ADJUDICATION OFFICER DECISIONS & RECOMMENDATION
Adjudication Reference: ADJ-00003641
Parties:
| Complainant | Respondent |
Anonymised Parties | A Bar Worker | A Public House |
Complaints and dispute:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00005113-001 | 01/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005113-002 | 01/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005113-003 | 01/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005113-004 | 01/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005113-005 | 01/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005113-006 | 01/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005113-007 | 01/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00005113-008 | 01/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00005113-009 | 01/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00005113-010 | 01/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00005113-011 | 01/06/2016 |
Date of Adjudication Hearing: 16/02/2017
Procedure:
On the 1st June 2016, the complainant referred 11 complaints to the Workplace Relations Commission pursuant to the Payment of Wages Act, the Terms of Employment (Information) Act, the Organisation of Working Time Act, the Employment Equality Act and a dispute pursuant to the Industrial Relations Act. On 10th January 2017, the complainant referred a further complaint pursuant to the Organisation of Working Time Act and this is subject to adjudication report ADJ 6616.
The complaints were scheduled for adjudication on the 16th February 2017. The complainant was represented by Richard Grogan & Company Solicitors. Peninsula Business Services represented the respondent company and two witnesses, a company director and the HR administrator attend on its behalf.
In accordance with section 41 of the Workplace Relations Act, 2015, section 79 of the Employment Equality Acts, 1998 - 2015 and section 13 of the Industrial Relations Acts 1969 following the referral of the complaints and dispute to me by the Director General of the Workplace Relations Commission, I inquired into the complaints and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and dispute.
Background:
The complainant is employed by the respondent pub restaurant and his principal duty was holding an advertising sign for the respondent venue. He raises various complaints regarding his employment. |
Summary of Complainant’s Case:
The complainant relied on the Labour Court authority of Gencat Ltd v Davoust (TED 1632) in advancing his claim pursuant to the Terms of Employment (Information) Act. He submitted that he had not received the contract the respondent states it provided on the 16th April 2014. This document does not specify the hours of work, the annual leave year, the full name of the employer, a reference to PRSA and it is not signed by the respondent.
In evidence, the complainant outlined that he dropped in his CV to the respondent, a busy hotel and received a phone call from a named manager. The complainant attended an interview and was told that his role was to hold an advertisement board enticing passers-by into the respondent public house and hotel. He was to do this role seven days a week and there was no mention of breaks. He commenced his employment on the 27th March 2014. He received his first pay after two weeks and received a pay slip on this occasion. He had to pursue the respondent to supply other pay slips and this took eight months to get. They were issued in July 2015. They were sent by email and he was able to show one pay slip from the 3rd January 2015. He had sought the pay slips via a data access request.
In respect of the claim made pursuant to the Organisation of Working Time Act, the complainant said that he did not take daily rest breaks prior to the incident of the 10th March 2016. He pointed to the schedules submitted by the respondent and said that they did not record daily rest breaks. He referred to three dates as examples: the 2nd March and the 3rd and 4th April. He started getting breaks in November 2015 and took these in a quiet area of the public house part of the hotel. This could be difficult on busy nights. The complainant said that he was paid the minimum wage, so was not paid a Sunday premium. As no Sunday premium was paid, there was also a shortfall in his pay for public holidays and annual leave. The complainant worked seven days a week, so did not receive the weekly rest break of 35 hours. This was a breach of section 13 of the Act.
In respect of the claim made pursuant to the Employment Equality Act, the complainant said that on the 10th March 2016, while in a public area and holding the sign, an unknown person approached him from behind and hit the sign so that it hit the complainant and knocked him unconscious. He went to a named hospital and was off work for one week. A named manager told him to go to the Garda station to report it. The complainant obtained a medical certificate on the 22nd April 2016 and presented this to the manager, who had told him that he needed a letter to say he was fit to return. The manager also said that the complainant needed to get “a proper letter from a proper doctor”. The complainant went back to the hospital and returned with the same certificate. The manager said that he could tell the complainant to “f*** off”. The complainant said that he had then been working three days a week, working over the weekend and cleaning. His last day at work was the 11th April 2016.
In respect of the Payment of Wages claim, the complainant said that he was entitled to recover €442 following the reduction in his hours and based on his 43 hour week.
In cross-examination, the complainant accepted that he started to take 15-minute breaks per day from November 2015. The manager had told him that he was obliged to take breaks and that this would be 15-minutes in the middle of his shift. It was only after Christmas 2015 that he was required to clock in. The complainant was asked for the medical certificate and he replied that he could get it.
In closing submissions, the respondent had not checked that daily rest breaks were taken and had also not provided a weekly rest break. This was clear from the respondent’s own documentation. He submitted that he is entitled to compensation for the failure to pay a Sunday premium. Public holidays had not been paid and were still owing. The complainant had sought his contract in June 2016 but it was not forthcoming. The EE2 form was not replied to, in particular with regard to the medical certificate. Inferences could now be drawn and this failure raised the issue of the respondent’s credibility. In relation to the Industrial Relations dispute, the complainant sought a health and safety statement in his own language, Spanish. |
Summary of Respondent’s Case:
In respect of the claim pursuant to the Terms of Employment (Information) Act, the respondent stated that the complainant had not been prejudiced by the alleged defects.
