ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009400

Parties:

	Complainant	Respondent
Anonymised Parties	(Assistant)	(Diner)

Complaint:

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-00012317-001	05/07/2017

Venue: Ardboyne Hotel, Navan, Co. Meath.

Date of Adjudication Hearing: 31/08/17 and the 10/10/2017

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and under section 27 of the Organisation of Working Time Act, 1997 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as an assistant from the 1^st of August 2015 to the 31^st of October 2016. She alleges that she was not paid her annual leave entitlements during the course of her employment. She filed a complaint with the Workplace Relations Commission on the 5^th of July 2017.

Summary of Complainant’s Case:

The Complainant was not paid for annual leave that she took during the course of her employment. She alleges that the Respondent is in breach of Section 20(2) of the Organisation of Working Time Act, 1997. She feels that the Respondent was totally unfair to her in not paying her entitlements.

Summary of Respondent’s Case:

The Respondent’s representative stated that the complaint filed by the Complainant is outside the time limits as allowed for under Section 26(4) of the Organisation of Working Time Act, 1997. Therefore the adjudicator does not have jurisdiction to hear this complaint.

Complainant’s Response to the Issue of Time Limits:

The Complainant’s representative stated that the adjudicator should allow an extension of the time limits in line with Section 26 (5) of the Organisation of Working Time Act, 1997.

The Respondent has victimised the Complainant in a number of areas during the course of her employment. She is a foreign national with very poor English and was unaware of her employment rights while working for the Respondent. He took advantage of this fact.

He failed to provide her with a contract of employment within two months of her employment,

He failed to pay her the national minimum wage throughout the course of her employment,

He failed to pay her annual leave entitlements that she had accrued throughout her employment.

When she became aware of this behaviour, she consulted with a solicitor. She then filed her complaints with the Workplace Relations Commission. She feels that she should be allowed an extension of the time limit by virtue of the fact that her employer continued to victimise her throughout the course of her employment.

DECISION ON TIME LIMITS:

Based on the evidence presented by both parties, I find that the evidence presented by the Complainant allows me to extend the time limits by a further 6 months.

Findings and Conclusions:

Based on the evidence presented at the hearings by both parties, I find that the complaint is well-founded.

Decision:

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

The Complainant filed her complaint with the Workplace Relations Commission on the 5^th of July 2017. The Complainant’s employment terminated on the 31^st of October 2016. By extending the time-limit to 12 months, the currency of the complaint runs from the 6^th of July 2016 to the 31^st of October 2016. This covers a period of 16 weeks and 4 days. On average the Complainant worked 33 hours per week. This accrues to 554 hours. 8% of those hours amount to 44.32 hours x 9.15 = €405.52.

Based on the evidence presented at the hearing, I find that the Complaint is well-founded. I order the Respondent to pay to the Complainant compensation in the sum of €405.52 for breaches of Section 20(2) of the Organisation of Working Time Act, 1997. This sum must be paid within a period of 6 weeks from the date of this decision.

Dated: 16/11/17

Workplace Relations Commission Adjudication Officer: John Walsh

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