Complainant

Respondent

Anonymised Parties

A Caretaker

A Property 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-00008551-001

02/12/2016

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

CA-00008551-003

02/12/2016

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

CA-00008551-004

02/12/2016

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

CA-00008551-005

02/12/2016

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

CA-00008551-006

02/12/2016

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

CA-00008551-007

02/12/2016

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

CA-00008551-008

02/12/2016

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

CA-00008551-009

02/12/2016

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

CA-00008551-010

02/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011383-001

29/03/2017

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.

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 there was a change 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.

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.

While this letter referred to an earlier disciplinary meeting, there had been no such meeting, nor any disciplinary hearing or process.

He says he was unfairly dismissed. (CA-00008551-009.)

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. CA-00008551-001

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 CA-00008551-003 and CA-00008551-004.

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; CA-00008551-005, 006, 007 and 008.

The first of these; (005) is that the complainant did not get the breaks to which he was entitled.

The second (006) is that the working week exceeded the maximum permitted by law.

The third (007) is that he did not receive the annual leave to which he was entitled and final that he did not receive his public holiday entitlement (008).

Finally, complaint CA-00008567-010 relates to a complaint 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 and no explanation was received for the failure to do so.

There are ten complaints in total.

One is for unfair dismissal.

One relates to a failure to provide the complainant with ‘reasonable accommodation’ in respect of his disability.

Three relate to the complainant’s pay, including one under the National Minimum Wage Act.

Four arise under the Organisation of Working Time Act, 1997 related to various aspects of the complainant’s working hours and entitlements to time off.

Finally, he complains that he did not receive the statutory statement required by the Terms of Employment (Information) Act 1994.

I will address them in the order set out above, which may also be said to reflect the degree of gravity of the respective complaints.

The evidence in relation to the unfair dismissal is stark.

Normally, an Adjudicator will examine whether there was cause to initiate disciplinary action, then whether the process was conducted to a good standard of fairness, for which the criteria are well established and generally understood.

Finally, the sanction will be examined to see whether it lay within the range of reasonable and appropriate sanctions in all the circumstances.

The burden of defending the complaint falls on the employer, who did not attend the hearing.

However, even apart from that critical element in respect of the burden of proof, the facts outlined by the complainant, who was a credible witness, illustrate the chasm between any of the requirements falling on an employer and what happened in this case.

There was an issue relating to the provision of a key by the complainant to an ‘unauthorised person’.

However, according to the complainant, there was no process of any kind, indeed his evidence was that a process was retrospectively represented as having happened for the purpose of providing some sort of cover for the dismissal.

This complaint succeeds. The invented disciplinary meeting, the reference to his having disciplinary procedures which he never got, the total absence of procedures and the finding of gross misconduct all place this dismissal at the extreme end of the spectrum of unfairness and this is reflected in my award.

It is not relevant to a decision under this legislation but the complainant was also made homeless as a result of the actions of the respondent.

Regarding accommodation of the complainant’s disability CA-00011383-001, while some of the detail about what precisely resulted from the change to the complainant terms of employment in October 2015 it is clear that a change did take place.

However, some aspects of it are clear.

At the very least, it is likely that the complainant could not have undertaken the enhanced responsibilities within the twenty hours for which he was initially employed, or at least there is no evidence that any attempt was made to take account of his initial contracted hours.

It seems the rules for service users in the facility were changed and that he was required to be available for an extended period.

Also, the complainant gave evidence that he made the respondent aware of the limitations of his working on being awarded disability allowance in September 2015, and on may other occasions.

I conclude therefore that the respondent was fully aware of the complainant ‘s disability and the limitations on his hours, and that, in implementing the change he did so specifically disregarding the complainant’s needs. The working arrangements up to that point were a form of reasonable accommodation, which the respondent brought to an end.

The Employment Equality Act 1998 includes in the definition of ‘appropriate measures’ in relation to a person with a disability ‘patterns of working time, distribution of tasks’ which are relevant to the current complaint. (Section 16 (4)).

It is hard not to conclude that the respondent was knowingly indifferent to the complainant’s disability, and as a consequence of the changes made in September 2015 effectively removed the reasonable accommodation which had existed up to that point.

In view of the multiplicity of claims related to pay and working hours I will follow the sequence as I have set it out in the complainant’s submission.

I am mindful of the time limits which apply in relation to retrospective application of awards in respect of successful complaints.

