ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005139
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | An Employer |
Representatives | Blazej Nowak | Conor O'Toole Dawson O'Toole Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00007325-001 | 27/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00007325-002 | 27/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00007325-003 | 27/09/2016 |
Date of Adjudication Hearing: 13/09/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
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 may 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 during the course of the hearing.
The Complainant herein has referred a matter for dispute resolution under Section 8 Unfair Dismissal Act, 1977, Section 27 Organisation of Working Time Act, 1997, Section 24 National Minimum Wages Act, 2000 and the referral has been made within six months of the initial circumstances of the relevant contravention.
Withdrawn:
The complainant withdrew CA- 7325 -001.
Summary of Complainant’s Case:
CA 7325 – 002 The complainant’s representative stated that the complainant wasn’t given two consecutive week’s annual leave. When asked if he had asked for two consecutive weeks he admitted that he had not. CA 7325-003 The complainant commenced his employment with the respondent on the 03.03.2008 as a driver. His basis salary was €19,800 per annum. In addition to his basic salary he received a bonus. His salary together with his bonus brought his annual income up to at least €33,000 per annum. The complainant states that Section 23 of the Act was complied with. He wrote on the 05.10.2016 requesting a statement of his average hourly rate of pay for the period 18.12.2015 to 17.01.2016. In his complaint, he states that he did not receive a statement and that the failure is a breach of the act. During the hearing today, he admitted that he did receive a statement on the 23.04.2017 from the WRC inspectorate. The complainant is still at a loss to know how the employer calculates his bonus. He does not know if the bonus is part of the reckonable wages or not. Essential he claims that the information received is insufficient to allow him assess the various parts of his payments. He filed the claim with the WRC on the 06.12.2016. |
Summary of Respondent’s Case:
CA 7325 – 002. The complainant did not apply for two consecutive weeks leave. The complainant’s contract of employment states “Holidays must be taken during the years of entitlement. Normally no more than two weeks should be taken consecutively”. The respondent allows employees to take a number of shorter breaks or two full weeks should they choose to do so. The complainant resigned his position on the 26.04.2016. The last day of the annual leave year is 31.03.2016. The latest date he could have taken two consecutive weeks leave, was on the 18.03.2016. That is the last possible date the respondent could have contravened the act. On that basis, the complaint is out of time as it was not lodged with the WRC until the 27.09.2016. The complainant previous lodged a claim under this act and it was heard in September 2016. On that basis, he is barred from claiming he had reasons for not filing this claim within the 6 month, statutory time limited. CA 7325-003 The Adjudicator has no jurisdiction to hear the complaint. The complainant is not particularise. The complaint states “I am claiming a breach of the National Minimum Wage Act”. It is only in later correspondence that the complainant states that the claim is in relation to Section 23 of the Act. The remedy for failure to comply is set out in Section 23(6). It is criminal in nature and therefore is outside of the jurisdiction of the adjudicator. The section that gives jurisdiction to hear disputes is Section 24. There are no details submitted in relation to the claim. The complainant now states that he has complied with Section 23 in that he applied for a statement however that isn’t sufficient. The complainant needs to show that there was a failure to agree an appropriate amount. He is not done so. The matter was investigated by the inspectorate. No adverse finding was made. The complainant states today that the reason for the claim is that the information he did receive in April, 2017 is insufficient. However, he filed his claim with the WRC in December, 2016 before he had received the information. Therefore, he could not have known whether the information was sufficient or otherwise. |
Findings and Conclusions:
CA 7325-002. The complainant’s contract of employment allows for two consecutive weeks, annual leave. The complainant did not apply for two consecutive weeks. The complainant’s representative was fully aware that the complainant had not applied for two weeks leave and was fully aware that his contract of employment allowed for it. In those circumstances, this claim is at best disingenuous. This claim, as it is constituted, is totally without merit. I find that the claim is frivolous and vexatious. CA 7325-003 The complaint before me states “I am claiming a breach of the National Minimum Wage Act”. No further details in relation to the specifics of the claim were given. During the hearing the complainant’s representative stated that the reason for filing the claim was because the statement they did received following their Section 23 request was insufficient. The complainant filed his claim in December, 2016. He was furnished with the relevant statement in April, 2017 therefore he could not have known what was contained therein. When a complainant files a complaint, there is an onus on him to particularise the claim. It is not sufficient to simply claim a breach of any particular section of an act. The complainant has failed in his obligation to particularise his complaint. Furthermore, during the hearing, in an attempt to particularise the complaint, he stated that the statement furnished following his Section 23 request was insufficient. This could not have been the case as the claim was filed several months prior to receipt of the statement. In all of the circumstances, I find that the complaint fails. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision, in relation to the complaint, in accordance with the relevant redress provisions under Schedule 6 of that Act.
ADJ 5139 – CA 7325-002 and 003 fail.
Dated: 18/01/18
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
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