ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00006603

Parties:

Complaints:

Date of Adjudication Hearing: 27th April 2017 and 22nd November 2017

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015, Section 7 of the Terms of Employment (Information) Act 1994, Section 27 of the Organisation of Working Time Act 1997, Section 8 of the Unfair Dismissals Act 1997 and Section 24 of the National Minimum Wage Act 2000 andfollowing 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 by the Respondent from 1st July 2004 to either 14th December or 22nd December 2016.   Based on a normal working week of 40 hours and the minimum wage of €9.15c per hour the Complainant’s normal weekly rate of pay was €366.0cc.

The Complainant was submitting the following complaints under the 4 Acts:

1. The Complainant was submitting that she had not been provided with a written statement of the particulars of her terms and conditions of employment in accordance with the requirements of Section 3 of the Terms of Employment (Information) Act 1994
2.  
3. The Complainant was submitting that the Respondent was in breach of her rights and entitlements in relation annual leave and public holidays in accordance with the requirements on Sections 19, 20, 21, 22 and 23 of the Organisation of Working Time Act 1997.
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5. The Complainant was submitting that she had been constructively dismissed by the Respondent in breach of the provisions of the Unfair Dismissals Act 1977.
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7. The Complainant was submitting that the Respondent had failed to pay her her entitlements in accordance with the requirements of the National Minimum Wage Act 2000.

The Respondent was rejecting all the complaints save for the one under the Terms of Employment (Information) Act 1994, where they conceded that they had failed to provide the Complainant with a written statement of the particulars of her terms and conditions as required by Section 3 of the 1994 Act.

Summary of Complainant’s Case:

The Complainant said that she commenced employment with the Respondent in July 2004.   She said her job was to repair and alter articles of clothing and upholstery with a sewing machine.

The Complainant said she worked 6 days per week.   She provided details of hours worked by her.   Based on the details provided by her she said she was working an average of 44 hours per week.

Minimum Wage and Pay:                                                                                                                                     The Complainant said that she was paid a piece-rate from the commencement of her employment.   She said that therefore her gross pay varied in relation to how many items she completed per week and she said there was a practice of secrecy surrounding the piece-rate.   The Complainant received a sum by cheques each week or every other week, which sum, she said amounted to between €130 and €150 gross per week.   The Complainant said that this amounts to €2.95c to €3.40c per hours, which she pointed out is far below the national minimum wage.   The Complainant said that this claim/complaint relates to the period of her employment going back 6 years from the date of the termination of her employment.  

The Complainant said she was never told the details of the piece rate, just that it depended on the number of garments completed, which was calculated by the Respondent.   She said that any questions as to the detail of the arrangements, in terms of the number of necessary garments for a given level of pay were always repelled by the Respondent. The Complainant’s Representative said that they, on 4 separate occasions, requested this information from the Respondent through a Data Protection Act Request.   They said that on each occasion they were ignored.   They said the following information was requested – which they stated was for the benefit of the Adjudicator, and would have been even further evidence for the Adjudicator of the Complainant’s complaint on the minimum wage issue:

• Pay statements
• Tax Records
• Records of all deductions from wages

The Complainant submitted that the Adjudicator should draw all appropriate negative inferences from the Respondent’s refusal to provide this information.

The Complainant said that given all of this, it is easy to understand her predicament over the years in trying to deal with the Respondent in trying to obtain her right to the minimum wage.   She said that a state of utter confusion prevailed as to pay, and the miniscule rate of pay applied ran a coach and horse through all basic minimum wage requirements.

The Complainant’s Representative amended his original calculations in relation to the complaints under the National Minimum Wage Act 2000 to take account of the submissions made (by the Complainant) at the initial date of Hearing as follows:

• 2011 [20 weeks] 44 hours/week @ €8.30c    =   €7,304.00c 
•          [26 weeks] 44 hours/week @ €8.65c   =   €9,895.60c
• 2012 [46 weeks] 44 hours week @ €8.65c   =   €17,507.60c
• 2013 [46 weeks] 44 hours week @ €8.65c   =   €17,507.60c
• 2014 [46 weeks] 44 hours week @ €8.65c   =   €17,507.60c
• 2015 [46 weeks] 44 hours week @ €8.65c   =   €17,507.60c
• 2016 [46 weeks] 44 hours week @ €9.15C   =   €18,519.60C 
• Total Due………………………………………………..       €105,749.60c
• 2011 pay actually received ………………………….    €5,551.18c
• 2012 pay actually received ………………………….     €4,166.00c
• 2013 pay actually received ………………………….     €6.995.00c
• 2014 pay actually received ………………………….     €5,836.59c
• 2015 pay actually received ………………………….     €4,563.00c
• 2016 pay actually received ………………………….     €4,009.32c
• Total Paid ………………………………………………….     €31,081.09c

