ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004767
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00006760-001 | 02/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00006760-002 | 02/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00006760-003 | 02/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00006760-004 | 02/09/2016 |
Date of Adjudication Hearing: 16/11/2016
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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).
Complainant’s Submission and Presentation:
The Complainant commenced employment with the Respondent on 9th November, 2015. He was employed as a fitness/gym instructor and his hours of employment were to be flexible over 7 days per week. He was paid monthly at the hourly rate of €8.65 (2015) and €9.15 (2016). His hours of employment varied per week but he typically worked 25 hours per week.
Following on from his first pay cheque in November 2015, he noted that the amount didn’t correspond with the hours that he had worked and when he asked the Respondent about it, they said that the difference was due to deductions for tax etc. As the Complainant never received a payslip, he could not verify this. The Complainant said he had registered for Tax credits ( tax credit certificate was provided) and that the deductions were not emergency tax. However, the pay was significantly smaller than it should have been – even with deductions for USC, PRSI and PAYE. For example, in some months he was short by over €300.
On 15th April, the employer informed the Complainant (and 2 other employees) that they were finished as of then but the Complainant still had to work Saturday 16th April as he had been rostered for that day.
The Complainant received his final pay cheque at the end of April and it didn’t include any extra pay for minimum notice/holidays/public holidays or any of the money that he had been short, in his view, each month.
The Complainant went to a Citizens Information Centre for some advice on the matter and they suggested that he write to the employer directly and lay out what he was looking for.
The Employer replied by saying he didn’t owe him anything and that he was being slanderous in suggesting this.
The Citizens Information Service contacted the employer as well and similarly received an email in response stating that there was more to this case.
The Citizens Information Service then lodged a complaint with WRC. They also wrote to his former employer seeking his personnel files under the Data Protection Act, but the letter was returned to them.
REDRESS BEING SOUGHT
Minimum Notice: Terms of Minimum Notice & Terms of Employment Acts 1973 – 2005: 1 weeks minimum notice which equates to €228 (based on average 25 hours per week @ €9.15)
Public Holidays: Under the Organisation of Working Time Act 1997, Pay for public holidays for the five following public holidays: Christmas Day, St. Stephens Day, New Years Day, St. Patrick’s Day, Easter Monday.
Christmas Day & St. Stephens Day (2015) = 5 hours x €8.65 = €43.25 x 2 days = 86.5 New Years Day, St. Patrick’s Day, Easter Monday (2016) = 5 hours x €9.15 = €45.75 x 3 days = 137.25
Amount Sought: €223.75
Annual Leave: Under the Organisation of Working Time Act 1997
The Complainant calculated that he worked 491 hours in the time he worked with the Respondent. Payment of 8% of these hours as holiday pay = 39 hours holiday pay @ €9.15 per hour = 357.
Amount Sought: €357
Outstanding pay/unlawful deductions from pay according to the Complainant: Under the Payment of Wages Act 1991
November 2015 – should have received €640 but actually received €391 (down €249) December 2015 – should have received €808 but actually received €464 (down €344) January 2016 – should have received €773 but actually received €457 (down €316) February 2016 – should have received €818 but actually received €518 (down €300) March 2016 – should have received €873 but actually received €891 (this was accompanied by a letter saying no taxes had been taken out of it yet) April 2016 – Should have received €494 but actually received €158 (down €336)
The Complainant stated that he sought a balancing statement from the Revenue Commissioners for 2015 and was informed that he had overpaid tax of €31 (balancing statement was attached) and he stated this doesn’t account for the massive deductions from his wages
Breakdown of what should actually have been paid according to the Complainant under outstanding pay:
9 November – 30 November 2015 Amount due - €640 Amount received - €391 PRSI due - €0 PAYE due - €0 USC due - €0
Actual amount still owed - €249
1 December – 31 December 2015 Amount due - €808 Amount received - €464 PRSI due - €0 PAYE due - €0 USC due - €0
Actual amount still owed - €344
1 January – 31 January 2016 Amount due - €773 Amount received - €457 PRSI due - €0 PAYE due - €0 USC due - €0
Actual amount still owed - €316
1 February – 29 February 2016 Amount due - €818 Amount received - €518 PRSI due - €0 PAYE due - €0 USC due - €0
Actual amount still owed - €300
1 April – 16 April 2016 Amount due - €494 Amount received - €158 PRSI due - €0 PAYE due - €0 USC due - €0
Actual amount still owed - €336
Amount Sought: €1,545
Total amount being sought by the Complainant = €2353.75
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Respondent’s Submission and Presentation:
The Respondent was not present at the Hearing. |
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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.
Based on the uncontested evidence of the Complainant I find the Complainants claims well founded and award the following;
Under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 (Ref No) CA 00006760-001 I award the Complainant 228 Euros to be paid within 42 days of the date of this decision.
Under section 6 of the Payment of Wages Act, 1991 (Ref No) CA 00006760-002 I award the Complainant 1,545 Euros to be paid within 42 days of the date of this decision.
Under section 27 of the Organisation of Working Time Act, 1997 (Ref No) CA 00006760-001003, I award the Complainant 357 Euros to be paid within 42 days of the date of this decision.
Under section 27 of the Organisation of Working Time Act, 1997 (Ref No) CA 00006760-001004, I award the Complainant 223.75 Euros to be paid within 42 days of the date of this decision.
Dated: 2nd March 2017