ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005063

Parties:

	Complainant	Respondent
Anonymised Parties	A Dressmaker	A Clothes Shop

Representatives

Independent Workers Union

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00007134-002	21/09/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00007134-004	21/09/2016

Date of Adjudication Hearing: 13/04/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Location of Hearing: Room 4.01 Lansdowne House

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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 worked for the respondent as a ‘pattern and dressmaker’, (described in the Contract of Employment as a ‘Dress Maker and Producer’).

Her employment terminated on June 17^th 2016.

She claimed she was owed certain monies by the respondent and asked her union to make representations on her behalf.

It did so but unsuccessfully and the matter was referred to adjudication.

Summary of Complainant’s Case:

There are three claims.

The first is for four public holidays which she says she were not given. Her claim is for €416.

The second is for hours worked for which she was not paid in the amount of €546.00. He pay rate was €13.00 per hour.

Finally she did not receive any annual leave for the duration of her employment and claims €158 for 2015 and €578 for 2016.

Summary of Respondent’s Case:

The respondent did not attend the hearing. No explanation was offered for the failure to do so.

Findings and Conclusions:

The respondent did not attend the hearing but in correspondence to the union appeared not to dispute some of the claims, but sought to counterclaim in respect of damage to property it alleged was caused by the complainant.

The limitations on the rights of employers to make deductions from wages is clearly set out in the Payment of Wages Act.

The complainant’s contract of employment does contain a provision for;

‘deductions provided under written company rules and regulations published from time to time. After giving you written notice and by your agreeing to the terms and conditions set out in this letter you consent to the deduction of such sums’.

No evidence was offered as to the existence of such ‘company rules and regulations’ and I very much doubt if they exist.

It may be even more doubtful whether any such deductions would be lawful, particularly in relation to damage to company property where the extent of any liability by an employee would have to be explicitly stated and agreed.

The date of the current complaint was September 21^st 2016.

The Labour Court has drawn attention to, and determined in a recent case the correct time limits in such a case.

In the case of Mitchell v Tapastreet DWT 2176, where the complaint had been referred to the WRC on November 5^th 2015 it pointed out that;

‘By application of the time limit provided for at Section 27(4) of the Act the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the Workplace Relations Commission, therefore, the cognisable period covered by the claim is the six-month period from 6^thMay 2015 until 5^thNovember 2015.’

In other words, the six months before the complaint was referred to the WRC.

In relation to annual leave the Court stated;

The cognisable period covered by the claim is the six-month period from 6^thMay 2015 until 5^thNovember 2015 [being the date of the complaint in that case]. The relevant leave year is defined by Section 2(1) of the Act, it provides that a leave year is a year commencing on 1^stApril. Hence, any contravention of the Act arising from the Respondent’s failure to pay the Complainant in respect of outstanding annual leave on the cessation of his employment accrued within the period, i.e. from 1^stApril to 16^thOctober 2015. In so far as the complaint relates to the Respondent's failure to pay the Complainant in respect of annual leave taken on dates prior to those dates, it is statute-barred and, to that extent, it is not cognisable by the Court.

Therefore in this case the cognisable period would be from March 22^nd 2016 to the date of the complaint on September 21st except, of course that the complainant terminated her employment on June 17th. Only one public holiday falls within this period. This would entitle her to one day’s pay which I assess at €104.00

Similarly, her claim for annual leave back to the date of the commencement of her employment is outside the statutory time limits and only that portion of it from March is reckonable, a period of just under two months . Her hourly rate was €13 for hours which varied somewhat but evidence was provided that they were in an average range of twenty-eight to thirty-four.

I assess her entitlement based on eight, thirty hour weeks to 8% of those hours which, at €13 per hour I round up to €250.00

She also claims €546.00 for hours worked but not paid. I accept her claim in respect of these hours on the basis of her direct evidence at the hearing which I found to be credible.

Decision:

Section 41 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 uphold complaint CA-00007134-002 under section 27 of the Organisation of Working Time Act 1997 and award her €104 in respect of a public holiday and €250 in respect of annual leave.

I also uphold complaint CA-00007134-004 under section 6 of the Payment of Wages Act, 1991 and award her €546.00 gross subject to statutory deductions.

Dated: 22^nd May 2017