Complainant

Respondent

Anonymised Parties

Sales and Marketing Technician

A Technical Company

Act

Complaints Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00010597-001

03/04/2017

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

CA-00010597-002

03/04/2017

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

CA-00010597-003

03/04/2017

The Complainant worked as a Sales Rep with the Respondent from May 1,2014 until October 5,2016 on a 39-hour week. He was the sole employee. The parties are in Dispute regarding wages paid and received. I will return to this later.

The Employment ended in hostile circumstances, following which the complainant set up business himself. He has submitted three complaints before the WRC.

CA-00010597-001 Minimum Notice

The Respondent disputed that the Complainant received €500 nett payment per week. He administered his own pay via the Company cheque book and had requested an increased record of payment to assist him in getting a Mortgage in November, 2015. The Respondent was based out of the country and paper work was done by the Accountants. The Respondent understood that the Complainant was to be paid minimum wage plus commission/expenses.

The Respondent submitted P60 for 2014,2015 and P35 for 2016. He also submitted a copy of P45 which calculated the wage paid as €325.13 per week during 2016.

He confirmed that he approached the complainant on October 5, 2016 regarding his intentions of starting his own company against him. The Complainant did not deny it and the employment ended. CA-00010597-002 Terms of Employment

The Respondent submitted a copy of an employment contract set in 2014.He described it as a standard contract of employment and contended that it satisfied the Legislative requirements. He submitted that it was given to the complainant within the first one or two weeks of employment The Complainant had not been interviewed for the position.

CA-00010597-003 Annual Leave.

The Respondent disputed the claim. While the Respondent had not maintained records of annual leave taken, he gave oral evidence that the Complainant had received statutory annual leave during 2014 and more than statutory in 2015 and 2016. In addition, he was given time off on Fridays to pick up his son and view houses. the Respondent had even lent him money.

During the hearing, the Respondent wrote out a record of leave taken by the complainant inclusive of visits made to see him and his family. The Respondent submitted that the complainant had addressed and organised his own holidays as there was no formal system for application. There was an annual Christmas shutdown.

CA-00010597-001 Minimum Notice

I have considered both submissions in this case. The Respondent accepts that the employment ended without notice. The issue between the parties is the quantification of wages paid. From my perusal of the Documents submitted, I have established a series of inconsistencies in relation to pay. I note the clear discrepancy between both P60s for the year 2015. I note that the P45, 2016 measures wages paid as €325.13 gross over a 40-week year.

I did not receive a copy of the P60 governing 2016, the final year of employment. I have decided that the wages paid were €462.00 gross per week. This is the differential between the two figures submitted.

Section 4 of the Act sets out the Employers statutory obligations on notice.

Minimum period of notice.

4

4.— (1) An employer shall, to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

The Complainant had more than two years’ service at the time of termination. I find that the complaint is well founded.

CA-00010597-02 Terms of Employment

I have considered both party’s submissions on this claim. Section 3 of the Act places a statutory obligation on an Employer to give or cause to be given to an employee a statement in writing containing certain particulars of the terms of employment.

Section 3(4) of the Act stipulates that this statement be signed and dated by the Employer.

I have considered the document submitted by the Respondent and while, I note that it is largely compliant with the Act, however, it is neither signed and dated and is disputed by the complainant. I must, therefore resolve this conflict in favour of the Complainant. I have found that the complaint is well founded.

CA-00010597-003 Annual Leave

I have considered both submissions in this case. I note that the Respondent has not demonstrated compliance with S.25(1) of the Act on records. In accordance with S.25(4) of the Act, the burden of proof to demonstrate compliance with annual leave requirements falls to the Respondent.

I found the Respondent to be clear in his recall of annual leave availed of by the complainant, inclusive of Christmas shutdown and summer holidays in the cognisable period of the claim. On balance, I found the complainant extremely vague on the topic. It was clear that he accepted the evidence given by the Respondent. I am mindful that there was no agreed formalised system of applying for or recording annual leave.

23.—Compensation on Cesser of employment

(1) (a) Where —

(I) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

I am satisfied from the evidence submitted that the Complainant received his annual leave during 2015, 2016, the period of time cognisable under this claim.

I have found that the complaint is not 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-00010597-001 Minimum Notice

Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Section 4 of that Act.

I have found the complaint to be well founded and I order the Respondent to pay the complainant €924.00 in compensation for the breach of Section 4(2)(b) of the Act.

CA-00010597-002 Terms of Employment

Section 7 of Terms of Employment (Information) Act requires that I decide in relation to the claim consisting of a grant of redress in accordance with the 1994 Act as amended.

I have found that the complaint is well founded and I order the Respondent to pay the Complainant €1,386.00,( three weeks pay) in compensation for a continuous breach of Section 3 of the Act.

CA-00010597-003 Annual Leave

Section 27 of the Organisation of Working Time Act, 1997 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the complaint Is not well founded.

Minimum Notice, Terms of Employment, Annual Leave.