ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00005519

Complaints for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00007692-001	18/10/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00007692-002	18/10/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00007692-003	18/10/2016

Date of Adjudication Hearing: 20/03/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Location of Hearing: Room G.06 Lansdowne House

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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 Dentist from 10^th September 2013 to 20^th April 2016. She was paid €644.62 on average based on payslips provided. She has claimed that she didn’t get a written contract of employment, is owed wages and was constructively dismissed.

1) Terms of Employment (Information) Act CA 7692-002

Summary of Complainant’s Case:

The Complainant stated that she did not get a written contract of employment. All she received was brief information but nothing in a contract form. She has sought compensation.

Summary of Respondent’s Case:

The Respondent did not attend and was not represented.

Findings and Conclusions:

I note correspondence on the file advising both parties of the details of the hearing.

Based on uncontested evidence I find that the Complainant did not get a written contract of employment.

Sec 3 (1) of this Act states, “ An employer shall, not later than 2 months after the commencement of an employees 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”

I find that the Respondent has breached Sec 3 of this Act.

I note that Sec 7 (2) (d) of the 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”.

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 have decided that the Respondent has breached Sec 3 of this Act.

I require the Respondent to pat the Complainant compensation of €1,250 within six weeks of the date below.

2) Payment of Wages Act 1991 CA 7692-001

Time limit

The Complainant requested an extension to the time limit. She stated that she did not get a contract of employment, which would have given her important information about her employment and her rights. She was not aware of her rights in raising a grievance.

I have decided to extend the time for the reasons as outlined above.

I find that she was a non-national and a contract of employment would have been particularly important. The complaint was presented to the Commission on 18^th October 2016. Therefore the period that may be investigated is 19^th October 2015 to 20^th April 2016, the date of termination of employment.

Summary of Complainant’s Case:

1)Wages

She has claimed wages owing for February, March and April 2016 amounting to €2,733.00.

2) Accountancy Fee

Her employer deducted €7.50 per week accountancy fee. This was not agreed. It was an illegal deduction.

3)Dental Registration Fee

Her employer deducted the Dental Registration fee of €200 per year without agreement. The employer advised her that if she stayed 2 years or more they would pay it. She was with this employer more than 2 years. This was an illegal deduction.

4) Indemnity Insurance

Her employer deducted €2,395 in respect of indemnity insurance.

5) Holiday pay

She did not get holidays or holiday pay.

6) Public Holidays

If the practice was closed on a Public Holiday she had to work additional hours to compensate for these hours when the business was closed. She did not receive any compensation for Public Holidays.

Summary of Respondent’s Case:

The Respondent did not attend and was not represented at the hearing.

1)Wages

The Respondent did not comment on this.

2)Accountancy Fee

The Respondent did not comment on this.

3)Dental Registration Fee

The Respondent did not comment on this.

4) Indemnity Insurance

The Respondent did not comment on this.

5) Holiday pay

The Respondent subsequent to the hearing through his Accountant supplied payslips dealing with holiday pay. They stated that she was paid 8 % of hours worked. They also supplied one request form for holidays for the period 28.1.2016 to 26.2.2016.

6) Public Holidays

The Respondent subsequent to the hearing through his Accountant supplied payslips dealing with Public holiday pay.

Findings and Conclusions:

Based on the uncontested evidence at the hearing and the information provided by the Respondent’s accountant subsequent to the hearing I find as follows:

1)Wages

I find that she was not paid wages in respect of February, March and April 2016 amounting to €2,733.00 gross.

2)Accountancy Fee

I find that an employer may not make a deduction from an employee’s wages unless it is a statutory deduction or is provided for in the contract of employment or agreed to in writing .

Section 5 (1) of this Act provides, “an employer shall not make a deduction from the wages on an employee (or receive any payment from an employee) unless –

(a) The deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) In the case of a deduction, the employee has given his prior consent in writing to it.

This deduction was not provided for in any of the above therefore I find that it is an illegal deduction. In the allowable period for investigation 19^th October 2015 to 20^th April 2016, a period of 26 weeks I find that there were illegal deductions of €7.50 X 26 €195.00

3)Dental Registration Fee

I note the Complainant’s evidence that she was advised by the Respondent that if she stayed 2 years or more they would pay it.

I find that she was in the employment in excess of 2 years therefore I find that in the allowable period one deduction of €200.00 was illegal.