The company director gave evidence. He was aware that the complainant commenced in early 2014. He had handed the complainant a contract and asked him to read it through and then sign it. The company director signed one copy and the complainant took a copy with him, which the company director never received back. He asked the manager to raise this with the complainant after three or four months, but the complainant replied that he did not know what the manager was talking about.
The company director outlined that everyone received pay slips and they used a named payroll software. There were times that they had recorded an incorrect email address for an employee. In respect of daily rest breaks, they would depend on the role and the length of the shift. The respondent could not check everyone and the onus was on the staff. There is a sign displaying rest break entitlements in the workplace and a sign-in sheet to record breaks. He said that the complainant had not been clocking in, and they now provide rosters that state that employees must record their hours. The company director acknowledged that no Sunday premium had been paid and this would be rectified in the next week. In respect of weekly rest breaks, he said that he put his hands up, but the complainant did not work a 48-hour week. He worked 40 hours spread over seven days. The complainant had asked the manager for as many hours as possible, so he was assigned roles in taking in deliveries, working on the floor and displaying the sign. The respondent also indicated that it would discharge public holidays due.
In respect of the Payment of Wages claim, the respondent said that there was no breach. The complainant did not have an entitlement to a 43-hour week and he was paid for every hour worked. The respondent denied that the manager used the works attributed to him by the complainant and that it never received the certificate of the 22nd April 2016. The complainant had been due to do cleaning on a Friday but complained of dizzy spells. He has asked for a doctor’s note to say that he could go back to work. The complainant replied that he could not obtain such a note as he was still sick. He came back later looking for other documentation. There was no issue with the nationality of the doctor. It was submitted that even if what was claimed took place, it did not constitute discrimination against the complainant.
In cross-examination, the company director accepted that staff were scheduled on weekly and monthly rosters. He did not know what action was taken in respect of staff who did not take their breaks. He had mentioned the need for staff to take breaks and did not point to texts or emails to this effect. It was put to the company director that there were long periods of time where the complainant did not take breaks. It was put to the company director that the lack of response to the complainant’s EE2 form and the notice of particulars of the 1st June 2016 meant that an inference of discrimination could be drawn in relation to the doctor. It was put to the company director that the sign-in books had not been provided; he replied that the complainant had been advised verbally to take breaks.
In closing submissions, the respondent said that the complainant speaks English and the witness present at the adjudication could translate. The EE2 form has not named the manager who made the remark regarding the doctor and only referred to manager generally. The online clock-in system was introduced in October 2015. |
Findings and Conclusions:
CA-00005113-001 This complaint is made pursuant to the Terms of Employment (Information) Act. The complainant outlines that the statement provided by the respondent does not comply with section 3 of the Act, including that it was not signed by the respondent. While the deficiencies in the statement may be described as technical, the legal obligation on the employer is to provide a compliant statement of the terms of the employee’s employment. This is of particular relevance for an employee who receives minimum wage. Taking account of the extent of the breach, I award redress of €250.
CA-00005113-002 This complaint is made pursuant to the Organisation of Working Time Act in relation to hours of work, namely that he had to work on public holidays and did not receive his entitlements. He also states the Sunday premium was not included in public holiday pay. Moreover, public holiday pay was not pay for May 2016. Having considered the evidence, the complainant is entitled to one day’s public holiday for the May 2016 public holiday. The other issues are addressed in other complaints.
CA-00005113-003 This complaint is made pursuant to the Organisation of Working Time Act in relation to hours of work, in particular public holiday and annual leave pay to include Sunday premiums. Regulation 3 of the Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 (S.I. No. 475/1997) provides: “3. (1) The normal weekly rate of an employee's pay, for the purposes of sections 20 and 23 of the Act (hereafter in this Regulation referred to as the "relevant sections"), shall be determined in accordance with the following provisions of this Regulation. (2) If the employee concerned's pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) that is paid in respect of the normal weekly working hours last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs. (3) If the employee concerned's pay is not calculated wholly by reference to any of the matters referred to in paragraph (2) of this Regulation, the normal weekly rate of his or her pay, for the purposes of the relevant sections, shall be the sum that is equal to the average weekly pay (excluding any pay for overtime) of the employee calculated over— (a) the period of 13 weeks ending immediately before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs, or (b) if no time was worked by the employee during that period, over the period of 13 weeks ending on the day on which time was last worked by the employee before the annual leave (or the portion thereof concerned) commences or, as the case may be, the cesser of employment occurs.”
The complainant is correct that the normal weekly rate ought to include Sunday premium payable to an employee, in this case according to the Sundays worked by the complainant, as an employee with variable hours, in the 13 weeks prior to any public holiday. I award redress of €250 in this regard.
CA-00005113-004 This complaint is made pursuant to the Organisation of Working Time Act in relation to pay. He asserts that he was not paid the correct rate of public holiday pay. This is an overlapping claim and addressed in CA-00005113-003. I therefore deem CA-00005113-004 not well-founded.
