ADJ-00004906

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00004906

Parties: 

Complaint(s):

Date of Adjudication Hearing: 04/04/2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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). 

Preliminary Issue 

The respondent submitted that the name of the respondent was incorrect and that he had made the claimant’s representative aware of this fact. The respondent was asked had he any objection to the correct name now being place on the claim form and he replied that he had no objection. The respondent was thanked for his co-operation in this matter.

The complaint form was amended.

CA-00006765-005

Background 

The claimant was employed by the respondent on the 23rd October 2015 to the 2nd July 2016. She worked up to 40 hours per week as a waitress in the bar. She was paid €400 cash each week. The claimant submitted that she did not get a contract of employment in accordance with the act.

The respondent stated that he had never given a contract of employment .

Findings 

The Terms of Employment (Information) Act 1994 section 3 states; 

3—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say— 

(a) the full names of the employer and the employee, 

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ), 

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places, 

(d) the title of the job or nature of the work for which the employee is employed, 

(e) the date of commencement of the employee's contract of employment, 

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires, 

(g) the rate or method of calculation of the employee's remuneration, 

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, 

(i) any terms or conditions relating to hours of work (including overtime), 

(j) any terms or conditions relating to paid leave (other than paid sick leave), 

(k) any terms or conditions relating to— 

(i) incapacity for work due to sickness or injury and paid sick leave, and 

(ii) pensions and pension schemes, 

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, 

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made. 

(2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given. 

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way. 

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer. 

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter. 

(6) (a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1)) as may be specified in the order and employers shall comply with the provisions of such an order. 

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 evidence and in line with the spirit of the legislation I find the complaint to be well founded and I award the claimant €600 in compensation. 

CA-00006765-001 

Background 

The claimant was employed by the respondent on the 23rd October 2015 to the 2nd July 2016. She worked up to 40 hours per week as a waitress in the bar. She was paid €400 cash each week.

It was submitted that in Mid-June 2016 the claimant was waiting contact from the respondent to confirm what hours she was to work in the bar. It was submitted that the respondent did not make contact with the claimant however on Saturday the 2nd July she received a text message from him indicating that her position as waitress had been terminated. In an email to the claimant on the 29thJuly 2016 the respondent indicated that he assumed that she would have no difficulty findings another job or he thought she may have gone back to France. The claimant replied the same day and said that she had not heard from him for a whole month. That she said he had given her no indication of further hours of work or whether her post was still available,

The respondent stated that issues had arisen with the claimant in relation to her performance and till matters.

Findings 

I find that based on the evidence the respondent dismissed the claimant. I find that regards of the merits of the respondent arguments in relations to the claimants performance I find that she had a right to fair procedures and the right to defend herself against any allegations and to get a fair hearing before the respondent made his decision to dismiss her.

Recommendation 

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute

I find that the claimant was unfairly dismissed and I award her 2 weeks’ pay as compensation.

CA 00006765-003

Payment of Wages Act 1991 

The claimant was employed by the respondent on the 23rd October 2015 to the 2nd July 2016. She worked up to 40 hours per week as a waitress in the bar. She was paid €400 cash each week

The claimant submitted that she got her wages each week in cash and left in an envelope in the bar with no payslip.

The respondent submitted that the claimant to give him a PPS number or a tax allowance certificate. Despite repeated requests and that he had been on to revenue about it.

Findings 

I find that in accordance with current regulation there is an onus on the respondent to deduct tax and PRSI Contributions along with the USC from an employee’s wages and where employees failed to provide the necessary documentation the respondent can apply emergency rule. I also find that are other matters that require to be dealt with by the relevant authorities. I find that the claimant was dismissed without due notice

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 evidence I find the complaint to be well founded and I find that the claimant is entitled to one week’s pay of €400

Ca -00006765-002

Ca-0000 6765-004

Organisation of Working Time Act 1997 

The claimant was employed by the respondent on the 23rd October 2015 to the 2nd July 2016. She worked up to 40 hours per week as a waitress in the bar. She was paid €400 cash each week the claimant submitted that the respondent stated that he had paid the claimant her full holiday pay or Public Holidays. The claimant submitted that she was owed 8 months holiday pay of €1080 and €560 in respect of Public Holiday pay

The respondent stated that he gave the claimant a bonus of €300 at Christmas.

Findings 

I find the respondent had no records of payment for holidays or what those payment s cover such as holidays or Public holidays. I find that due to the lack of evidence from the respondent at the hearing I am making the following

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.

I find the complaint to be well founded in respect of Holiday pay and I award the claimant €1080 net and for breach of the act I award the claimant €400 in compensation.

I find the complaint to be well founded   in respect of 7 Public Holidays and I award the claimant €560 net  and for breach of the act I award the claimant €200 in compensation.

Dated:               30 May 2017

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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