Total ShortfallDue ………………………………………………..   €74,668.51c

Annual Leave and Public Holidays:                                                                                                                     The Complainant said that any time she took annual leave since the start of her employment she never received any pay for same.   The Complainant said that in in 2015 she took 17 days annual leave, but she did not receive any pay for any of these days.   She said that in 2016 she took 18 days annual leave and again she did not receive any pay for any of these days.

The Complainant said that she never received pay for a single public holiday in the entire duration of her employment with the Respondent.   She said that if she was required to work on a public holiday she received her normal pay and she never received pay in lieu of public holidays.

In relation to the question of compensation the Complainant said that the amount not paid for the 6 months prior to the termination of her employment was 4 weeks or 20 days at €9.15 x 8 hours amounting to €1,464.00c.   She said that in relation to public holidays in the 6 months prior to the termination of employment the amount due was 2 days at €9.15c x 8 hours amounting to €146.40c.

Terms and Conditions of Employment:                                                                                                            . The Complainant said that she was never given a written statement of her terms and conditions of employment as required by the provisions of Section 3 of the Terms of Employment (Information) Act 1994.   The Complainant sought maximum compensation as provided for in Section 7 of the 1994 Act. of 4 weeks wages, €9.15c x 40 hours x 2 weeks, i.e. €1,464.00c.

Constructive Dismissal:                                                                                                                                      . The Complainant said that the Respondent’s conduct towards her became so unreasonable as to make the workplace completely unbearable for her.   She said that it is clear that the Respondent acted in complete disregard for her and the unwritten contract of employment.   The Complainant said that some examples of the Respondent’s unreasonable conduct include the following:

• All of the above outlined breaches of law and the Complainant’s rights in law, which, when they were flagged to the Respondent, were dismissed out of hand by the Respondent.

• In September 2016, an Inspector from the Office of the Revenue Commissioners arrived at the Respondent’s premises.   The Complainant said that the Respondent had been ‘tipped off’ about the inspection by another local business.   The Complainant said that before the Inspector arrived, the Respondent, in a state of panic peremptorily herded employees out on to the street to hide.   The Complainant said the Respondent ordered her not to disclose her hours of work to the Revenue Officer, to confirm to the Officer that she was paid a piece rate and not to reveal anything further to the Officer.   The Complainant said that following this, she in shock, complained to the Respondent about the fact that so much information about her working arrangements had to be withheld from the authorities.   She said that alarmingly for her the Respondent told her that if the Respondent had told the truth to the Inspector then the Respondent would have been in very serious trouble with the Revenue Commissioners.   The Complainant said the Respondent then threatened her that if she objected to the misrepresentations made to the Revenue Commissioners, that the Respondent would, in revenge, torpedo the Complainant as far as her tax affairs were concerned.   The Complainant said that she became enormously upset and at how her already horrible working conditions were becoming unbearable and were starting to threaten her, and her family’s financial safety.     The Complainant was also concerned that she was participating in what was effectively was something of an illegal enterprise.

• The Complainant said that throughout her employment with the Respondent she worked an average of 44 – 48 weeks per year.   She said that however, her P60 Form submitted at the end of each year, the finer details of which she only started to pay attention to after the issue with the Revenue Commissioner, always showed fewer weeks.   She said that for 2015, she learned in November 2016 that although she worked for approximately 45 weeks, her P60 for that year showed that she worked only 35 weeks.   The Complainant said that it was starting to dawn on her that her PRSI contributions simply do not reflect the true value of her 12 year long PRSI contributions and she said that as a consequence the Respondent had already adversely affected her entitlements as follows:

• State Old Age Pension

• Widow’s Pension

• Maternity Benefit

• Adoptive Benefit

                 The Complainant said that she was becoming more and suffocated by the predicament of         .               where the Respondent had left her.