CA-00005113-005 This complaint is made pursuant to the Organisation of Working Time Act in relation to hours of work, in particular that the respondent breached section 12 in respect of daily rest breaks. This is an overlapping claim and I have awarded redress pursuant to CA-00005113-008. The complaint in CA-00005113-005 is, therefore, deemed not well-founded.
CA-00005113-006 This complaint is made pursuant to the Organisation of Working Time Act in relation to payment of a Sunday premium and that he worked six hours on Sundays. The complainant was not paid a Sunday premium and regularly worked Sundays. I find that the claim is well-founded and award the complainant €750 for this breach.
CA-00005113-007 This complaint is made pursuant to the Organisation of Working Time Act in relation to hours of work, in particular that the complainant was not afforded a weekly rest break. Having considered the evidence, I find that this claim is well-founded. Taking account of the working pattern of the complainant – shift of four or five hours every day, I award redress of €500.
CA-00005113-008 This complaint is made pursuant to the Organisation of Working Time Act in relation to hours of work, in particular that prior to the 10th March 2016, the complainant was not afforded regular 15-minute breaks. The respondent was not active in ensuring that the complainant could take rest breaks, and could not show that they had been taken. I award €500 as redress for this breach.
CA-00005113-009 This complaint is made pursuant to the Employment Equality Act regarding discrimination on grounds of race. Section 6 of the Employment Equality Act provides as follows in relation to discrimination and discrimination by association: “6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds' ) which — (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned, (b) a person who is associated with another person — (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.”
There was a conflict in evidence regarding the conversations between the complainant and his line manager. The line manager did not attend the adjudication and it, therefore, follows that the evidence of the complainant must be preferred to the submissions made on behalf of the respondent. It follows that I find as fact that the line manager challenged the credibility and weight to be attached to the medical certificate submitted by the complainant.
The views attributable to the line manager are distasteful in so much as they appear to question the credibility of the certificate because of the imputed race of the signatory doctor. It is clear that the words attributed to the line manager cannot amount to discrimination of the complainant. The complainant did not advance evidence of being subject to less favourable treatment because of his race or nationality (being a citizen of Venezuela). While he said he was subject to less favourable treatment because of imputed race of the doctor who signed him off as sick, there is no less favourable treatment of the complainant. The complainant, therefore, has not established a prima facie case of discrimination. Because there was no less favourable treatment, it is not necessary to consider whether the relationship between the complainant and doctor could fall within the rubric of discrimination by association. The failure to reply to the EE2 form does not, of itself, raise an inference of discrimination.
CA-00005113-010 This complaint is made pursuant to the Payment of Wages Act in relation to pay, in particular that he was not paid for hours when he was not rostered for work. The complainant’s case is that he was entitled to a certain amount of rostered hours on his return from sick leave; he claims recovery of the wages due following the shortfall in his rostered hours. It is clear from the contract of employment and the company handbook, the complainant did not have of a contractual right to a certain number of hours. Rostered hours could vary, according, inter alia, to company needs. It follows that there is no basis for the complainant to recover for the hours he was not rostered.
CA-00005113-011 This dispute was referred pursuant to the Industrial Relations Act and relates to the failure to provide a Health and Safety Statement to the complainant in Spanish. Given the complainant’s proficiency in English, there is no basis to make a recommendation in favour of the complainant in this regard. |
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.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00005113-001 I find that this complaint made pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay the complainant redress of €250.
CA-00005113-002 I find that this complaint made pursuant to the Organisation of Working Time Act is well-founded and the complainant is entitled to one day’s public holiday for the May 2016 public holiday.
CA-00005113-003 I find that the complaint made pursuant to the Organisation of Working Time Act is well-founded and I award redress of €250.
CA-00005113-004 I find that this complaint made pursuant to the Organisation of Working Time Act is not well-founded as it is an overlapping claim and addressed in CA-00005113-003.
CA-00005113-005 I find that this complaint made pursuant to the Organisation of Working Time Act is not well-founded as it an overlapping claim with CA-00005113-008.
CA-00005113-006 I find that this complaint made pursuant to the Organisation of Working Time Act is well-founded and I award redress to the complainant of €750.
CA-00005113-007 I find that this complaint made pursuant to the Organisation of Working Time Act is well-founded and I award redress to the complainant of €500.
CA-00005113-008 I find that this complaint made pursuant to the Organisation of Working Time Act is well-founded and I award redress to the complainant of €500.
CA-00005113-009 I find that the complaint made pursuant to the Employment Equality Acts is not well-founded as the complainant has not made out a prima facie case of discrimination.
CA-00005113-010 I find that the complaint made pursuant to the Payment of Wages Act is not well-founded.
CA-00005113-011 For the reasons outlined above, I make no recommendation in relation to the dispute referred by the complainant pursuant to the Industrial Relations Act. |
Dated: 26 October 2017
Key Words:
Organisation of Working Time Act Regulation 3 of the Organisation of Working Time (Determination of Pay For Holidays) Regulations, 1997 Terms of Employment (Information) Act Payment of Wages Act / rostered hours Employment Equality Act / less favourable treatment |