ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00008044

Complaint(s):

Date of Adjudication Hearing: 17/08/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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 was employed in a restaurant from the 15^th September 2015 until the 20^th of May 2016. He worked approximately 40 hours per week and was paid €9.15. His complaint was received by the WRC on 19^th October 2016.

The Respondent did not attend the hearing. I note the correspondence on the file advising the respondent of the date, time and venue for the hearing.

1) CA- 00007712-001 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977.

Compensation for working on a Sunday.

Complainant’s Submission and Presentation:

The Complainant stated that he had not received any compensation for working on Sundays. He submitted that he worked 6.5 hours on a Sunday and had worked 28 Sundays during the period, earning a total of €1,317.06.

Respondent’s Submission and Presentation:

The Respondent had not made a submission nor were they in attendance at the hearing.

Findings

Sec 14 (1) (b) of the Organisation of Working Time Act states “an employee who is required to work on a Sunday .. shall be compensated by otherwise increasing the employees rate of pay by such an amount as is reasonable having regard to all the circumstances b) by increasing the employees’ rate of pay by such an amount that is reasonable, c) by granting an employee such paid time off as is reasonable, d) or by a combination of two or more of the mean referred to in the preceding paragraph”.

On the uncontested evidence of the Complainant I find that the Respondent has breached Section 14 of this Act.

Decision:

I have decided that the Complainant was not compensated for working Sundays.

I have decided that a premium of time and one third would be reasonable for this industry.

The Respondent is to pay the Complainant a sum of €439.02 (i.e. €1,3017.06/3) in compensation for the economic loss.

2) CA- 00007712-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977.

Rest Periods

Complainant’s Submission and Presentation:

The Complainant stated that he did not receive any breaks in work during his employment with the respondent.

Respondent’s Submission and Presentation:

The Respondent had not made a submission nor were they in attendance at the hearing.

Findings

Section 12 of the Organisation of Working Time Act, 1997, states;

Rests and intervals at work.

2. — (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

On the uncontested evidence of the Complainant I find that the Respondent has breached Section 12 of this Act.

Decision:

I have decided that the Complainant did not getting the correct breaks.

I have decided that the complainant should receive €100.00 in compensation for breach of his rights under this Act.

3) CA- 00007712-003 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977.

Weekly Rest Periods

Complainant’s Submission and Presentation:

The Complainant stated that he never got two days off in a row but he did get every Saturday off.

Respondent’s Submission and Presentation:

The Respondent had not made a submission nor were they in attendance at the hearing.

Findings

Section 13 of the Organisation of Working Time Act states;

Weekly rest periods.

3. — (1) In this section “ daily rest period” means a rest period referred to in section 11 .

(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.

(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—

As the complainant was granted a day off one day per week I find that the Respondent has not breached Section 13 of this Act.

Decision:

I have decided that the Complainant did get the correct weekly rest periods and the complaint fails.

4) CA- 00007712-004 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1977.

Entitlement in respect of holiday pay

Complainant’s Submission and Presentation:

The Complainant stated that he did not receive holiday payment during his employment with the respondent. The total amount of outstanding holiday pay is €742.58.

Respondent’s Submission and Presentation:

The Respondent had not made a submission nor were they in attendance at the hearing.

Findings

Section 19 of the Act States

9. — (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

( a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

Section 20 of the Acts states

(2) The pay in respect of an employee’s annual leave shall—

( a) be paid to the employee in advance of his or her taking the leave,

( b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

( c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee’s remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

On the uncontested evidence of the Complainant I find that the Respondent has breached Section 20 of this Act.

Decision:

I require the Respondent to pay the Complainant €742.58 for the economic loss due to the breach of her rights under the Organisation of Working Time Act, 1977.

5) CA- 00007712-005 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.

Public Holiday entitlements

Complainant’s Submission and Presentation:

The Complainant stated that that he was never paid for Public Holidays. The total amount unpaid was €354.57.

Respondent’s Submission and Presentation:

The Respondent had not made a submission nor were they in attendance at the hearing.

Findings

Section 21 of the Act states

Entitlement in respect of public holidays.

1. — (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

( a) a paid day off on that day,

( b) a paid day off within a month of that day,

( c) an additional day of annual leave,

( d) an additional day’s pay:

On the uncontested evidence of the Complainant I find that the Respondent has breached Section 21 of this Act.

Decision:

I require the Respondent to pay the Complainant €354.57 for the economic loss due to the breach of his rights under the Organisation of Working Time Act, 1977.

6) CA- 00007712-006 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994.

Statement of Terms of Employment

Complainant’s Submission and Presentation:

The Complainant stated that that he was given a contract of employment.

Respondent’s Submission and Presentation:

The Respondent had not made a submission nor were they in attendance at the hearing.

Findings

Section 3 of the Terms of Employment (Information) Act, 1994 states:

Written statement of terms of employment.

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,

( fa ) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, ]

(g) the rate or method of calculation of the employee ’ s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

( ga ) that the employee 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, ]

(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.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.

On the uncontested evidence of the Complainant I find that the Respondent has breached Section 3 of this Act.

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 require the Respondent to pay the Complainant €100.00 in compensation for the breach of his rights under this Act.

Dated:   16 November 2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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