ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003683

Complaints for Resolution:

Date of Adjudication Hearing: 01/02/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 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.

The Complainant was employed from 22^nd September 2014 until the employment terminated on 12^th August 2015. The Complainant was paid €11.00 an hour and she worked 42.5 hours per week. The Complainant referred a complaint to the Workplace Relations Commission on 22^nd June 2016 alleging the Respondent had made an unlawful deduction under the Payment of Wages Act, 1991 and a complaint that the Respondent had breached the Terms of Employment (Information) Act, 1994.

Preliminary Issue.

These complaints were submitted to the Workplace Relations Commission on 22^nd June 2016. The employment terminated on 12^th August 2015.

Section 41 (6) of the Workplace Relations Act, 2015 provides as follows: “an Adjudication Officer shall not entertain a complaint referred to him or her under this under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

However Section 41 (7) does allow for an extension of time by a further 6 months “due to reasonable cause”.

The Complainant argued that when she left work in August 2015 she was arrested following a report by the Respondent to the Gardai. Following a District Court Hearing at the end of May 2016 the case was struck out. She stated that she was unable, because of this ongoing civil court case to lodge a complaint against the Respondent. She did lodge her complaints on 22^nd June 2016 following the proceedings in the District Court being struck out by the Court. She is seeking an extension of time.

The Respondent argued that the Complainant should not be granted an extension of time as no evidence of reasonable cause was provided by the Complainant. The Respondent referenced the Decision of the Labour Court Cementation Skanska v Carroll and a Decision of the Employment Appeals Tribunal in Byrne v PJ Quigley in support of their argument that the Complainant should not be granted an extension of time.

1. Having considered the evidence from both the Complainant and the Respondent I decide to grant an extension of time on the basis of the reasons submitted by the Complainant.

Summary of Complainant’s Position.

Terms of Employment (Information) Act, 1994.The Complainant stated that she had not been provided with a written statement of her Terms and Conditions of Employment.

Payment of Wages Act, 1991. The Complainant was paid weekly in arrears. She stated that she worked 10 days between 1^st and 12^th August 2015 but was not paid. She also stated that she had not been paid her accrued annual leave on termination of her employment and neither had been paid minimum notice on termination of her employment. The Complainant was requested to forward Bank Statements and payslips to me post the Hearing which she did.

Summary of Respondent’s Position.

Terms of Employment (Information) Act, 1994. The Respondent stated that the Complainant did not request a Contract of Employment at any stage during the course of her employment.

Payment of Wages Act, 1991. The Respondent stated that they were awaiting the conclusion to the criminal proceedings to determine if any monies were due to the Complainant or if the Complainant owes money to the Respondent. The Respondent acknowledged that the criminal proceedings had ended in May 2016. However at the Hearing the Respondent stated there were no barriers to other proceedings but confirmed that none were in process at the time of the Hearing.

The Respondent confirmed post the Hearing in an email dated 7^th February 2017 that the Complainant was due to be paid on 11^th August 2016 in respect of the previous week plus 4 days but that this payment did not go through.

The Respondent confirmed at the Hearing that the Complainant had not been paid accrued annual leave on termination of the employment. The Respondent stated that the Complainant had not been dismissed and therefore she was not entitled to payment of Minimum Notice.

Terms of Employment (Information) Act, 1994.

Section 3 of the Act provides that an employer must provide an employee with a written statement of their Terms and Conditions of Employment within the period of 2 months of the commencement of the employment with the Employer. Both Parties confirmed that the Respondent did not provide the Complainant with a written statement of her Terms and Conditions of Employment.

Payment of Wages Act, 1991.

Both Parties have now confirmed that the Complainant was not paid one week’s wages plus a further 4 days wages due. The Complainant is due wages of 42.5 hours x €11.00 an hour = €467.50 plus 4 days of €374.00

Both Parties confirmed that the Complainant did not take any annual leave and she was not paid her accrued annual leave of 4 weeks =170 hours x €11.00 an hour = €1870.00

There was no evidence presented to me at the Hearing by the Complainant that she had been dismissed by the Respondent. Accordingly she is not entitled to payment of Minimum Notice.

Terms of Employment (Information) Ac t, 1994- 00005411-002

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. The Respondent has breached Section 3 of the Terms of Employment (Information) Act, 1994. I direct the Respondent to pay the Complainant compensation of €500.00 within 42 days of the date of this Decision.

Payment of Wages Act, 1991.-00005411-001

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 5 of the Payment of Wages Act, 1991 in respect of wages due and not paid and accrued annual leave due and not paid on termination of the employment. I direct the Respondent to pay the Complainant –

€841.50 in respect of Wages due and not paid and

€1870.00 accrued annual leave due and not paid.

The amount of €2711.50, subject to any lawful deductions, to be paid to the Complainant within 42 days of the date of this Decision.

Rosaleen Glackin

Adjudication Officer

Date: 02/05/2017