ADJ-00004034

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004034

Parties:

	Complainant	Respondent
Parties	A Kitchen Worker	A Food Takeaway

Complaints

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00005830-001	13/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00005830-002	13/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00005830-004	13/07/2016

Date of Adjudication Hearing: 12/04/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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 April 2016 until the employment terminated on 8^th July 2017. The Complainant lodged complaints on 13^th July 2016 with the WRC alleging the Respondent had breached Section 3 of the Terms of Employment (Information) Act, 1994 – had breached Section 19 of the Organisation of Working Time Act, 1997 and had breached the National Minimum Wage Act 2000

The Respondent stated that the Company had been the subject of a NERA inspection by the WRC some 3 or four weeks prior to the Hearing.

Summary of Complainant’s Case:

Terms of Employment (Information) Act, 1994. The Complainant stated that she had not been provided with a written statement of her Terms and Conditions of Employment.

National Minimum Wage Act, 2000. The Complainant stated that she had been paid €5.45 an hour. The Complainant confirmed at the Hearing that she had not lodged a Section 23 on the Respondent prior to lodging complaint with the WRC.

Organisation of Working Time Act, 1997. The Complainant stated she had not been paid her accused annual leave on termination of her employment

Summary of Respondent’s Case:

Terms of Employment (Information) Act, 1994. The Respondent confirmed that the Complainant had not been provided with a written statement of her Terms and Conditions of Employment within 2 months of the commencement of the employment.

National Minimum Wage Act, 2000. The Respondent confirmed that the Complainant had not served notice under Section 23 of the Act.

Organisation of Working Time Act, 1997. The Respondent confirmed that the Complainant had not been paid her accrued annual leave entitlements on termination of her employment.

Findings and Conclusions:

Terms of Employment (Information) Act, 1994. Section 3 of the Act requires that the Employer must provide an employee with a written statement of specified terms and conditions of employment within the period of two months of the commencement of the employment. Both Parties confirmed at the Hearing that the Respondent did not provide this statement. However post the Hearing the Respondent forwarded a Terms and Conditions Template which does not have the Complainant’s name and is not signed or dated by the Respondent.

National Minimum Wage Act, 2000. Both Parties confirmed that the Complainant did not serve a Section 23 notice on the Respondent prior to lodging her complaint.

Organisation of Working Time Act, 1997. Post the Hearing the Respondent forwarded payslips from 2^nd May 2016 to 11^th July 2016. These show that tax was deducted each week although there is no pps no on the payslips and she was never registered with the Revenue Commissioners for this Respondent although she had been registered with the Revenue for another named Employer. After the Hearing also the Respondent stated the Complainant was paid €9.15 an hour and cash of €250.00 each week and that she worked 27 hours a week. The Complainant had provided evidence to the Hearing of hours she had worked each day from April 2016 to 11^th July 2016. These show that the Complainant worked a total of 123 pours in April - 188 hours in May – 196 in June and 53.5 hours in July 2016.This is a total of 560.5 hours worked x 8% = 44.84 hours annual leave due x €9.15 an hour = €410.28

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.

Terms of Employment (Information) Act, 1994 – CA-00005830—002

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €1000.00 within 42 days of the date of this Decision.

National Minimum Wage Act, 2000.- CA-00005830—001

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare I do not have jurisdiction to hear this complaint as the Complaint did not lodge a Section 23 notice on the Respondent prior to lodging her complaint.

Organisation of Working Time Act, 1997. –CA-00005830—004

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is well founded. I direct the Respondent to pay the Complainant -

€ 410.28 in respect of annual leave due and not paid on termination of the employment and

compensation of €1000.00 for breach of Section 19 and Section 23 of the Act.

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

Dated: 6^th July 2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Key Words:

Terms and Conditions – Annual Leave Section 23