ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015265
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00019873-001 | 20/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019873-002 | 20/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019873-003 | 20/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00019873-004 | 20/06/2018 |
Date of Adjudication Hearing: 30/11/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to be provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment (as specified in Section 3 of the 1994 Act).
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
The Complaint herein relates to purported contraventions of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements and a contravention of Section 21 which set out the entitlements in respect of Public Holidays.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- Declare the complaint was or was not well founded;
- Require the Employer to comply with the relevant provision;
- Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.
Lastly, the Complainant herein has referred a complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Background:
The Complainant is a Barber and worked with the Respondent Barber shop in Co. Kildare. The Complainant tendered her resignation in April of 2018, and brings the within claims concerning her entitlements to Public Holidays. Annual Holidays and Overtime. |
Summary of Complainant’s Case:
The Complainant had prepared submissions and was herself present to answer a few questions over and above what was submitted on her behalf by her representative. |
Summary of Respondent’s Case:
The Respondent Barber shop was represented by one of it’s Directors. He produced a copy of the Contract of Employment and resisted all the claims presented. |
Findings and Conclusions:
I have carefully considered the evidence adduced by both sides. The Complainant worked for a year and a half with the Respondent Barber shop. The Complainant worked a three day week and was paid a gross salary of €284.00 per week of work. The Complainant gave evidence that she understood that she was to work an 8 hour day but very often this would push out to a 9 hour day as clients came into the shop just before closing time and would be provided with the service. The Complainant this should be paid for as Overtime at a rate of time and a half. The Respondent denied this happened regularly and his staff would be out the door by 6.15 pm. The Complainant says she was not paid for all her Public Holiday entitlements and was in particular only partially paid in respect of St Patrick’s Day and was not paid her leave in lieu having only had three weeks holidays in 2017. The Complainant is adamant that she was never given a Contract of Employment during her time in the workplace. She says that the Contract which I have had sight of was only given to the Complainant after she had handed in her resignation and issued the within claims. |
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-00019873-001 -Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991- I find the Complaint made in respect of Over time to be well founded and award the sum of €360.00 CA-00019873-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 - - I find the Complaint made in respect of Public Holidays to be well founded and award the sum of €200.00
CA-00019873-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 -- I find the Complaint made in respect of Annual Leave to be well founded and award the sum of €285.00
CA-00019873-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 - - I find the Complaint made in respect of no provisions of a Statement of Terms to be well founded and award the sum of €250.00
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Dated: 12/12/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath