ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003504
Complaints for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00007361-001 | 28/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005163-001 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-002 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-003 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005163-004 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-005 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-006 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-007 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-008 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-009 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-010 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-011 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-012 | 08/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005163-013 | 08/06/2016 |
Venue: WRC; Lansdowne House, Ballsbridge, Dublin 4.
Date of Adjudication Hearing: 19/01/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Sec 39 of the Redundancy Payments Acts, 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 as an Agency Worker from 23rd September 2013 to 13th June 2016. He was paid €430.00 per week. He has made complaints under the Terms of Employment (Information) Act, Organisation of Working Time Act and Redundancy Payments Acts. He has sought compensation
1) Terms of Employment (Information) Act CA-5163 002/003/005/006/007/008/009/010/011/012/013
Complainant’s Submission and Presentation:
Sec 3 (b) CA 5163 002/003 |
The Respondent’s address was not listed in the statement of employment. Sec 3 (c) CA 5163 - 005/012 |
There is no place of work listed. He can’t remember receiving the document referred to by the Respondent. Sec 3 (d) CA 5163 - 006/012 There was no job title provided, or it was not specific. He accepts that the tile “Warehouse Operative” was listed and given to him. Sec 3 (e) CA 5163 - 007/012 The date of commencement was not stated. Sec 3 (f) CA 5163 - 008/012 It was a temporary position. No expected duration was stated. Sec 3 (ga) CA 5163 - 009/012 Not advising the Complainant that he may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section. Sec 3 gaa) CA 5163 - 010/012 Not advised about the pay reference period that may be used when seeking a request for details of the rate of pay to determine if it complies with the national Minimum Wage Act. Sec 3 (h) CA 5163 – 013 Pay periods; The Complainant accepts that this was provided. Sec 3 (i) CA 5163 - 013 No specific hours of work listed. Sec 3 (j) CA 5163 - 013 Referring to Organisation of Working Time Act does not inform the Complainant of his holiday entitlement. Sec 3 (k) CA 5163 - 013 |
No information on sick pay or pensions provided. |
Sec 3 (L) CA 5163 - 013 No minimum notice information listed.
Sec 3(4) CA 5163 - 013 The Respondent did not sign the statement. CA 5163 – 013 No reference to S.I. 49/1998, details of breaks entitlements. |
Respondent’s Submission and Presentation:Sec 3 (b) CA 5163 - 002/003 The Respondent supplied a document headed New Starters / Restarters With Team Obair. This document contained the company address. Sec 3 (c) CA 5163 - 005 /012 The place of work was stated in writing in a document given to him at the commencement of employment. Details supplied Sec 3 (d) CA 5163 - 006/012 The contract of employment lists the title of Warehouse Operative. Sec 3 (e) CA 5163 - 007/012 The commencement date was written into the document and given to him. Sec 3 (f) CA 5163 - 008/012 The Respondent accepts that this was not stated in the contract. Sec 3 (ga) CA 5163 - 009/012 The Respondent stated that the document given at the commencement of employment clearly shows the rate of pay which was in excess of the national minimum wage. Sec 3 gaa) CA 5163 - 010/012 This was not supplied |
Sec 3 (h) CA 5163 - 013 Pay periods; It was accepted by the Complainant that this was provided. Sec 3 (i) CA 5163 - 013 The Respondent stated that he was told of his hours but it was not in writing. Sec 3 (j) CA 5163 - 0123 The Respondent told him that he would receive holidays at 8 % of hours worked. It was not in writing. Sec 3 (k) CA 5163 - 013 The Respondent accepts that this was not provided in writing. Sec 3 (L) CA 5163 – 013 Minimum notice: The Respondent accepts that this was not provided. Sec 3(4) CA 5163 – 013 The Respondent accepts that the contract was not signed by the employer. CA 5163 – 013 S.I. 49/1998: The respondent accepts that this information was not provided.
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Findings1) Sec 3 (b) CA 5163 - 002/003 Address of Respondent I note that a document given to the Complainant and supplied at the hearing shows the address of 10a Grattan Crescent, Inchicore, Dublin 8. I find that this part of the complaint fails.