1. The Complainant said that from 1st November 2016, she requested written payslips from the Respondent on a daily basis, in order for her to review her Medical Card.   She said that the Respondent refused each of her requests, presumably because of the Revenue raid and the lies that the Respondent had propagated.   The Complainant said that because of this she missed the deadline and her medical card was suspended.
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3. The Complainant said that when she was temporarily laid-off for several weeks during January and February 2016, the Respondent refused to sign the forms to allow her to claim social welfare payment.The Complainant said as a consequence neither she, whose presence ought to have generated their creation, nor the Adjudicator, has access to payslips or any single solitary, employment related document from the Respondent.
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6. The Complainant said that in addition to the deplorable conditions of employment and an adverse workplace environment the premises were becoming increasingly unsuitable as a place in which to work.   She said the Respondent started to stop using the heat to save on electricity costs.   She said that the premises became unbearably cold once Winter began at the end of 2016 and she said that she was being attacked on all sides.
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8. The Complainant said that in March 2016, she was given blood stained clothes to work on and consequently she tried to insist of the Respondent that the clothing be cleaned prior to being handled by her or that she get gloves or other adequate protection.   She said that the Respondent dismissed out of hand her perfectly reasonable request and forced her to work on the contaminated items.    She said that the Respondent subsequently refused to implement any hygiene policy for garments that were to be mended by the Complainant and other employees.

The Complainant said that there was no Safety Statement provided by the Respondent and thus she was left in uncertainty as to how to manage a situation that posed such a great risk.

1. The Complainant said that the Respondent was prone to mood swings and fits of rage directed at the employees on a weekly basis.   She said that throughout 2016, and in particular as the year went on, the Respondent constantly put excessive pressure on the Complainant.   The Respondent constantly questioned the Complainant as to why she was taking so long with items of work.   She said that arguments also became more frequent and more unreasonable towards the end of the Complainant’s employment.   The Complainant said that the more she raised grievances with the Respondent the more the Respondent responded aggressively and belligerently.   The Complainant said that towards the end of her employment, she was made to feel like a worthless individual and she was frequently left crying.
2.  
3. The Complainant said that on 12th October 2016, her child was very sick and she had to take a day of work (unpaid).   She said the Respondent warned and threatened her that she could take one day off work only.

The Complainant said that in the lead up to 14th December 2016, she was suffering greatly as a consequence of her working conditions; she was unable to sleep and she found herself very tearful and easily irritated, even while at home.

She said that on 14th December 2016, she worked from 9.30am to 12 midday and she then attended with her GP and explained what effect the massive build-up of pressure and stress in her workplace along with consequential exhaustion, lack of sleep and anxiety was having on her.  

The GP advised that the Complainant was unable to return to work due to the impact it was having on her physical and mental health and that she needed at least a month off work to recover; the GP also prescribed sleeping tablets and anti-depressants and queried if her work could continue.

The Complainant said that fearful of being chastised by the Respondent for having described her appalling work conditions she begged her GP for this not to be mentioned on the Medical Certificate.   The GP issued a Medical Certificate stating the Complainant could not work due to tiredness, which she said factually was not untrue.   The Complainant handed the Certificate to the Respondent later the same day.   She said the Respondent became very angry and aggressive towards her.   The Respondent said to the Complainant “do you realise what you’ve done to me.”   The Complainant said that she felt belittled and that she, in a watershed moment, after speaking to her husband, realised that it could not go on any longer.

The Complainant said that in the 9 months prior to 14th December 2016, the environment at work had become unbearable.   The Complainant could not bear the deplorable working conditions any longer.   She said that there was a complete absence of trust between the parties necessary to maintain an employee/employer relationship.   The Complainant said that the conduct of the Respondent was so unreasonable that she could not have been expected to be subjected to it any longer.   The Complainant said the contract of employment had clearly been terminated by the Respondent’s conduct and that she could never again work there; she had been constructively dismissed.

The Complainant said that since terminating her contract of employment, she has received numerous calls from the Respondent during her certified sick leave telling her to return to work and she said that this caused her further stress and upset and it confirmed her in her view that it would not have been physically possible for her to work for the Respondent after 14th December 2016.

