ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016271
Parties:
| Complainant | Respondent |
Anonymised Parties | Night Porter | Hotel |
Complaints:
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-00021057-001 | 08/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00021057-002 | 08/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00021057-003 | 08/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00021057-004 | 08/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00021057-005 | 08/08/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00021057-006 | 08/08/2018 |
Date of Adjudication Hearing: 23/10/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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:
The Complainant was employed as a Night Porter from 17th June 2010 to 16th March 2018. He was paid €308.00 per week. He has claimed that he did not get a written contract of employment, was not notified in writing of the termination of his employment, he did not get a Sunday premium, Public Holiday compensation and holiday pay. He is seeking compensation. |
1)Terms of Employment (Information) Act CA 21057-001/005
Summary of Complainant’s Case:
The Complainant stated that he did not receive a written contract of employment. Also, he was not notified of the termination of his employment. He is seeking compensation. |
Summary of Respondent’s Case:
The Respondent did not attend and was not represented. |
Findings and Conclusions:
I note that the Respondent did not attend and was not represented at the hearing. I note the correspondence on file advising the Respondent of the venue, date and time of the hearing. Based on the uncontested evidence before this hearing I find as follows: Sec 3 CA 21057-001 I find that the Complainant was not given a written statement of his terms and conditions of employment. Sec 3 (1) of this Act states, “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. I find that the Respondent has breached Sec 3 of this Act. Sec 5 CA 21057-005 I find that the Complainant was not given a written statement of the termination of the employment. Sec 5 of this Act states, “the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than (a) 1 month after the change takes effect” I find that the Respondent has breached Sec 5 of this Act. I find that compensation is warranted. Sec 7 (2) (d) of the Act states,” compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”. |
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.
I have decided that the Respondent has breached Sec 3 and 5 of this Act.
I have decided that this complaint is well founded.
I require the Respondent to pay the Complainant compensation of €1,000 within six weeks of the date below.
2)Organisation of Working Time Act CA 21057-002/003/004
Summary of Complainant’s Case:
The Complainant sought an extension to the time limit. He stated that he did not get a contract of employment and so was denied the information regarding his rights and entitlements. He is a foreign national and this information would have been vital to him.
Sunday premium CA 21057-002He stated that he worked only 1 or 2 Sundays in the recent times. He did not receive any premium for working Sundays. He worked 11.00pm to 7.30am each night.Public Holidays CA 21057-003He stated that he received no extra payment for working Public Holidays. Holidays CA 21057- 004He stated that he did not receive any paid holidays in the years 2010 to 2015. He received 5 weeks paid holidays in 2017 to 2018. |
Summary of Respondent’s Case:
|
The Respondent did not attend and was not represented.
Findings and Conclusions:
Request to extend the time limit
I note that the Complainant did not receive a contract of employment which should have given him information on his rights and entitlements to a Sunday premium. Public holidays and holidays entitlements. He was deprived of that. I have decided to grant the extension. This complaint was presented to the Commission on 8th August 2018 therefore the period that may be investigated is 9th August 2017 to 16th March 2018, the date of termination of employment.
Complaints
I note that the Respondent did not attend and was not represented at the hearing.
I note the correspondence on file advising the Respondent of the venue, date and time of the hearing.
Based on the uncontested evidence before this hearing I find as follows:
Sunday premium CA 21057-002I find that the Complainant did not receive a premium for working Sundays. I find that the Respondent has breached Sec 14 of this Act Public Holidays CA 21057-003I find that the Complainant did not receive any compensation for working Public Holidays. I find that in the allowable period 9th August 2017 to 16th March 2018 there were 5 Public Holidays (October, Dec 25th,26, Jan 1st 17th March) Holidays CA 21057- 004I find that the holidays year in the allowable period is 1st April 2017 to 31st March 2018. I note that the employment was terminated on 16th March 2018. I note that the Complainant advised that he had received 5 weeks paid holidays in this period, therefore he received in excess of his entitlements for that period. The claim in respect of holidays in the period 2010 to 2015 is out of time and may not be adjudicated upon. |
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.
I have decided that the complaints are well founded in part only.
Sunday premium CA 21057-002
I have decided that the Respondent has breached Sec 14 and they should pay compensation of €300 within six weeks of the date below.
Public Holidays CA 21057-003
I have also decided that the Respondent has breached Sec 21 of this Act in respect of Public Holiday compensation.
I have decided that the Respondent should pay compensation of €300 within six weeks of the date below.
Holidays CA 21057- 004I have decided that this part of the complaint is not well founded and so it fails. |
3) Minimum Notice & Terms of Employment Act CA 21057-006
Summary of Complainant’s Case:
He stated that when his employment was terminated he was paid €330. He was owed €250 in wages therefore he only received €50 in notice. He was entitled to four weeks’ notice. |
Summary of Respondent’s Case:
The Respondent did not attend and was not represented at the hearing. |
Findings and Conclusions:
I note that the Respondent did not attend and was not represented at the hearing. I note the correspondence on file advising the Respondent of the venue, date and time of the hearing. Based on the uncontested evidence before this hearing I find as follows: I find that the Complainant received €50 in minimum notice. I find that based on his service he was entitled to statutory notice of 4 weeks. I find that the Respondent has breached this Act. |
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.
I have decided that this complaint is well founded.
I have decided that the Respondent has breached this Act.
I require the Respondent to pay the Complainant €1,262 (€308 X 4 = €1,312 less €50) within six weeks of the date below.
Dated: 13/12/18
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
No contract of employment issued, no compensation for Sunday working, public holidays and no minimum notice |