2) Sec 3 (c) CA 5163 - 005 /012 Place of work I note that the Respondent produced a document showing the place of work. I note that the Complainant was unsure whether he received it or not. I find that the Respondent has produced evidence to support their position; therefore on the balance of probability I find that the Complainant was given this information. This part of the complaint fails. 3) Sec 3 (d) CA 5163 - 006/012 Job Title I find that the contract of employment lists the title of Warehouse Operative. I find that this part of the complaint fails.
4) Sec 3 (e) CA 5163 - 007/012 Date of commencement I note that the document used by the Respondent to support the previous complaint does not have the commencement date. I note the conflict of evidence. On the balance of probability I find that there was no evidence to prove the Respondent’s position. Therefore I find that they have breached this sub section of Section 3.
5) Sec 3 (f) CA 5163 - 008/012 Temporary worker I note that the Respondent has accepted that they did not comply with this part of the Act. Therefore I find that they have breached this sub section of Section 3.
6) Sec 3 (ga) CA 5163 - 009/012 Reference to National Minimum Wage act I find that the Respondent has not complied with subsection. Therefore I find that they have breached this sub section of Section 3.
7) Sec 3 gaa) CA 5163 - 010/012 Reference to pay reference period when requesting details of pay as per the National Minimum Wage Act. I find that the Respondent has not complied with the subsection. Therefore I find that they have breached this sub section of Section 3.
8) Sec 3 (h) CA 5163 - 013 Pay periods I note that it was accepted that this subsection was complied with. This part of the claim fails.
9) Sec 3 (i) CA 5163 – 013 Hours of work I find that the Respondent did not state in writing the hours of work. Therefore I find that they have breached this sub section of Section 3.
10) Sec 3 (j) CA 5163 – 013 Holiday entitlements I find that the Complainant was not advised in writing of his holiday entitlements. I find that referring to the Act is not sufficient information. Therefore I find that they have breached this sub section of Section 3.
11) Sec 3 (k) CA 5163 – 013 Sick pay / pensions I find that this information was not provided in writing. . Therefore I find that they have breached this sub section of Section 3.
12) Sec 3 (L) CA 5163 – 013 Minimum Notice I find that this information was not provided in writing. Therefore I find that they have breached this sub section of Section 3.
13) Sec 3(4) CA 5163 – 013 Contract signed by Employer I find that the contract was not signed by the employer. Therefore I find that they have breached this sub section of Section 3.
14) CA 5163 – 013 S.I.49/98 Break entitlements I find that the Respondent has breached this subsection of Sec 3. Decision: Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that the Respondent has breached Sec 3 in part as set out in the findings. I note that Sec 7 (2) (d) of the Terms of Employment (Information) Act states, ”compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”. I have decided that some of the subsections of this Act were breached and that this amounts to one breach of the Act in its totality. Therefore the maximum compensation that may be awarded under this Act is four weeks wages. I have decided that the Respondent should pay the Complainant €1,000 (2.3 weeks wages) in compensation for the breach of this Act.This is to be paid within six weeks of the date below.
2) Organisation of Working Time Act CA 5163 - 001/004 Complainant’s Submission and PresentationBreach of Sec 19 CA 5163 - 001He stated that he did not get all his holiday entitlement and he did not get two weeks holidays together. He sent in a supplementary submission that the 67.11 hours deemed owed by the Respondent is not correct as he was not paid for travel to work each day, this amounts to one hour per day. Breach of Sec 20 CA 5163 - 004 He did not get paid in advance of taking holidays. Respondent’s Submission and Presentation:Breach of Sec 19 CA 5163 - 001The Respondent accepts that he did not get all his holiday entitlements and they advised that he is owed 67.11 hours of holidays. They accept that he was given two weeks holidays together but that he was not paid for all of the two weeks as he had not accrued full entitlement by that date, it depended on when he took holidays and if he had accrued holiday entitlement. The Respondent paid 67.11 hours amounting to €805.20 following the hearing date. Breach of Sec 20 CA 5163 – 004 They accept that he was not paid in full in advance of taking holidays. It depended on how much he had accrued before taking holidays.
Findings Breach of Sec 19 CA 5163 - 001Holiday pay: I note that the Respondent paid 67.11 hours valued at €805.20 subsequent to the hearing. I note at the hearing the Complainant appeared to accept that amount. However in a follow up submission they stated that he was not paid for travel time to and from work amounting to one hour per day. This complaint was not raised at the hearing and so I will discount it. It should also be noted that the ECJ found in the Tyco Integrated Security SL case 2015:578 that “Working Timer “ within the meaning of point (1) of Article 2 of the Directive 2003/88 according to which the worker must be working during the period in question, it should be noted that, as follows from paragraph 34 of this judgement , if a worker who no longer has a fixed place of work is carrying out his duties during his journey to or from a customer, that must also be regarded as working during that journey. As the Advocate General observed in point 48 of his opinion, given that travelling is an integral part of being a worker without a fixed or habitual place of work, the place of work of such workers cannot be reduced to the physical areas of their work on the premises of their employer’s customers. ”. I find that the Complainant had a fixed place of work therefore travel to and from that place of work cannot be treated as working time. I find that he has been paid in full for his holidays. Two weeks together: I note that he received two weeks together. Therefore I find that the Respondent has complied with Sec 19 (4). This part of the complaint fails. Breach of Sec 20 CA 5163 – 004 Paid in advance of taking holidays |
Sec 20 (3) of this Act states, “Nothing in this section shall prevent an employer and employee from entering into arrangements that are more favourable to the employee with regard to the times of, and the pay in respect of, his or her annual leave. I find that the Respondent granted two weeks holidays together and only paid the holidays that were accrued at the time of taking the holidays. I find that the Respondent facilitated the Complainant by letting him take holidays before he had accrued the full entitlement. I find that the Respondent was acting in compliance with Sec 20 (3) above. I find that this part of the complaint fails. |
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Decision Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. I have decided that this complaint fails. |
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3) Redundancy Payments Acts CA 7361 001
Complainant’s Submission and Presentation
The Complainant stated that he was informed in writing that the employment at his placement would terminate. A notice in writing in line with the Act was submitted and no counter notice was given. He was offered a position with this placement company but he declined as it was too far to travel. His employment was terminated. He had the qualifying service therefore he was entitled to redundancy payment but his employer refused to pay. He is seeking his entitlement to be paid statutory redundancy in accordance with the provisions of the Redundancy Payments Acts.
Respondent’s Submission and Presentation:
The Respondent stated that he was employed by them. He was an agency worker. He had been placed with the hirer company. The hirer company terminated that contract at that site. The hirer company offered the Complainant a permanent position in another site. He declined to take that post. As an agency worker he is not guaranteed work but once a contract is terminated the agency seeks to find suitable work that is how they trade. The Complainant wrote to the Respondent on 3rd June stating, “Please note that since my contract with the company is due to cease in mid-June I hereby give you my notice of termination of my contract”. The Complainant’s employer was the Respondent not the hirer company therefore the Respondent understood that the Complainant was resigning from their employment and so did not wish them to find alternative work. He resigned his position. This is not a redundancy situation and this complaint is rejected.
Findings
I find that the Complainant was employed by the Respondent, not the hirer company.
I note that the contract with the hirer company was coming to an end and he was notified that it would end in mid-June.
I note that he declined an offer of permanent work with the hirer but the travel was too far.
I note that the Complainant resigned his position with the Respondent by letter dated June 3rd as quoted above.
I find that he did not seek to have alternative work provided by his employer, the Respondent, as is normal for an agency.
I find that the Complainant resigned his position.
I find that no redundancy situation has arisen consequently.
I find that this complaint fails.
Decision
Sec 39 of the Redundancy Payments Acts requires that I make a decision in relation to the complaints.
I have decided that the Complainant resigned his position and as a consequence no redundancy arises.
I have decided that this complaint fails.
Eugene Hanly
Adjudication Officer
Dated: 2nd May 2017