The Complainant said that there were no formal or informal Grievance Procedures within the Workplace.   She said that the only person to whom complaints could rationally be made, the Respondent, was in fact the perpetrator of the offending behaviour.   She said that nonetheless she did convey her dissatisfaction to the Respondent on multiple occasions.   She said that the Respondent’s usual manner of dealing with grievances was to either ignore them or to raise her voice and become aggressive.   The Complainant said that the following are some examples of the grievances raised by her:

1. In March 2016, she complained to the Respondent about her conditions of employment, including that she had been deprived of public holiday pay for St. Patrick’s Day.   She said the Respondent accused her of being a ‘troublemaker’ and told her to stop causing trouble by enquiring about her employment rights.
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3. On 13th June 2016, the Complainant again complained to the Respondent about her conditions of employment, including that she had been deprived of public holiday pay for the June Public Holiday.   She said that the Respondent replied that she could resign if she so wished.

1. On 18th July 2016, the Complainant raised a grievance about conditions of employment, including holiday (annual leave) pay and she said that the Respondent simply ignored her grievance.                                                                                                                                                 . .
2. On 12th September 2016, the Complainant raised a grievance about her pay rate being vastly less than the national minimum rate of pay.   She said the Respondent rejected her complaint and said to her: “What is the point in paying you more when you’re doing the same amount of work”, she said this was a reference to the piece rate.
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4. On 1st November 2016, the Complainant made a complaint to the Respondent about being denied her conditions of employment including annual leave entitlements in the context of the refusal of 2 days of annual leave on 23rd and 24th December 2016, when she had previously worked many christmases in a row and that it was undoubtedly her turn to have those days off.   The Complainant said the Respondent repeatedly refused to allow her this time off despite the adequate notice being given.
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6. On 16th November 2016, the Complainant raised a grievance about not been given written payslips and about the breaches of legal rights that had arisen with the Revenue Commissioners.   The Complainant said that the Respondent refused to supply written payslips on a weekly basis, stating it would be too expensive and refused to engage on the other issues.

The Complainant said that adverse inferences should be drawn by the Adjudicator from the Respondent’s failure to provide any documentation, including Grievance Procedures, Employee Handbook, despite multiple requests made for same.

The Complainant gave direct evidence.  

The Complainant emphatically denied the evidence of the Respondent that she was paid partially (the majority of her wages) in cash by the Respondent in addition to the wages paid by cheque to her.   She said there would be no reason to split her wages this way and it did not happen.   The Complainant said that she presented her work notebook to the Respondent every week or fortnight and the Respondent then took that page from her workbook and paid her by cheque.   She said the Respondent decided/calculated the figure or amount paid to her and then paid it to her.   She was never told how this was worked out or had any input.   She said that while the amount varied it rarely exceeded €150.00c per week.

In relation to payslips the Complainant said that up until the end of her employment when she asked for payslips she got them perhaps after a few weeks.   The Complainant agreed that the Respondent had facilitated her in relation to working time around the needs of her children.

The Complainant in response to questions stated that she never asked the other employees (or the Respondent) what the other employees were paid.

The Complainant agreed that the Respondent worked in another room from the employees and that the heating was controlled from the room in which the employees worked and they could and did control it from the room themselves.

The Complainant had submitted two pages from her work note book and answered questions in relation to them.   She said that she did not have others as the Respondent generally took the pages from her weekly or fortnightly.   She said that she was paid only by cheque either weekly or every other week.   She said that she was unsure how other employees were paid, cash, cheque, bank transfer or other.  

The Complainant said that she asked for pay statements for the purpose of her husband’s Jobseeekers Benefits or Allowance or for Medical Card Application Forms.    She agreed that up until close to the end of her employment the Respondent had in fact filled in the forms to facilitate her Medical Card Application forms.

The Complainant agreed that her submission was that she had worked for the Respondent for a period of 12 years for a wage that was only a fraction of the minimum wage.   She said she was not aware of the minimum wage pay rate until towards the end of her employment.

The Complainant submitted that she had been on layoff in January and February 2016, however in questioning she accepted that the records showed she had received pay cheques in that period.

The Complainant said the last occasion she asked about her holiday/annual leave pay was in the final July she worked for the Respondent and she said that she was told the Respondent would not pay her holiday pay.

