ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00005346
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00007489-001 | 07/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007489-003 | 07/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007489-004 | 07/10/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007489-005 | 07/10/2016 |
Date of Adjudication Hearing: 11/01/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 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).
Attendance at Hearing:
Preliminary Matter
The respondent was not present at the hearing but was represented by her solicitor. He requested an adjournment of the hearing on two grounds. Firstly, both sides had agreed to mediation and that should be allowed take place and secondly, the respondent was abroad and unwell. No documentary evidence was produced in support of this request.
It was my view that the hearing had been set in place for some time now and the respondent was well aware of the date. I decided it was best to proceed with the hearing.
Background
The complaints were received by the WRC on 7th October 2016.
The complainant submitted that he was employed as a kitchen porter in the respondent restaurant from 12th May 2016 until 10th September 2016.
CA-00007489-001 Payment of Wages Act
Complainant’s Submission and Presentation:
During his time in the restaurant the complainant submitted that he worked 12 hour shifts and was paid €100 per shift, equating to €8.33 per hour. He worked this shift 5 days a week for 10 weeks and was paid €5,000. It was his contention that he should have been paid €5,490 for this period (the difference between being paid €8.33 per hour and being paid the minimum wage of €9.15 per hour). He put forward that he is owed €490 for this period.
He subsequently worked for 7 weeks at 3 days per week. For this period he was paid €2,100 but should have been paid €2,305.80 at minimum wage rates. He put forward that he is owed €205.80 for this period.
He also stated that he was not paid anything for the first three weeks he worked which should have amounted to €1,500.
He also claimed that he was not paid for his last week of work for which he should have been paid €300.
Respondent’s Submission and Presentation:
The respondent was not present but was represented by her solicitor.
The representative denied the complainant had been underpaid. He submitted that the complainant had been paid as he should have been throughout his employment except for the last week which he was due.
Issues for Decision:
The issue for decision is whether the deduction of a total of €2,495.80 by the respondent was a lawful deduction.
Legislation involved and requirements of legislation:
Section 5 of The Payment of Wages Act 1991 states;
(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless –
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) In the case of a deduction, the employee has given his prior consent in writing to it.
Decision:
Section 41(4) 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.
The deductions which are the subject of this complaint are clearly not required by statute, did not constitute a term of contract nor were they given by prior consent. I believe the evidence of the complainant in this matter.
I therefore find that the complaint is well founded and order the respondent to pay the complainant the sum of €2,495.80 (consisting of €695.80 for hours worked on less than the minimum wage, €1,500 for the first three work weeks which were not paid, and €300 for his last week of work which was unpaid) within six weeks of the date of this Decision.
CA-00007489-003 Organisation of Working Time Act;
Pay for Annual Leave
Complainant’s Submission and Presentation:
The complainant submitted that he was not paid any holiday pay during his employment with the respondent. During his employment he worked a total of 852 hours, 8% of this is 68.16 hours and at a minimum wage of €9.15 per hour he should have received a payment of €623.66.
Respondent’s Submission and Presentation:
The respondent's representative submitted that the complainant had been paid the proper holiday pay for the period of his employment.
Issues for Decision:
The issue for decision is whether the complainant is due pay for annual leave accrued during his period of employment with the respondent.
Legislation involved and requirements of legislation:
Section 20 of the Act states:
(2) The pay in respect of an employee’s annual leave shall—
(a) be paid to the employee in advance of his or her taking the leave,
(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and
(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.
(3) Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave.
(4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned’s pay determined in accordance with regulations made by the Minister for the purposes of this section.
Decision:
Section 41(4) 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.
I believe the evidence of the complainant in this matter and the complaint is well founded. I order the respondent to pay the complainant the sum of €623.66, the amount due to him for annual leave, within six weeks of the date of this Decision.
CA-00007489-004 Organisation of Working Time Act;
Pay for Public Holidays
Complainant’s Submission and Presentation:
The complainant submitted that he did not receive his Public Holiday entitlements and having worked two public holidays he was entitled to two days' pay, that is, 24 hours at €9.15 per hour equalling €219.
Respondent’s Submission and Presentation:
The respondent's representative submitted that the complainant had been paid his Public Holiday entitlements for the period of his employment.
Issues for Decision:
The issue for decision is whether the complainant is due pay for the Public Holidays he worked during his period of employment with the respondent.
Legislation involved and requirements of legislation:
Section 21 of the Act states:
(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
(a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day’s pay:
Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.
(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.
(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day’s pay.
(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.
(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in the Third Schedule.
(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.
Decision:
Section 41(4) 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.
I believe the evidence of the complainant in this matter and the complaint is well founded. I order the respondent to pay the complainant the sum of €219.00, two days' pay, for the two public holidays he worked in the period in question, within six weeks of the date of this Decision.
CA-00007489-005 Organisation of Working Time Act;
Daily Rest Period & Rest and Intervals at Work
Complainant’s Submission and Presentation:
The complainant submitted that he had worked 12 hour shifts without breaks.
The complainant produced pay slips and bank statements as evidence.
Respondent’s Submission and Presentation:
The respondent's representative submitted that the complainant had not worked outside the periods allowed under the Act.
Issues for Decision:
The issue for decision is whether the complainant received his daily rest period and breaks at work.
Legislation involved and requirements of legislation:
The Act states:
Daily rest period.
- —An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.
Rests and intervals at work.
- —(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.
(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).
(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).
(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).
Decision:
Section 41(4) 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.
The complainant's recollection on the length of his shifts and the breaks given was not 100% clear. In the circumstances I do not uphold this complaint.
Summary
In summary I order the respondent to pay the complainant the sum of €3,338.46, within six weeks of the date of this Decision.
Dated: 27th February 2017