ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014194
Parties:
| Complainant | Respondent |
Anonymised Parties | Opportunity liaison Manager | A Start Up Company |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00018532-001 | 16/04/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00018532-003 | 16/04/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00018532-004 | 16/04/2018 |
Date of Adjudication Hearing: 18/07/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 6 of the Payment of Wages Act, 1991, Section 27 of the Organisation of Working Time Act, 1997 and Section 7 of the Terms of Employment (Information) Act, 1994,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:
This claim has arisen from a short period of employment at a Start-up company. The Respondent did not attend the hearing. The Complainant represented herself as a lay litigant with the benefit of Polish interpretation. The Respondent gave no reason for non-attendance. In the run up to the hearing, the respondent engaged in email correspondence with the WRC, but did not follow through with an attendance at hearing. |
Summary of Complainant’s Case:
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00018532-001 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00018532-003 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00018532-004 |
The Complainant is a Polish National who applied for a job as Opportunity Liaison Manager in a Start Up Company (outsource management) via e-mail on 25 October 2017.She was successful, travelled to Ireland and undertook training during the following week. She understood that she was to receive a 50% subsidy towards flights plus travelling expenses in addition to a contract of employment.
The Complainant then returned to Poland and worked from her home and undertook liaison work until her return to Ireland on permanent relocation on 31 December,2017. During this period, she received an incorrect contract of employment and eventually submitted a corrected version herself.
The Complainant submitted that she had experienced a very traumatic period of employment from 1 November2017 to when her employment was terminated by the Respondent on 11 April 2018.
CA-00018532-001 Payment of Wages Claim
The Complainant submitted that she received some wages during her employment from November 1, 2017 and April 11,2018. She had agreed to 28,500 euro per annum for 2017 and 30,000 per annum for 2018.
She suffered a significant shortfall in wages and was compelled to live on her credit card. She experienced severe financial hardship as a result on the failure of the respondent to pay her as agreed. She made several attempts to seek payment and while payment was promised and undertakings given by the CEO, it was never actioned. She recorded her weekly hours worked on a computer system held by the respondent.
The Complainant submitted a copy of a P45 dated 31 March 2018 which reflected 13 weeks of insurable employment and payment of 8345.25 euro. She confirmed that she had not received this amount and was instead paid:
January 31,2018: 2,625-euro gross: 2,204.72-euro nett received to bank account on Feb 2,2018.
March 6, 2018: 1,102.36-euro nett
In addition, the Complainant sought payment for unpaid overtime where she had worked at Showcasing products at Marketing venues. She was given an assurance by the respondent that she could secure time in lieu for this. This did not transpire.
The Complainant outlined that she had not received payment for annual leave. She confirmed that
She also sought payment in lieu of notice of one week.
CA-00018532-003 Sunday Premia.
The Complainant submitted that she worked 20 hours over two Sundays without receiving a premium rate. There was no provision for Sunday working in her contract of employment, which stated Monday to Friday. The Sunday working covered marketing events.
CA -00018532-004 Statement of Terms of Employment
The Complainant submitted that she did not receive any statement of terms of employment on commencement of employment. Three statements in the name of another worker were passed to her during the first two months of employment. She eventually took the matter into her own hands and compiled her own statement which was then sanctioned by the respondent and signed by them dated January 3, 2018, outside the 8-week statutory period. The Complainant linked this omission as adding to the huge uncertainty which accompanied her period of employment and sought compensation as redress.
Summary of Respondent’s Case:
CA-00018532-001 Payment of Wages Claim. No appearance and no defence.
CA-00018532-003 Sunday Premia. No appearance and no defence.
CA -00018532-004 Statement of Terms of Employment. No appearance and no defence.
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Findings and Conclusions:
I have considered the complainants submissions and evidence adduced. I did not have the benefit of hearing from the Respondent. My initial response to the events as described is that of a chaotic working relationship without any foundation / termination documents and augmented by promises to pay wages that were never realised in full. I found the circumstances of the case to be a long way short of best practice in employment terms and exploitative. I would have expected a Start Up company to be governed by a far more responsible employer approach. The Complainant was not the sole employee.
CA-00018532-001 Payment of Wages Claim I have considered this claim very carefully. I sought additional documents from the complainant in support of her claim. I received a redacted copy of her bank statement which recorded two partial payments of wages. I found the failure to pay wages in real time or at all as a significant breach of Section 5 of the Act. I accept that partial and random payments were made, but these was at significant variance from the terms included in the contract of employment. Based on the uncontroverted evidence of the complainant, I find the claim to be well founded.
CA-00018532-003 Sunday Premia. I have carefully considered this claim. Section 14 of the Organisation of Working Time Act ,1997 requires employers to treat Sunday working in one of many wages, either through an additional allowance, an increased rate of pay, time off or a combination of these. In the instant case, the complainant did not secure any of the options for either of the Sundays worked. I am satisfied that her pay did not take account of the determination of Sunday working and the respondent does not appear to have operated a collective agreement. Based on the uncontroverted evidence of the complainant, I find the claim to be well founded.
CA -00018532-004 Statement of Terms of Employment I have considered this claim. I found the three copies of employment contracts issued in the early months of employment to be confusing as they omitted the complainants name. Section 3 of the Act provides for: Written statement of terms of employment.
3.— (1) 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 of the terms of the employee’s employment, that is to say— (a) the full names of the employer and the employee, The documents offered at hearing did not comply with Section 3 of the Act. The Complainant did submit a document jointly signed on January 3,2018 by the Respondent and the complainant which appeared to comply with the Act, but this was outside the 2-month statutory time limit. I find the complaint to be well founded. |
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. CA-00018532-001 Payment of Wages Claim Section 6 of the Payment of Wages Act, 1991, requires that I decide in relation to the complaint in accordance with Section 5 of that Act. I order the respondent to pay to the complainant the following sums in compensation for the blatant breach of Section 5 of the Act. Payment of unpaid wages of 9,323 euro less statutory deductions. Payment for Annual Leave 138.28 euro Payment in Lieu of notice: 576.81 euro Total :10, 038.09 euro. I cannot find in favour of payment for overtime as it is expressly excluded in the contract of employment signed by both parties on January 3,2018. I remain concerned as the disparity between the P45 pro offered by the complainant to the hearing which indicated a gross pay of 8545.25 and 13 weeks of insurable employment and the bank statements of wages received
CA-00018532-003 Sunday Premia. Section 27 of the Organisation of Working Time Act, 1997 requires that I decide in relation to the complaint in accordance with the provisions of the Act. In accordance with Section 27 of the Act, I order the respondent to pay the complainant an additional allowance of 50% for Sunday working in accordance with Section 14 of the Act. I calculate this to be 443.70 euro in respect of 20 hours worked. I also order the Respondent to pay the complainant 200 euro in compensation for this breach.
CA -00018532-004 Statement of Terms of Employment Section 7 of the Terms of Employment (Information) Act, 1994 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act. I have found the complaint to be well founded. I order the respondent to pay the complainant the value of 4 weeks’ pay in compensation for the continues breach of Section 3 of the Act. |
Dated: 7.8.18
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words: Non- Payment of wages, annual leave and absence of a statement of terms of employment.