The Complainant was asked if it was her intention to return to work for the Respondent when she saw her GP shortly before her employment with the Respondent terminated.   She said that she thought and expected that she would return to work, but when she was ‘pestered’ by the Respondent about a return to work while still sick that it became too much for her and that she realised after discussing the matter with her husband that she simply could not return to work for the Respondent.

Following some discussions, the Complainant accepted that she had not as asserted by her “had to work many christmases in a row”

In response to questions the Complainant said that she never told or said to the Respondent that she felt she was being bullied and/or harassed.   Nor at any stage did she tell the Respondent that because of the way she was being treated she felt she would have to leave the employment.   She further confirmed she did not know (of any reason why) the Respondent would be aware that she (the Complainant) might have to leave the employment.

The Complainant gave evidence of her efforts to secure employment and mitigate her losses.

Following the submissions of the Respondent the Complainant obtained and submitted to the (resumed) Hearing a copy of her and her husband’s Social Welfare records in relation to benefits / allowances that supported their position that the Complainant had not sought to be paid (illegally) a large portion of her wages in cash (under the counter) not declared for welfare or taxation purposes.

Based on the foregoing the Complainant sought favourable decisions in relation to each of her complaints under each of the four (4) Acts.

Summary of Respondent’s Case:

The Respondent was denying the complaints under each Act save for the one under the Terms of Employment (Information) Act 1994.

The Respondent said that the Complainant was employed by them from July 2004 as a sewing machinest.   They said that she was employed initially on a piece rate and subsequently on the minimum wage applicable at the relevant time.

The Respondent responded as follows to the complaints under each of the four (4) Act.

Terms of Employment (Information) Act 1994:                                                                                           The Respondent said they accept and acknowledge that they did not provide the Complainant with a written statement of the particulars of her terms and conditions of employment as required by the provisions of the 1994 Act.

The Respondent said that however this was for reasons that have become apparent in respect of the remainder of the working arrangement between the parties.   The Respondent said that the core issues of rates of pay and hours of work were clear and these terms initially were:

1. Payment of a piece rate per item that the Complainant completed   -and-
2. 40 hours work per week.

The Respondent said the rate of pay was altered in the course of the employment.

The Respondent said it is accepted by them that they did not comply with the 1994 Act.

Organisation of Working Time Act 1997:                                                                                                         The Respondent said the nature of the employment relationship was that the Complainant presented her working hours to the Respondent on a weekly basis and she was paid accordingly.     The Respondent said that by arrangement between the parties these payments were partly in cash and partly by cheque, with the cheque portions paid fortnightly.

The Respondent said that payment of any holiday pay was paid irregularly when presented or at the end of the calendar year.   The Respondent said that in this instance it was to be paid at the end of the calendar year (but was not)   In response to questions the Respondent accepted and acknowledged that this practice of paying for annual leave at the end of the calendar year was not in compliance with the requirements of the 1997 Act.   The Respondent said the Complainant was due holiday pay for one week’s holidays in July, one week’s holidays in August and one week’s holidays in October. They said that the 2 relevant Public Holidays were taken during these holiday period and accordingly had to be accounted for.    

The Respondent said the Complainant left their employment in advance of them completing these calculations and payments and that the amount due was offered to the Complainant in open correspondence by them without response.   The Respondent said that these payments would have been paid by years end but the Complainant had left by that time.   They said that at all times it was accepted by them that these payments were outstanding.

In response to questions the Respondent confirmed and acknowledged that they did not keep records as prescribed by Section 25 of the 1997 Act (or indeed in any other form) to demonstrate compliance with the requirements of the 1997 Act.

Minimum Wage Act 2000 and Unfair Dismissals Act 1977:                                                                          . The Respondent said that the Complainant’s Complaint Form refers to no statement being provided within 4 weeks in breach of the Minimum Wage Act 2000 and they said that this is incorrect.

The Respondent said that they paid the Complainant at the rate of €9.15c per hour since January 2016.   They said that prior to that she was paid the then applicable minimum rate of €8.65c per hour.   The Respondent said the Complainant alleges she was paid €2.80c to €3.22c per hour; the Respondent submitted that this figure is completely unsustainable as an assertion.

