Complainant

Respondent

Anonymised Parties

A Caretaker

A Management Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00009169-001

19/01/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008567-002

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008567-003

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008567-004

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008567-005

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008567-006

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008567-007

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008567-008

05/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00008567-009

05/12/2016

The complainant was a ‘live-in’ Caretaker who managed and acted as keyholder in a residential facility for homeless people which accommodated twenty people in nine units.

He was initially employed on August 10th, 2015 on a weekly wage of €300.00 and his employment terminated on September 30th 2016.

There is a preliminary matter as to the identity of the correct respondent in this case.

Two other complaints were lodged and were listed as ADJ 6318 and 6321.

The complaints are almost identical.

ADJ 6321 was withdrawn at the hearing.

The complainant was initially employed to work twenty hours per week. He suffers from a disability and continuing health difficulties. One of his complaints concerns the respondent’s failure to provide reasonable accommodation for his disability.

However, in October 2015 this changed and his hours were increased to one hundred and nineteen hours per week. This had a number of effects; it brought his wages, which did not increase, below the national minimum wage and put his hours outside the maximum permitted by law.

He was denied breaks during that period and he was effectively on duty from 6am until 11 pm.

He was responsible for attending to the front door, cleaning, monitoring the CCTV and record keeping. He received a letter on September 2nd 2016 terminating his employment. He says he was unfairly dismissed. (CA-00008567-008.)

The respondent was well aware of his disability. The complainant was in receipt of disability allowance which was subject to a maximum working week of twenty hours. In addition, the nature of his work, requiring long periods monitoring CCTV and moving heavy bins exacerbated his osteoarthritis.

The complainant gave direct evidence that both these situations were brought to the respondent’s attention on numerous occasions. He specifically asked that the hours be reduced.

The first of the pay complaints relate to underpayment of the national minimum wage.

This arises as a direct consequence of the increase in his working hours from twenty to one hundred and nineteen. Therefore, there was a breach of the Act between October 2015 and September 2016 and the complainant counts his total loss at €36,128.40.

Two complaints arise under the Payment of Wages Act. The first of these relates to non-payment for working on a Sunday. Secondly, his weekly wage remained unpaid on two occasions; a shortfall of €600.00

The next complaints all arise under the Organisation of Working Time Act; and relate to complainant not getting the breaks to which he was entitled, that the working week exceeded the maximum permitted by law, that he did not receive the annual leave to which he was entitled and finally that he did not receive his public holiday entitlement.

Finally, he says that he was not provided with the statutory statement under the Terms of Employment (Information) Act, 1994.

The complainant signed a purported ‘settlement agreement’ but as he was not given the benefit of legal advice it has no standing.

The respondent did not attend the hearing. No explanation was received for the failure to do so.

A preliminary matter arises in respect of the correct identity of the respondent.

As noted above three, virtually identical complaints were submitted against three different entities and all were listed together for hearing.

While it may be understandable in the case of doubt or confusion as to who is the correct respondent that a complainant will wish to cover all options by naming several respondents, it gives rise to obvious difficulty.

In the first place it is primarily, (one might say exclusively) a matter for the complainant to identify who is the correct respondent or legal entity against whom, or which it wishes to proceed.

Clearly, an Adjudicator cannot issue identical findings against two or more respondents in respect of the same complaints, or a complainant might then pursue all of them for a remedy. It should be equally clear to a party approaching a hearing that an Adjudicator has limited options in the course of a hearing to identify the correct respondent; again the responsibility for this falls on the complainant as part of their preparation for a hearing.

If the complainant is not clear about who the respondent is, it is rather ambitious to expect that the Adjudicator will be; not helped in this case by the fact that the respondent did not attend.

In the event, I am satisfied that the correct respondent is the one identified in ADJ 6318. The evidence before the hearing was that the respondent in that case was the employer since January 1st 2016 and therefore covers the period in which the complaints arise.

As will be seen above all the complaints were submitted to the WRC in December 2016 or January 2017.

The name of the respondent in this complaint apparently remained on the payslips but that seems to me an insufficient basis for concluding that it remained the employer.

Accordingly, I find that the correct respondent has been identified in ADJ 6318 and therefore I dismiss this complaint.

For the reasons set out above I find that the respondent named in this case is not the correct respondent and the complaints are dismissed.

Respondent incorrectly identified.