ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009718
| Complainant | Respondent |
Anonymised Parties | An employee | A security company |
Representatives | self | Not present at hearing |
Complaint(s):
|
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-00012669-001 | 19/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 |
CA-00012669-002 | 19/07/2017 |
Date of Adjudication Hearing: 13/10/2017
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
The hearing of this matter was arranged to take place on Friday 13th October 2017 at 9.00am in the offices of the Workplace Relations Commission, Lansdowne House, Lansdowne Road, Dublin 4. The complainant attended as scheduled. The respondent failed to attend. Correspondence issued to the respondent outlining the date, time and venue of the hearing some six weeks in advance of the hearing date. On the day of the hearing attempts were made to contact the respondent on both his land line and mobile telephone in relation to his attendance, these attempts to contact the respondent were unsuccessful. I waited until 9.30am in the event that the respondent was delayed. There was no further contact from the respondent.
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The complainant was employed by the respondent from 28th November 2016 until 9th May 2017. The complainant states that he was not issued with a contract of employment within two months of his start date. The complainant states that he was not paid outstanding holiday pay when he left employment with the respondent in May 2017. |
Summary of Complainant’s Case:
Complaint under Terms and Conditions of Employment (CA-00012669-002). The complainant commenced employment on 28th November 2016 as a part-time Roving Covert Escort Officer. The complainant’s primary duty was to escort shipments of goods, normally cigarettes, from one warehouse to another. He would drive an unmarked car escorting trucks of goods. Normal hours of work commenced around 1.00am / 2.00am and a typical working shift would last approximately 7 hours. The complainant was not issued with a contract of employment until he was actually leaving the employment of the respondent and no outstanding holiday pay was paid to him. |
Summary of Respondent’s Case:
The respondent did not attend the hearing. |
Findings and Conclusions:
Terms and Conditions of Employment (CA – 00012669-002). In relation to the issue of the contract of employment the legislation provided by the Terms of Employment (Information) Act 1994 obliges an employer to issue a statement to an employee within two months of commencement of employment. This statement must contain the following information: The full names of both employer and employee The address of the employer The place of work or, alternatively, a statement specifying that the employee is required or permitted to work at various places The title of the job or the nature of the work The date of commencement of the contract of employment In the case of temporary contracts, the expected duration or in the case of a fixed term contract the date on which the contract expires The rate or method of calculation of the employee’s remuneration and details as to what intervals the payment of remuneration shall be made Any terms or conditions relating to hours of work including overtime Any terms or conditions relating to paid leave (other than paid sick leave) Any terms or conditions relating to sick leave or for payment due to incapacity as a result of an injury Details of pensions or pension schemes The period of notice which the employee is required to give and entitled to receive whether by statute or contract. If a specified period of notice is not provided for then then the method or manner by which notice is to be calculated is to be specified. Reference must be made 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. This requirement only applies to contracts entered into after the commencement of the Act (16th May 1994). If after the commencement of the Act an employee is required to work outside the state for a minimum period of one month the following details are to be given to the employee or added to the above-mentioned statement: The period of employment outside the state The currency in which the employee is to be remunerated in respect of that period Any benefits in cash or kind for the employee while working outside the state The terms and conditions applying to the employee’s repatriation. Employers are obliged to notify employees of any changes in their terms and conditions of employment as soon as possible after the change but not later than one month thereafter.
From the evidence of the complainant I accept that the he was not issued with a contract until he was leaving his employment and not within two months of commencement. The contract issued to the complainant (when he was leaving) is not signed by the employer and is dated on the front page – 25/07/2016 and on the last page – 26/09/2016. The complainant commenced employment on 28/11/2016 and left on 09/05/2017. Both dates entered on the contract are months before the complainant actually commenced employment. Complaint under the Payment of Wages Act, 1991 (CA-00012669 – 001) – Heard under The Organisation of Working Time Act 1997. This complaint relates to the respondent’s alleged failure to pay wages for untaken holidays when the complainant was leaving the respondent’s employment. The complainant has made a mistake when he was completing the complaint form; I heard the complaint under s.27 of the Organisation of Working Time Act 1997. The complainant informed me that his hourly rate of pay was €11.85 per hour for all hours worked. This payment includes holiday pay and an allowance for public holiday pay. Section 20 of the Organisation of Working Time Act 1997 looks at payment for annual leave: 20 (2) The pay for 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 and lodging as will not be received by the employee whilst on annual leave. An employer cannot discharge the obligation to provide paid holidays by incorporating a general composite holiday payment into an employee’s basic pay. In Fasercourt Ltd v Shay O’Brien (DWT743/2007) this argument was made on behalf of an employer before the Labour Court and was unsurprisingly rejected. I find the complaint is well found. |
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.
Terms and Conditions of Employment (CA – 00012669-002). The complaint is well found and I have decided that a compensation payment equivalent to four weeks wages be paid to the complainant i.e. 35 hours x 4 x 11.85 = €1,659.00 – to be paid as compensation. Complaint under the Payment of Wages Act, 1991 (CA-00012669 – 001) – Heard under The Organisation of Working Time Act 1997. The complaint worked from 28/11/2016 to 09/05/2017 – a period of approximately 5 months during which he took no holidays, his entitlement is therefore 8.33 days x 7 hours x €11.85 = €690.97 - to be paid as remuneration. Payments should be made within 42 days from the date shown below |
Dated: 20 November 2017
Workplace Relations Commission Adjudication Officer: Jim Dolan