The Respondent said that the Complainant worked for them for a period of 12 years without issue.   They said that by agreement the Complainant was paid a sum by cheque on an official capacity fortnightly with the balance of the sum due to her paid in cash weekly.   The Respondent said they accept that it was completely inappropriate to do this.   They said that to suggest that any worker would work for €2.80c to €3.22c per hour, which is approximately 30% of the minimum wage for a period of 12 years is completely unrealistic and simply unsustainable.

The Respondent said it is even more unsustainable when the extent to which the Complainant was fully familiar with and fully utilised her ‘entitlements’ in respect of Social Welfare Benefits, Medical Card Benefits and allocation of Income Tax Credits.  

The Respondent said that at the outset the Complainant joined the Respondent in the business.   The Respondent said that by her own admission she was largely clueless as to the accounts, regulations or business in general.   The Complainant was the first employee of the business and at the time did not have a PPS number and she was paid on the basis of a piece rate for the work completed.

The Respondent said that the Complainant now has 2 young children and she has been facilitated by the Respondent in respect of her hours of work so that she could arrive late having delivered her children to school or childcare and leave periodically throughout the day to collect and arrange care for the younger child and to collect the older child.   The Respondent said that it is for these reasons that clear and regular hours of work are difficult to outline.   The Complainant presented her hours worked at weeks end and these were accepted by the Respondent on trust.    The Respondent said that as a result of this arrangement the piece rate was no longer sustainable and the Respondent decided to dispose of the piece rate and pay the minimum wage instead.

The Respondent said that she is in a difficult position in proving these matters.   It is the position of the Respondent that at all times this structure was kept in place to facilitate the Complainant and was at her request.   In that respect the Respondent submitted that the Complainant had been claiming a Social Welfare payment for part-time work where she was in fact working full-time.   The Respondent referred to the fact that some 3 weeks after the Complainant alleged she was constructively dismissed, she was claiming Illness Benefit purportedly as an employee (this of course is not correct as there is no requirement to be in employment to qualify for Illness Benefit).

The Respondent said the Complainant has also alleged that she never received payslips.   The Respondent said she does not have an accounts or payment IT System, but that she made payslips available on request.   The Respondent said she obtained these from her Accountant who has the necessary software package.   The Respondent said the Complainant requested these a number of times each year, which they believe was to facilitate claims for welfare benefits.

The Respondent said that the Complainant’s Illness Benefit of €84.50c suggests she was claiming as a part-time worker.

The Respondent said that some weeks after she alleged she was constructively dismissed and after the letter of complaint from her Solicitor a document was dropped in the Respondent’s premises along with a cover note to facilitate the Complainant in maintaining her Medical Card.   The Respondent said that this is not consistent with an allegation that she was constructively dismissed or of a relationship so hostile that the Complainant had to cease her employment.

The Respondent said that of further significance is the fact that the Complainant and her husband were informed enough to take the step of sharing tax credits with her husband thereby maximising his tax credits and limiting her to the benefit of the married couple

The Respondent said that these steps taken by the Complainant show that she is not an innocent victim in this arrangement but rather complicit and, from the Respondent’s point of view, the party to gain substantially from this.   The extent of the Respondent’s benefit was the non-payment of Employer’s PRSI Contributions whereas the list of the Complaint’s benefits are significant.

The Respondent submitted that therefore that neither party can approach this matter with clean hands and accordingly the Complainant should not be unjustly enriched as a result of the arrangements put in place entirely for her benefit and at her insistence.

In her Complaint Form in respect of the complaint of Constructive Dismissal states the Complainant’s “working environment, working conditions etc had become so unbearable (including becoming illegal) that she had no choice but to unilaterally terminate her employment”.   The Respondent said the Complainant was on certified medical leave from 14th December 2016 to 14th January 2017 due to “tiredness/fatigue” as certified by her GP.   The next communication received from her was on 28th December 2016 stating that she had inter alia been ‘constructively dismissed’

The Respondent said that in their letter of 19th April 2017 the Complainant’s Representative further particularised the alleged circumstances leading to the constructive dismissal; the Respondent said that for the avoidance of doubt those assertions are denied.

The Respondent said that the Complainant claims that in December 2016 she “was singled out to have annual leave refused”.   The Respondent said that it is unclear how on 1st November such a complaint could have been made.  

The Respondent said that in that correspondence the Complainant alleges that she worked an average of 44 to 48 weeks per year.   They said it is unclear on what basis it was only 44 to 48 weeks other than to facilitate the Complainant when she wished to take unpaid time off to deal with her family and they said this is another indication of the length to which the Complainant was facilitated.

