ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003921

Complaintfor Resolution:

Date of Adjudication Hearing: 08/11/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint).

Complainant’s Submission and Presentation:

The complainant responded to an advertisement on the internet for a vacancy with the respondent. She attended for interview and she was admitted to a period of trial working (she says four days, the respondent says three).

At the end of the period the respondent telephoned her to say that she had not been successful in gaining long term employment.

The complainant raised the matter of payment to be told that it had been a trial period and that she would not be paid.

Respondent’s Submission and Presentation:

The respondent says that it was made clear at interview that the trial period would be unpaid.

The respondent had been advised by a third party that it was not necessary to set up all the payroll systems for an employee on trial or that doing so might create expectations of longer term employment.

The employees on trial had been given free teas, coffee and lunch as they were not being paid wages. The trial period was not a success and after the third day the complainant was telephoned and told that she would not be continuing in employment.

Conclusions and Findings

The facts of this case are not in dispute, except in respect of minor detail.

The respondent engaged the complainant on a trial period without pay. The complainant worked at the till and carried out various other duties and while the respondent had some criticism of her performance she was on trial and it is only to be expected that there might be some further learning to be done.

In the Interpretation section of the National Minimum Wage Act 2000 the entitlement to payment is subject to there being a contract of employment which is defined, in Section 2 as a;

2 (a) Contract of service or apprenticeship

2 (b) Any other contract whereby an individual agrees to do or perform personally any work or service for that person.

Section 14 of the Act establishes the entitlement to ‘an hourly rate of pay not less than’ the national minimum wage.

There are of course such things as work experience, internships where the overriding consideration is observation and learning, or is supposed to be.

In this case the complainant was clearly engaged in work on the till and in the performance of other duties. The level of satisfaction on the respondent’s part with how these were performed is beside the point; the point is that she was engaged in the performance of work for her and the Act makes no provision for a qualifying period.

The complainant was therefore on a contract of service for the duration of her employment and falls within the protection of the Act

Therefore what may have been said, or even agreed at the interview, and there was no documentary or supporting evidence either way, is irrelevant. She had an entitlement to be remunerated at the level of the national minimum wage as a result of the nature of her employment.

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 uphold complaint CA-00005663 and award the complainant nineteen hours pay at the then obtaining national minimum wage rate of €9.15 per hour; a total of €173.85 subject to any lawful deductions that may be required.

Dated:   20 March 2017