4) Indemnity Insurance

No evidence was presented to the hearing regarding any arrangement regarding the payment of this insurance. Therefore I find that this complaint is inconclusive and so I find that this part of the complaint fails.

5) Holiday pay

I note the conflicting evidence regarding to the receipt of holidays

I note the Respondent produced evidence of a holiday request, which indicates that she took holidays.

I also note the Accountant’s assertion that she was paid 8% of all hours worked.

I note the payslips produced by the Respondent that shows holiday pay in respect of 2013, 2014 and 2015.

Therefore on the balance of probability I find that she was paid holidays.

I find that this part of the complaint fails.

6) Public Holidays

I note that the Respondent supplied payslips in respect of 2 Public Holidays in 2014. There were none supplied in respect of 2015 or 2016.

Therefore I have no evidence of compensation for the allowable period of investigation 19^th October 2015 to 20^th April 2016.

I find that she was entitled to compensation for all Public holidays in that period irrespective of whether she worked them or not.

I find that there were the following Public Holidays in that period October 2015, Dec 25^th & 26^th, January 1^st March 17^th , March 28^th Easter Monday = 6 days.

I find that she is entitled to a daily payment of €128.92 X 6 = €773.52

Sec 6(2) of this Act “the commissioner shall order the employer to pay to the employee compensation of such an amount … not exceeding (a) the net amount of wages”

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 have decided that the Respondent has breached Sec 5 of this Act.

I order the Respondent to pay the Complainant €3,901.52 subject to statutory deductions, (net wages) within six weeks of the date below.

3) Unfair Dismissals Act 1977 CA 7692-003

Summary of Complainant’s Case:

The Complainant stated that because of the treatment by the Respondent she had no option but to resign her position.

Her wages were not paid for the previous three months of her employment. There were issues regarding holidays and Public holidays, there were unlawful deductions from her wages concerning accounting fees, indemnity insurance and registration fees , wages, all the subject of a complaint under the Payment of Wages Act, see above. The Respondent then blamed her for the loss of a State contract , which she denied.

She resigned her position on 20^th April 2016. She commenced maternity leave on 2^nd May 2016. Upon completion of her maternity leave she became self employed. She had no income for the period 20^th April 2016 to 2^nd May 2016.

She has claimed that she was constructively dismissed and has sought compensation.

Summary of Respondent’s Case:

The Respondent did not attend and was not represented at the hearing.

Findings and Conclusions:

Based on the uncontested evidence before this hearing I find as follows:

Definition of Constructive Dismissal

Sec 1(b) of this Act states, “the termination by the employee of his/her contract of employment with his/her employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

I refer to findings above in respect of the complaints under the Payment of Wages Act.

I have found that there were unlawful deductions made from her wages.

I note that she was blamed for the loss of a State contract.

I have found that the conduct of the Respondent was unreasonable and therefore it was reasonable for her to resign her position.

I find that she was constructively dismissed and compensation is warranted.

I note that the financial loss occurred between 20^th April and 2^nd May 2016, which is a period of 2 weeks.

Sec 7 (1) (c) (ii) of the Unfair Dismissals Act 1977 states, “if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have decided that the Complainant was constructively dismissed.

I have decided that compensation is warranted.

I have decided that the Respondent should pay the Complainant compensation and I order the Respondent to pay her €2,578.48 (4 weeks pay) within six weeks of the date below.

Dated: 11/05/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words:

No contract of employment, wages, constructive dismissal

ADJ-00005519

ADJUDICATION OFFICER DECISIONS

Complaints for Resolution:

Procedure:

Background:

The Complainant was employed as Dentist from 10th September 2013 to 20th April 2016. She was paid €644.62 on average based on payslips provided. She has claimed that she didn’t get a written contract of employment, is owed wages and was constructively dismissed.

1) Terms of Employment (Information) Act CA 7692-002

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

2) Payment of Wages Act 1991 CA 7692-001

Summary of Complainant’s Case:

Summary of Respondent’s Case:

I find that she was in the employment in excess of 2 years therefore I find that in the allowable period one deduction of €200.00 was illegal.

Sec 6(2) of this Act “the commissioner shall order the employer to pay to the employee compensation of such an amount … not exceeding (a) the net amount of wages”

Decision:

3) Unfair Dismissals Act 1977 CA 7692-003

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

The Complainant was employed as Dentist from 10^th September 2013 to 20^th April 2016. She was paid €644.62 on average based on payslips provided. She has claimed that she didn’t get a written contract of employment, is owed wages and was constructively dismissed.