The first of the pay complaints relate to underpayment of the national minimum wage. CA-00008551-001

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

I do not accept the figure given by the complainant for his total working hours (and this will impact also on his complaint in relation to breaks, below).

In the nature of an inquisitorial process it was necessary to go beyond the complainant’s simple assertion of his hours based on his starting and finishing times.

Those times are accepted, but it is what happened in between that defines his working hours.

The complainant’s duties consisted of opening the door to arrivals, observation of CCTV, cleaning (two hours per day), records administration (one hour per day) refuse disposal (a couple of hours per week).

Consider that the facility had only nine rooms and twenty residents it is hard to see over one hundred hours’ work being required every week and the complainant did not provide persuasive, or indeed any evidence of actually working such hours.

Such evidence as was presented was to the effect that the complainant was required to ‘open the door from 07.00 to 23.00, seven days a week’.

Given the likely frequency of this requirement based on the occupancy of the facility this claim lacks credibility. It undoubtedly limited the complainant’s movement (although he could employ someone to replace him at his own expense) but the evidence was insufficient to support the complaint as set out.

Admittedly, as he was paid €15.00 per hour his hours would only have to increase to approximately thirty-two (a third) to bring him below the limits set by the National Minimum Wage but whether this happened was not convincingly adduced in evidence.

Two complaints arise under the Payment of Wages Act CA-00008551-003 and CA-00008551-004.

The first of these relates to non-payment for working on Sundays. Secondly, his weekly wage remained unpaid on two occasions; on June 21st 2016 and July 19th 2016, a shortfall of €600.00.

The complaint was submitted to the WRC on December 2nd 2016 and so both complaints are within the time limits set in the Act.

The next complaints all arise under the Organisation of Working Time Act. CA-00008551-005, 006, 007 and 008.

The first (005) is that the complainant did not get the breaks to which he was entitled. For the reasons set out above regarding his total working hours it seems likely that the complainant was in a positon to avail of breaks and this complaint is not upheld.

The second (006) is that the working week exceeded the maximum permitted by law.

Again, for the reasons set out above there was insufficient evidence beyond the starting and finishing times on which safe conclusions could be based. On the basis of the complainant’s own direct evidence I could not establish a requirement for in excess of forty-eight hours’ work per week.

The third (007) is that he did not receive the annual leave to which he was entitled and finally that he did not receive his public holiday entitlement (008).

The same difficulty does not arise with annual or public holiday leave as with working hours where, on account of the volume involves records and more detailed information are required and I uphold these complaints.

Finally, CA-00008551-010 is a complaint that he was not provided with the statutory statement under the Terms of Employment (Information) Act, 1994.

I also uphold this complaint.

The view that the time within which a complaint may be made is reckonable only from the first day after the two month period within which the obligation falls on an employer to provide the statement is excessively restrictive.

An employer is required to give the employee the statutory statement within two months of the commencement of employment and the failure to do so constitutes the breach of the Act.

The question that arises is whether an employer who fails to provide the statutory statement under the Act is only in breach of the Act only on that one day, following the expiration of the two-month period.

The question therefore is whether section 41(6) of the Workplace Relations Act has restricted the limitation period for breaches of section 3 of the Terms of Employment (Information) Act. 

A persuasive analysis and exposition of the legal principles has been set out in ADJ 9820 by the Adjudicator in that case, Kevin Bainham B.L. I endorse his reasoning and conclusions in that case and apply and follow them here. They are as follows.

Section 41(6) of the Workplace Relations Act provides:

 “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 3(1) of the Terms of Employment (Information) Act provides 

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”.

In this case, the respondent has accepted that a statement was not provided to the complainant.

The essence of the respondent’s submission is that a contravention of section 3(1) occurs when the two-month period expires and no statement is provided, and only on that day.

This would mean that the contravention is the first day after the initial two-month period of employment, where no statement is provided.

The argument appears to also submit that there is no subsisting contravention on the second day after the end of the two-month period or on later days. The respondent argument in this, and similar cases is that the complaint must be referred to the Workplace Relations Commission within six months of this single day of contravention.

Section 3(5) of the Terms of Employment (Information) Act provides for the following continuing obligation:

 “A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.”

Section 7 of the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, reads:

“(1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4, 5 or 6, if the employer concerned has —

(a) complied with a direction under section 6A given in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015, or

(b) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired. 