The Respondent said that the other matters are all denied in their entirety; but even if they were true, which is denied, they do not amount to constructive dismissal.   They said that for example the location of the Complainant’s workplace has been the same for the previous 12 years and no issues have ever been raised with it.   The Respondent denied that any grievances were made as set out by the Complainant and in particular the assertion in relation to refusing the Complainant time off when her children were sick is particularly hurtful given the lengths to which the Complainant was facilitated in relation to her family situation.

The Respondent submitted that based on the evidence available it is entirely unsustainable to allege that the Complainant was constructively dismissed by them  

The Respondent said they accept that their documentation in relation to the rates of pay are entirely unsatisfactory and they further accept that the onus is on them to produce this documentation.   They submitted that however, it is clear from the documentation available that this arrangement facilitated and assisted the Complainant entirely and not the Respondent, such that it was in fact in the Complainant’s interest that the arrangement be maintained.

The Respondent submitted that it would be entirely unjust for the Complainant to be enriched as a result of this arrangement and if the concern was merely in relation to improving her terms and conditions of employment, the Complainant could have made a reference to the Rights Commissioner Service (as it was) or the WRC to seek an inspection including reference to the Minimum Wage Act 2000 (of course it is the case that the Rights Commissioner Service never conducted inspections).   The Respondent said the Complainant did not so do as she decided she was going to cease her employment and she hoped to recover as large a sum as possible and is so doing ignoring the arrangement that had been in place for her benefit.

In response to questions the Respondent confirm that not only did they not have or kept records in accordance with the requirements of Section 22 of the National Minimum Wage Act 2000 to demonstrate compliance with the requirements of the 2000 Act, but they did not have any records whatsoever, such as records showing withdrawals from their bank accounts that matched the alleged cash payments made to the Complainant in terms of amounts and dates allegedly paid or records shown the amounts deducted from takings that matched the alleged payments or dates of same allegedly paid to the Complainant.   Indeed, the Respondent was not even able to state the amounts of cash allegedly paid to the Complainant for the few weeks the Complainant had records for (the last few weeks of her work).

The Respondent gave direct evidence that largely supported her written and verbal submissions.

The Respondent said that she entered into an arrangement with the Complainant whereby she paid her part of her wages in an official capacity by cheque fortnightly and she paid her the balance unofficially in cash usually weekly.   She said that this was done at the behest of the Complainant and was for her benefit.   She said that the Complainant presented to her, from the Complainant’s own work notebook the hours and/or work completed by her and the amount in wages due and that the she (the Respondent) accepted this on trust and paid her accordingly based on the hourly minimum rate of pay applicable at any given time.   She said that she paid the Complainant an amount in cash and officially paid her the balance by cheque.  

The Respondent was unable to say how the figure was divided between the cheque and cash and how she arrived at or calculated these figure.   Even when she was presented with the last few weeks work notebook records of the Complainant at the Hearing she was unable to say how much was paid in cash to the Complainant.

In response to questions the Respondent said that all other employees were paid in cash and each of them signed to confirm what they had received.   The Respondent confirmed that the Complainant was not asked by her and did not sign to confirm any cash received and she was unable to say why she did not ask or require her to do this.    The Respondent said that there was no other record of this, i.e. no bank records of withdrawals etc, etc.   The Respondent said that she kept cash on the work premises and that accordingly would have cash available to pay the Complainant.   However she confirmed that she had no record of any kind to confirm or support this.

In response to questions the Respondent confirmed that she did not declare the cash element of wages paid in her tax returns.

In respect of the question of the heating in the room the employees worked in, the Respondent said she did not control the heat that it is controlled by the employees in that room.

In relation to payslips the Respondent said that when the Complainant asked for payslip, usually for medical card applications or social welfare applications, they were provided to her, sometimes perhaps after a few weeks.   The Respondent said that no complaints in that respect was made to her by the Complainant.

The Respondent denied that the Complainant had been ‘laid-off’ in January – February 2016 and submitted evidence of pay cheques paid to her in that period.

The Respondent said that no grievance was raised by the Complainant with her.

