ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004715

Complaints for Resolution:

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-00006504-002	17/08/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00006504-006	17/08/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006504-009	17/08/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006504-010	17/08/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006504-013	17/08/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00006504-014	17/08/2016

Date of Adjudication Hearing: 08/12/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, the National Minimum Wage Act 2000, the Payment of Wages Act 1991 and the Organisation of Working Time Act 1997, 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.

Complainant’s Submission and Presentation:

The complainant commenced employment as a mushroom picker in December 2012 and was promoted to Harvest Manager with oversight of all processes and office and staff management responsibilities. Her employment ended on 5^th August 2016. She submits the following complaints:

CA-00006504-002 – National Minimum Wage Act 2000

She submits that for almost all of her employment she worked from approximately 6.20am to 10pm – an average of 15 hours per day with one day off per week. Taking breaks into account, she worked 81 hours per week (breaks excluded) from 1^st November 2015 until 5^th August 2016.

The complainant states that to record the hours worked, a clock-in system was in place. However,

The complainant alleges that the respondent subsequently and retrospectively would amend the records so that they did not show any excessive working hours. It is submitted that the employees were required to sign payslips which showed generally fewer than 40 hours worked per week, and rest breaks in line with employment law. The complainant submits that pursuant to Section 20 of the Act, it appears that she was paid an average hourly rate of between €4.06 to €6.17 which is far below the hourly minimum rate. Pursuant to Section 21 of the Act, the complainant seeks payment of wages owing to her according to what she should be paid by the respondent. This is calculated at €45,517.05 (which excludes €524.40 for board and lodgings).

CA-00006504-006 – Payment of Wages Act 1991

Approximately two months before she terminated her employment, the respondent started deducting any losses from the employees’ wages that were incurred due to poor production. The respondent would calculate the loss for the month and would equally divide the loss amongst the employees. There was no agreement in writing for such deductions. It is submitted that the respondent acted in breach of its statutory duty pursuant to section 5 (1) of the Act and that the amount of €91.99 be refunded to her.

CA-00006504-009 – Organisation of Working Time Act 1997

It is submitted that the complainant worked an average of 81 hours per week (breaks excluded) in the period November 2015 to August 2016. It is therefore submitted that the respondent failed in its statutory duty pursuant to section 15 of the Act (weekly working hours).

CA-00006504-010 – Organisation of Working Time Act 1997

It is submitted that 20 days annual leave was given, but not 20 working days annual leave. It is submitted therefore that the respondent was in breach of its statutory duty pursuant to section 19 of the Act.

CA-00006504-013 – Organisation of Working Time Act 1997

It is submitted that the complainant often worked a 15 hour day, including bank holidays. However, the rate of pay calculated to compensate her, while not clear, never reflected the reality of hours worked. Therefore it is submitted that the respondent breached its statutory duty pursuant to section 21 (1) and 22 of the Act.

CA-00006504-104 – Organisation of Working Time Act 1997

This section of complaint is blank – reference withdrawn on WRC system.

Respondent’s Submission and Presentation

As the complainant lodged her claims on 17^th August 2016, the respondent respectfully submits that the reference period therefore should be from 18^th February 2016. The respondent refutes the allegations made.

National Minimum Wage

The complainant was issued with her payslip on 7^th August 2016. She was paid net pay of €1,784.32. The complainant worked a total of 120.07 hours in the month of July 2016. She was paid €12.49 per hour, which is well in excess of the national minimum wage.

Payment of Wages

The respondent agrees that deductions were made from wages and offers to refund those deductions. The respondent further submits that it was the complainant herself (as Harvest Manager) who instructed that deductions be made from employees’ wages, and that the respondent has subsequently refunded other employees.

Organisation of Working Time – holidays

The complainant is entitled to a maximum of 4 working weeks annual leave or 8% of hours worked. She worked 1159.55 hours from January to August 2016 and was paid a total of €1223.51.

It is submitted that the complainant was paid the correct annual leave entitlement.

Organisation of Working Time – Public Holiday

The complainant has alleged that she was not paid the correct public holiday entitlement. It is submitted that in the claim reference period she was paid for each public holiday as per payslips submitted in evidence.

In relation to the complainants allegations that the respondent falsified records, in order to show there were no breaches of employment law, it is submitted that these are most serious charges and that the Labour Inspectorate has already examined the respondent employers records and one ‘clean bill of health’ was given 2013/2014 and another report is pending.

Decision:

CA-00006504-002 – National Minimum Wage Act 2000

Section 24 (2) (b) of the Act provides:

“(2) A dispute cannot be referred to or dealt with by a rights commissioner –…

(b)where, in respect of the same alleged under-payment, the employer is or has been

(i) the subject of investigation by an inspector under section 33 or 34 or

(ii) prosecuted for an offence under section 35.”

I note the issue here of minimum wage has been referred to the Labour Inspectorate and I therefore decline jurisdiction in the matter.

CA-00006504-006 – Payment of Wages Act 1991

Section 5 of the Act provides:

“5.—(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.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

( a ) any act or omission of the employee, or

( b ) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term..”

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction,

It is common case here that the respondent deducted the sum of €91.99 without having regard to the provisions of Section 5. I find the complainant’s complaint to be well founded and I require the respondent to pay to the complainant the sum of €91.99.

CA-00006504-009 – Organisation of Working Time Act 1997 – weekly working hours

Section 15 provides that an employer must not permit an employee to work in each period of 7 days an average of more than 48 hours. This complaint was received on 17^th August 2016. The cognisable period therefore is from 18^th February 2016. The records of the respondent show that this section of the Act was not breached in the period. The complainant submitted some photocopies of records which she contends altered the true record of hours she worked. I conclude that this documentation cannot be relied upon comprehensively. I do not find the complaint to be well founded.

CA-00006504-010 – Organisation of Working Time Act 1997 – annual leave

Section 19 of the Act provides :

“19.- (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to –

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)…

I note the respondent’s evidence that 8% of hours worked was the formula used for annual leave for the complainant, and I find this aspect of the complainant’s complaint to be not well founded.

CA-00006504-013 – Organisation of Working Time Act 1997 – public holidays

Section 21 provides for employees’ entitlements in respect of public holidays, as

“(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.”

Section 22 of the Act provides the rate at which an employee is paid in respect of a day off/additional day’s pay as being equal to the sum paid to the employee in respect of the normal daily hours last worked before that public holiday.

Having considered the evidence and records of the respondent I find that this formula was applied by the respondent according to their records. I do not find the complaint to be well founded.

Dated: 1^st March 2017