred to the WRC on 6^th July 2016. 

Unfair Dismissals Act, 1977

The Complainant stated that he requested the Respondent to pay him the National Minimum Wage on 20^th May 2016. He was dismissed by phone on 21^st May 2016.

The Complainant stated that he had commenced employment on 24^th May 2016 and is seeking compensation. 

Findings

Terms of Employment (Information) Act, 1994.

The Complainant was employed from 15^th March 2016 until the employment was terminated on 21^st May 2016. Section 3 of the Act provides that an employer must provide an employee with a written statement of Terms and Conditions of Employment within the period of two months of the commencement of the employment.

I find the Respondent is in breach of Section 3 of the Act. 

Payment of Wages Act, 1991

The Complainant is claiming payment for all hours worked beyond 12 midnight at time plus a half. The Complainant did not have a Contract of Employment therefore there was no legal entitlement to payment of time plus a half for hours worked after 12 midnight.

The Complainant is claiming payment for his final three days at work which he alleges the Respondent did not pay. The Complainant worked on average 9.45 hours a day x 3 x €9.15 an hour = €259.40.

The Complainant is claiming payment of minimum notice on termination of the employment. Section 4 (1) f the Minimum Notice and Terms of Employment Act, 1973 provides that an employee must be in the continuous employment of the Employer for 13 weeks to be entitled to payment of minimum notice. The Complainant was employed for just over 9 weeks and therefore is not entitled to payment of Minimum Notice. 

Organisation of Work8ing Time Act, 1997. 

Section 12. The evidence from the Complainant was that he worked on average 9.45 hours a day but he was not given an entitlement to any breaks with the exception of toilet breaks. Section 12 (1) of the Act provides that an employee is entitled to a break of 15 minutes after working 4.5 hours and Section 12 (2) provides that an employee is entitled to a 30 minute break after working 6 hours – this break can include the 15 minute break if given. 

Section 13. The Complainant stated that he worked 7 days a week each week he worked for the Respondent. Section 13 (2) of the Act provides that an employee is entitled to a break of 24 hours in each 7 day period. 

Section 15. The Complainant stated that he worked in excess of 48 hours each week. Section 15 (1) of the Act provides that in each period of 4 months an employee is not permitted to work on average over 48 hours a week. The evidence was that in the two months of his employment he worked 9.45 hours a day over 7 days a week 

Section 19. Section 19 provides that an employee is entitled to payment of accrued annual leave on termination of the employment. The evidence was that the Respondent did not pay the Complainant his annual leave entitlements on termination of the employment on 21^st May 2016. The Complainant worked a total of 623.7 hours x 8% = 50 hours annual leave due x €9.15 an hour = €457.50 due 

Section 21. This section of the Act provides that where an employee is required to work on a Public Holiday that employee is entitled to either an additional payment – a day off in lieu – a days annual leave. The evidence was that the Complainant worked each of the Public Holidays – 17/3/2016 – 28/3//2016- 2/5/2016 and he was not given compensation for working three Public Holiday days. 

National Minimum Wage Act, 2000.

The Complainant’s Representative served a Section 23 notice on the Respondent by email dated 26^th May 2016 – copy provided. There was no response from the Respondent.

The evidence was that the Complainant worked on average 9.45 hours a day over 7 days =66.15 hours x 9 weeks = 595.35 hours and 3 days (28.35) = 623.7 hours worked x €9.15 an hour =€5706.85.

The Complainant stated that he was paid €7.00 an hour, being a difference of €2.15 an hour x 623.7 hours worked = €1340.95 

Unfair Dismissals Act, 1977

The Complainant stated that he requested his E                mployer to pay him the National Minimum Wage on 20^th May 2015 and he was dismissed on 21^st May 2015 in a phone call from the Respondent.

Section 36 (2) of the National Minimum Wage Act, 2000 provides as follows –

Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of Section 6 (1) of the Unfair Dismissals Acts 1977 to 2015……except that it is not necessary for the employee to have at least one year’s continuous service with the Employer…..

I find that the Respondent breached Section 36 (1) of the Act of 2000 when the Complainant sought payment of the National Minimum Wage on 20^th May 2016 and was then dismissed by phone call on 21^st May 2016.

I find that the Respondent is in breach of Section 6 (1) of the Unfair Dismissals Act, 1977 – 2015 when he dismissed the Complainant on 21^st May 2016 for seeking payment of the National Minimum Wage...

The Complainant stated at the Hearing that he had commenced employment again on 24^th May 2016 and is paid the National Minimum Wage. 

Decision

Terms of Employment (Information) Act, 1994 CA-00005677-013

In view of my findings above and the uncontested evidence of the Complainant and in accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is well founded. The Respondent has breached Section 3 of the Act by not providing the Complainant with written statement of his Terms and Conditions of Employment. I direct the Respondent to pay the Complainant €250.00 compensation with 42 days of the date of this Decision. 

Payment of Wages Act, 1991 CA-00005677-004

In view of my findings above I declare the complaint is well founded in part.

The Respondent has breached Section 5 of the Act in relation to payment of the Complainant’s final 3 days of employment. I direct the Respondent to pay the Complainant €259.40, subject to any lawful deductions, within 42 days of the date of this Decision. 

Organisation of Working Time Act, 199-CA-00005677-009 -010-011-012

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaints are well founded. The Respondent has breached Sections 12, 13, 15, 19 and 21 of the Act.

I direct the Respondent to pay the Complainant

€457.50 in respect of annual leave accrued on termination of the employment and not paid

€259.40 in respect of 3 days in lieu of 3 Public Holidays worked and

€1000.00 compensation for breaches of Sections 12, 13, 15, 19 and 21 of the Organisation of Working Time Act, 1997. 

I direct the Respondent to pay these sums to the Complainant within 42 days of the date of this Decision. 

National Minimum Wage Act, 2000.CA-00005677-001 

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 €1340.95 within 42 days of the date of this Decision. 

Unfair Dismissals Act, 1977 CA-00005677-014 

In accordance with Section 8 of the Unfair Dismissals Act, 1977-2015 and in view of my findings above, I declare the complaint is well founded. I direct the Respondent to pay the Complainant

Compensation of €1500.00 within 42 days of the date of this Decision. 

Minimum Notice and Terms of Employment Act, 1973 CA-00005677 

This complaint was withdrawn at the Hearing.

Rosaleen Glackin 

Adjudication Officer 

Date:___15 February 2017____