ADJUDICATION OFFICER DECISIONS & RECOMMENDATION
Adjudication Reference: ADJ-00008111
Parties:
| Complainant | Respondent |
Anonymised Parties | A security guard | A provider of security services |
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-00010769-001 | 10/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00010769-002 | 10/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00010769-003 | 10/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00010769-005 | 10/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00010769-006 | 10/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00010769-007 | 10/04/2017 |
Date of Adjudication Hearing: 09/08/2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 10th April 2017, the complainant referred six complaints and one dispute to the Workplace Relations Commission pursuant to the Terms of Employment (Information) Act, the Industrial Relations Act, the Payment of Wages Act and the Organisation of Working Time Act. The complaints and dispute were scheduled for adjudication on the 9th August 2017.
At the time the adjudication was scheduled to commence, it became apparent that there was no appearance by or on behalf of the respondent. I established that the respondent was on notice of the time, date and venue of the adjudication and I waited some time for a late arrival. Having taken these steps, I proceeded with the adjudication in the absence of the respondent.
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969following the referral of the complaints and dispute to me by the Director General, 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 a security guard and was transferred to the employment of the respondent in October 2011. He is paid €10.75 per hour and is contracted to work 78 hours per fortnight. His contractual weekly wage is €419.25. |
Summary of Complainant’s Case:
The complainant has been employed in the security industry since 2006 and his employment was transferred to the respondent in October 2011. He has a full-time contract of 78 hours per fortnight. He is paid at the rate of €10.75 per hour. At the outset of the adjudication, the complainant outlined that there had been no reply from the respondent to his complaints and nor had there been a response to his data access request submitted in January 2017. The complainant outlined that he had always worked 78 hours per fortnight but his hours had been reduced to zero. He was not supplied with a P45 and could not apply for jobseeker’s allowance. The complainant outlined that he considered that he remained an employee of the respondent.
The complainant outlined that he had not refused to work on the 21st October 2016. On this date, he had been contacted by the respondent to say that his shift had been cancelled. He had been rostered to work a shift that day. He explained that the last day he had been supplied with work by the respondent was on the 28th October 2016.
In respect of the first complaint made pursuant to the Terms of Employment (Information) Act, the complainant outlined that he had not received a statement of the terms of his employment following a transfer of undertaking while working at a named facility. In respect of his second complaint pursuant to the Terms of Employment (Information) Act, he outlined that he had not been informed of a change in his terms of employment when his hours had been reduced from 78 hours per fortnight to zero hours. His last duty was on the 27th October 2016 and his remaining hours were cancelled.
In respect of his industrial relations dispute, the complainant outlined that after his emails to a manager of the 29th September 2016 and the 10th October 2016 regarding overdue annual leave, he was removed from the roster at a named site and received no more hours.
The complainant stated that the first Payment of Wages complaint related to an amount of €688 owed to him. This arose for the period of the 10th October to the 23rd October 2016 when he had worked 14 hours instead of his contracted 78 hours per fortnight. He said that the respondent called and cancelled shifts at short notice. In the second Payment of Wages complaint, the complainant asserts that he is owed €451.50 for the period of the 24th October 2016 to the 6th November 2016.
In respect of the claim in respect of annual leave, the complainant applied for annual leave and asked the respondent for a statement of the number of hours he was owed. He had taken 10 days’ annual leave in the year, but had also been owed hours for 2015. On the 16th September 2016, the complainant was informed that he was owed 16 days of annual leave. This amounts to €1,376. The complainant exhibits email correspondence to the respondent of the 27th September and 10th October 2016 regarding his annual leave entitlement. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication and did not make submissions in reply to the complaints. It did not object to the dispute being heard at this adjudication. |
Findings and Conclusions:
The complainant presented his case and referred to emails, pay slips and other supporting documentation. I make the following findings and conclusions in respect of the five complaints and one dispute.
CA-00010769-001 Terms of Employment (Information) Act I find that the complaint is well founded. The complainant’s evidence was that he did not receive a statement in compliance with the Terms of Employment (Information) Act. No evidence was offered to rebut this. I award the complainant redress of €1,677.
CA-00010769-002 Terms of Employment (Information) Act I find that the complaint is well founded. The complainant’s evidence was that he did not receive a statement regarding amended terms of employment, in compliance with the Terms of Employment (Information) Act. No evidence was offered to rebut this. I award the complainant redress of €1,677.
CA-00010769-003 Industrial Relations Act dispute I find that the complainant has been treated unfairly in respect of his employment and I recommend redress of €1,000.
CA-00010769-005 Payment of Wages Act I find that the complaint made pursuant to the Payment of Wages Act for wages due between the 10th October and 23rd October 2016 is well founded. The respondent shall pay to the complainant the amount of €688.
CA-00010769-006 Payment of Wages Act I find that the complaint made pursuant to the Payment of Wages Act for wages due between the 24th October and 6th November 2016 is well founded. The respondent shall pay to the complainant the amount of €451.50.
CA-00010769-007 Organisation of Working Time Act I find that the complainant is entitled to the 16 days’ annual leave. I note that the respondent has not denied this entitlement in reply to the complainant’s emails. Pursuant to section 27(3)(c) of the Organisation of Working Time Act, I award the redress that is just and equitable in the circumstances. I note that the complainant sought to avail of his annual leave entitlement and communicated this to the respondent. I note the role of annual leave in providing for the health and safety of employees. I note that shortly after seeking to avail of annual leave, the respondent ceased providing the complainant with work and he did not receive annual leave.
The complainant is entitled to compensation for the 16 days of annual leave due to him (this leave year having come to an end). I award €1,376 as compensation. Given the circumstances, I also award redress in the amount of €4,000, which is just and equitable for the breach of the statutory right to annual leave. The award of redress of €4,000 does not relate to remuneration or arrears of remuneration.
Pursuant to section 27(3)(b) of the Organisation of Working Time Act, the respondent is required to comply with sections 19 and 20 of the Act. This is a forward-looking requirement. |
Decisions & Recommendation:
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 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00010769-001 I find that the complaint made pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay redress to the complainant of €1,677.
CA-00010769-002 I find that the complaint made pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay redress to the complainant of €1,677.
CA-00010769-003 I find that the dispute pursuant to the Industrial Relations Act is well founded and I recommend that the respondent pay the complainant €1,000.
CA-00010769-005 I find that the complaint made pursuant to the Payment of Wages Act is well founded and the respondent shall pay redress to the complainant of €688
CA-00010769-006 I find that the complaint made pursuant to the Payment of Wages Act is well founded and the respondent shall pay redress to the complainant of €451.50
CA-00010769-007 I find that the complaint made pursuant to the Organisation of Working Time Act is well founded and pursuant to section 27(3)(c) of the Act, the respondent shall pay compensation to the complainant of €1,376, which amounts to remuneration. The respondent shall also pay redress in the amount of €4,000, which is just and equitable for the breach of the statutory right to annual leave. The award of redress of €4,000 does not relate to remuneration or arrears of remuneration.
Pursuant to section 27(3)(b) of the Organisation of Working Time Act, I determine that the respondent is required to comply with sections 19 and 20 of the Act. |
Dated: 4th April 2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Terms of Employment (Information) Act Payment of Wages Act Industrial Relations Act Organisation of Working Time Act Compensation / redress section 27(3)(c) of the Organisation of Working Time Act Compliance section 27(3)(b) of the Organisation of Working Time Act |