ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00010456

Parties:

Complaints:

Date of Adjudication Hearing: 8th November 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015, Section 11 of the Minimum Notice and Terms of Employment Act 1973, Section 6 of the Payment of Wages Act 1991, Section 27 of the Organisation of Working Time Act 1997 and 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 submitting the following complaints under the 3 Acts:

1. That the Respondent had terminated her employment without affording her her rights and entitlements in accordance with the provisions of the Minimum Notice and Terms of Employment Act 1973.
2.  
3. That the Respondent had failed to pay her wages ‘properly payable’ to her in breach of her rights and entitlements under the provisions of the Payment of Wages Act 1991.
4.  
5. That the Respondent had not afforded her her annual leave entitlements in accordance with the provisions of the Organisation of Working Time Act 1997.

The Complainant was employed by the Respondent from 15th April 2013 to 26th October 2016 and her weekly rate of pay €753.97c.

The complaints were presented to the WRC on 29th August 2017.

Preliminary Issue.                                                                                                                                                A preliminary issue arose in relation to time limits for the presentation of complaints.

The Complainant’s employment with the Respondent was terminated 26th October 2016 and her complaints were presented to the WRC on 29th August 2017.   This is outside the normal 6 months’ period for the presentation of complaints as laid down in Section 41(6) of the Workplace Relations Act 2015.   However, the Complainant submitted that, in accordance with Section 41(8) of the Workplace Relations Act 2015, the delay in her presenting her complaints was due to reasonable cause that justified extending the normal 6 months’ period for the presentation of complaints by a further 6 months.

The Complainant said that she and her colleagues were trying to resolve matters with the Respondent.   She said that she made contact with the Respondent who assured her she would receive all pay/remuneration due to her, she said that as she believed her Employer and had no reason not to, she delayed submitting her complaints to the WRC.   The Complainant said that this constituted reasonable cause that justified granting an extension of the normal 6 month limit by a further 6 months in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015 and she sought such a decision.

Summary of Complainant’s Case:

The Complainant said that the Respondent was in breach of her rights and entitlements under the three Acts and she made the following submissions in that regard.

Minimum Notice and Terms of Employment Act 1973:                                                                                   The Complainant said that her employment was terminated by the Respondent without any notice or pay-in-lieu of notice.   The Complainant said that based on her service of 4 years and 6 months she was entitled to 2 weeks’ notice in the sum of €1,507.94c and she sought a decision to that effect.

Payment of Wages Act 1991:                                                                                                                                The Complainant submitted the following in relation to her complaints under the 1991 Act.   The Complainant said that she was paid weekly in arrears (i.e. lying or back week basis).   The Complainant said that she was not paid for her last two weeks worked for the Respondent and she said that she was due the sum of €1,507.94c in that respect and she sought a decision to that effect.

Organisation of Working Time Act:                                                                                                                     The Complainant said that she had not been paid for her accrued, untaken annual leave at the time of the termination of her employment by the Respondent.   The Complainant said that she was due 7 months’ annual leave at the time of the termination of her employment.

The Complainant sought a favourable decision and she sought redress in the form of compensation as provided for in Section 27 of the 1997 Act.

Summary of Respondent’s Case:

The Respondent was not present or represented at the Hearing and they sent no submissions.

Findings and Decisions:

Section 41 of the Workplace Relations Act 2015 requires that I make decisions in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 11 of the Minimum Notice and Terms of Employment Act 1973 requires that I make a decision in relation to the complaint in accordance with the provisions of the Section 12 of the 1973 Act.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the provisions of the same Section of the 1991 Act.

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 provisions of the same Section of the 1997 Act.

The Respondent was not present or represented at the Hearing and they sent no submissions accordingly I only have the evidence and submissions of the Complainant to rely upon in these matters.

Preliminary Issue.                                                                                                                                 . I am satisfied that the Complaint was trying to resolve the issues that are the subject of the complaints in the instant case with the Respondent and I am satisfied that that this constitutes reasonable cause in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015 that caused the failure to present the complaints at an earlier date and that justifies extending the normal 6 month period under consideration for the purpose of the complaints by a further 6 months to 29th August 2016.

Substantitive Issues:                                                                                                       . Basedon the uncontested evidenceof the Complainant I find and declare that all of the complaints under the 3 Acts are well found and each one is upheld.

Based on the above findings the following are my decisions in relation to the complaints under the three Acts.

Minimum Notice and Terms of Employment Act 1973: CA-000133-001:                                               .                                      Based on the uncontested evidence of the Complainant she did not receive her minimum notice or pay-in-lieu of notice upon the termination of her employment by the Respondent and accordingly I declare that the complaint under Section 11 the 1973 Act is well founded and itupheld.

Based on her continuous service of 4 years and 6 months the Complainant was entitled to two weeks’ notice in the sum of €1,507.94c and I require the Respondentto pay her that sum.

Payment of Wages Act 1991: CA-00013379-003:                                                                         .                                                                                                    Based on the uncontested evidence of the Complainant I declare that the complaints under Section 6 of the 1991 Act are well founded and they are upheld.   The Complainant is due the sum of €1,507.94c in respect of unpaid wage properly payable to her in accordance with the provisions of the 1991 Act and I require the Respondent to pay her that sum.

Organisation of Working Time Act 1997: CA-00013379-002:                                                                       .                                                                      Based on the uncontestedevidence of the Complainant I declare that the complaint in relation to annual leave in accordance with the provisions of Sections 19, 20 and 23 of the 1997 Act is well founded and it is upheld.   I note that in the relevant period under consideration for the purposes of the instant complaint the Complainant had accrued an entitlement to 11.67 days’ annual leave, which equates with the sum of €1,759.77c.

I note that Article 11 of the Council Directive 2002/15/EC upon which the legislation is based states: “Member states shall lay down a system of penalties for breaches of the national provisions adopted pursuant to this Directive and shall take all the measures necessary toensure that these penalties are applied.   The penalties thus provided shall be effective, proportional and dissuasive.”  I am fully taking this into account in the redress awarded below.

In accordance with the provisions of Section 27 of the 1997 Act I declare the complaint in relation to annual leave entitlements in accordance with Sections 19, 20 and 23 of the 1997 is well founded and it is upheld.   I require the Respondent to pay the Complainant compensation in the sum of €3,000.00c                                

Dated: 4th April 2018

Workplace Relations Commission Adjudication Officer: Seán Reilly.

Key Words: Minimum Notice, Annual Leave, Unpaid Wages.