(2) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer, 

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act.

Section 7 covers contraventions of sections 3, 4, 5 and 6 that occur during the employment relationship.

Subsection 1 addresses situations where a WRC inspector or adjudicator have given directions regarding compliance with the Act, to which the employer has subsequently complied with. Subsection 2(b) allows an adjudication officer to confirm particulars of a statement, or to alter or add to the statement.

Subsection 2(c) allows the adjudicator to require an employer to provide the employee with a statement. Taking the narrow interpretation, that the breach only occurs on one day, that after the expiry of two months from the commencement of employment, this multiplicity of interventions in respect of a breach of section 3 could only be exercised in the limitation period following the single day of contravention at the end of the initial two-month period of employment.

The Terms of Employment (Information) Act transposes Directive 91/533/EC, the ‘Written Statement’ Directive.

It recites Article 117 of the Treaty and point 9 of the Community Charter of Fundamental Social Rights of Workers.

Article 2 provides that an employer shall notify the employee of certain essential aspects of the employment relationship.

Article 3 provides for the means of information and that the information stated in Article 2 may be given to the employee in certain forms, for example a written contract or letter of engagement. Article 3 refers to this information being provided not later than two months from the commencement of employment.

Article 8 requires member states to introduce measures to allow employees to pursue claims via a judicial process.

In Kampelmann and Others v Landschaftsverband Westfalen-Lippe(C-253/96 to C-256/96), the Court of Justice of the European Union held that Article 2 is directly effective as against the State and against bodies and authorities under the control of the State.

If the respondent is correct, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, has curtailed the obligations provided in Article 2 of the Directive to a contravention arising on the first day after the end of the two-month period.

In Seclusion Properties Ltd v O’Donovan (DWT14114), the Labour Court held as follows:

“It is clear that the obligation on domestic courts and tribunals to interpret national law in conformity with a Directive applies ‘as far as possible’. That is to say, it cannot serve as a basis for an interpretation of national law contra legem. As was pointed out by the CJEU in Dominguez v Centre Informatique du Centre Ouest Atlantique, a conforming interpretation can only be arrived at by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the Directive in question is fully effective and that an outcome consistent with the objective pursued by the Directive is achieved.”

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship.

Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress.

The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. If the respondent’s submission was correct, the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment.

If the respondent’s submission is correct, section 7(1) is superfluous.

This provision prevents an adjudication officer from hearing a complaint where the employer has complied with a previous direction or determination. This section would not be necessary if there could only be one contravention of section 3 arising on a single day. Instead, section 7(1) presents the contravention as a subsisting breach and prevents an employee from submitting a fresh complaint where the employer has complied with the outcome of a previous complaint.

While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law.

First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period.

Applying a conforming interpretation to section 3 does not, therefore, require an impermissible contra legem interpretation of the section.

Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship.

Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.

For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement.

The contravention of section 3 is a subsisting contravention.

If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.

In making my awards below note should be taken that the complaint was made on December 12th 2016. Therefore, the cognisable period for certain complaints will be from July 13th 2016. The complainant’s employment terminated on September 30th 2016.

In calculating a daily rate I have used his original hourly rate of €15 as this was his contracted rate based on a seven hour day; €105.

Thus, using the reference period (July 13th 2016. to September 30th 2016 I calculate loss of Sundays as seven, annual leave from January to September 30th as fifteen days, and public holidays as six.

I uphold complaint CA-00011383-001 under the Employment Equality Act, 1998 and award the complainant €5,000.00. This is an award for compensation for breach of the complainant’s rights and is not subject to statutory or other deductions.

The following awards are made subject to the usual statutory deductions.

I do not uphold CA-00008551-001 under the National Minimum Wage Act, 2000.

In respect of the complaints under the Payment of Wages Act, CA-00008551-003 I award €735 and in respect of CA-00008555-004, €600.00.

In respect of the complaints under the Organisation of Working Time I Act do not uphold CA-00008551-005 or CA-00008551-006.

I uphold CA-00008551-007 and award €1575.00 and CA-00008551-008 and award €630.

I uphold CA-00008551-009 under the Unfair Dismissals Act, 1977 and award the complainant €31,000.00

In respect of CA 00008567-009 I award the complainant €900.00 under the Terms of Employment (Information) Act, 1994.