ADJ-00003569

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003569

Complaints for Resolution:  

Date of Adjudication Hearing: 10/11/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure: 

In accordance with Section 41(4) 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 27^th July 2015 until her employment terminated on 4^th March 2016. The Complainant was paid €10.00 an hour and she worked 32 hours a week. The Complainant referred complaints to the Workplace Relations Commission on 15^th June 2016 alleging she had not been provided with a written statement under the Terms of Employment (Information) Act, 1994 – had not been paid her accrued annual leave and Public Holiday entitlements on termination of her employment and a complaint under the Payment of Wages Act, 1991 that she had not been paid her wages on 9^th April 2016. 

Summary of Complainants Position. 

The Complainant stated that the Respondent had been placed in Liquidation. A letter from the Liquidator was provided to the Hearing. 

Terms of Employment (Information) Act, 1994.

The Complainant stated that she had been provided with a written statement of her Terms and Conditions of Employment which she signed but she had not been provided with a copy of this Contract. 

Payment of Wages Act, 1991.

The Complainant stated that she normally worked 4 days from Tuesday to Saturday and she was paid one week in arrears. She stated that she worked 1^st and 2^nd April 2016 but was not paid for these and she is also claiming payment of her back week of €320.00 

Organisation of Working Time Act, 1997.

The Complainant stated that she did not have any annual leave in 2015 and in 2016 she took 2 days annual leave from 29^th to 31^st March 2016 but she was not paid for this as her employment terminated on 2^nd April 2016.

The Complainant is also claiming payment for Christmas Day and 1^st January 2016 

Findings

There is a letter dated 4^th March 2016 to the Complainant which states as follows “I was appointed liquidator…at a Creditor Meeting held….Thursday 3^rd March 2016. Please note the company has ceased trading and your employment with the Company has been terminated with immediate effect.” 

Terms of Employment (Information) Act, 1994.

Section 3 (1) of the Terms of Employment (Information) Act requires an employer to provide an employee with a written statement of terms and conditions of employment within the period of 2 months of the commencement of the employment. The Complainant confirmed at the Hearing that she had had been provided with a written statement within the specified period which she had signed, however she stated that she had not been provided with a copy.

I find the Respondent has complied with Section 3 of the Act. 

Payment of Wages Act, 1991.

The Complainant stated at the meeting that her employment had terminated on 2^nd April 2016. However the letter dated 4^th March 2016 from the Liquidator states the employment of the Complainant has been terminated with immediate effect.

The Complainant states in her submission that she had booked annual leave from 29^th March 2016 to 2^nd April 2016.

The Complainant is also claiming that she is owed wages for 1^st and 2^nd April 2016 despite the letter from the Liquidator.

The Complainant stated that she was paid a week in arrears and is entitled to payment of €320.00

I find that the Complainant is entitled to payment of €320.00 

Organisation of Working Time Act, 1997.

Section 19 and Section 23. The evidence shows from payslips presented by the Complainant to the Hearing that she worked 570.5 hours in 2015 and she worked 272.5 hours in 2016 up to 27^th March 2016 – last payslip provided.. The Complainant’s evidence was that she did not receive any annual leave during the course of the employment.

Section 23 of the Act provides that where the employment ceases in the first six months of the current annual leave year then the previous leave year can also be included. There was no evidence presented to me in relation to when the annual leave year ran from but I am taking it’s from April to March in accordance with the definition as set out in the Act. Therefore the period from 27^th July 2015 to March 2016 will be considered in calculating the Complainant’s entitlement to annual leave.

I find the Complainant worked a total of 843 hours in this period x 8% = 67.4 x €10.00 an hour = €674.40 

Section 21.

This complaint was lodged with the WRC on 15^th June 2016, therefore the period covered by this complaint is from 16^th December 2015 to 4^th March 2016. There are two Public Holidays in this reference period namely Christmas and the New Year. The Complainant stated that she did not work on either of these two Public Holidays but states that she was not paid.

However the evidence from the payslips presented to the Hearing by the Complainant shows that she was paid for a Public Holiday on 30^th December 2015 and a further Public Holiday on 9^th January 2016.

I find that the Respondent did not breach Section 21 of the Act. 

Decision

Terms of Employment (Information) Act, 1994 CA-00005225 -003

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare the complaint is not well founded. The Respondent has not breached Section 3 of the Terms of Employment (Information) Act, 1994 

Payment of Wages Act, 1991 CA-00005225-002.

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is well founded in part. I direct the Respondent to pay the Complainant the sum of €320.00, subject to any lawful deductions, within 42 days of the date of this Decision. 

Organisation of Working Time Act, 1997 CA-00005225-001.

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is well founded in part. The Respondent has breached Section 19 and Section 23 of the Act.

I direct the Respondent to pay the Complainant € 674.40 in respect of annual leave due and not paid on termination of the employment

I direct the Respondent to pay the Complainant compensation of €500.00 for the breaches of Sections 19 and 23 of the Act. The sum of € 674.40 and €500.00 to be paid to the Complainant within 42 days of the date of this Decision.

Rosaleen Glackin 

Adjudication Officer 

Date:___03 March 2017____