The Respondent denied that the Complainant had ever been required to work on blood stained garments.   She also denied that she ever told or threatened the Complainant that she could only take one day off work to care for her sick child; she said the reverse was the case the Complainant was facilitated in every possible way in relation to caring for her children.

The Respondent denied she was belligerent or aggressive with the Complainant.

The Respondent said the Complainant never, at any stage, said anything or give her any indication whatsoever that she felt bullied, harassed or oppressed at work or that she was considering resigning from her job for any reason much less that she was being treated intolerably by the Respondent.

The Respondent said that the Complainant’s resignation and claim for constructive dismissal came as a total surprise to her and she no indication whatsoever beforehand of it.

The Respondent submitted that all of the complaints, save for the one under the Terms of Employment (Information) Act 1994, were not well founded and they should be rejected.

Findings, Conclusions and Decisions:

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.

Section 7 of the Terms of Employment Information) Act requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the same Section of the 1994 Act.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the same Section of the 1997 Act.

Section 8 of the Unfair Dismissals Acts 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of the 1977 Act.

Section 24 of the National Minimum Wage Act 2000 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of Section 26 of the 2000 Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows in relation to the complaints under the 4 Acts.

I note that I have concluded, and this was agreed by both parties, that the Complainant’s normal weekly pay for the purposes of these cases is €366.00c, i.e. the appropriate minimum wage of €9.15c per hour multiplied by 40 hours per week.

Terms of Employment (Information) Act 1994:                                                                                                 . The Respondent confirmed and acknowledged that they had not provided the Complainant with a written statement of the particulars of her terms and conditions of employment as required by Section 3 of the Terms of Employment (Information) Act 1994; and they accepted and acknowledged that accordingly they were in breach of the Complainant’s rights and entitlements under the 1994 Act.   Accordingly, I must find that the Respondent is in breach of the Complainant’s rights and entitlements under the 1994 Act and that the complaint is well founded.

Organisation of Working Time Act 1997:                                                                                                            . Annual Leave: The Respondent acknowledged that there was annual leave entitlements due to the Complainant at the time of the termination of her employment that she had not received.   They said it was their practice to pay for annual leave, not at the time it was taken, but at the end of the calendar year, but they accepted that this had not happened in the instant case and that accordingly they were in breach of the Complaint’s rights and entitlements under the 1997 Act in respect of annual leave.   In discussion they accepted that this practice is in breach of the provisions of the 1997 Act, which provides that annual leave must be paid at the time it is taken and that accordingly this practice is in clear breach of the provisions of the 1997 Act in respect of annual leave.

Thus even based only on the evidence of the Respondent the complaint in relation to annual leave entitlements is well founded and must be upheld.

However it she should be noted that I am accepting the Complainant’s submissions in relation to annual leave entitlements under the 1997 Act and I find that her complaints are well founded in that respect.

Public Holidays: Again the Respondent acknowledged that they were in breach of the Complainant’s rights and entitlements in relation to public holidays in the relevant period.   Accordingly I must find that the complaint in relation to public holidays in accordance with the 1997 Act is well founded.

Minimum Wage Act 2000: Section 22 of the Minimum Wage Act 2000 provides:

“(1) An employer shall keep, at the premises or place where her or his employee works, or, if the employee works at 2 or more premises or places, the premises or places from which the activities that the employee is employed to carry on are principally directed or controlled, such records as are necessary to show whether this Act is being complied with in relation to the employee and, subject to Section 23(5), those records shall be retained by the employer for at least 3 years from the date of their making.

(2) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,500 [€1,904.61c]

(3) Without prejudice to subsection (2), where an employee fails to keep records under subsection (1) in respect of her or his compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a Rights Commissioner or the Labour Court, that the provision was complied with lies on the employer”

The Respondent confirmed that they did not keep or have records in accordance with the provision of Section 22 of the Act of 2000 as quoted above and they accepted that accordingly the burden of proof in relation to demonstrating compliance with the provisions of the 2000 Act rested with them.   The Respondent further confirmed that they did not have any record whatsoever, to demonstrate that they had paid the Complainant cash payments in addition to the official cheque payments made by them to the Complainant: e.g. such as records showing withdrawals from their bank accounts that matched the alleged cash payments made to the Complainant in terms of amounts and/or dates allegedly paid; or records showing the amounts from takings that matched the alleged cash payments in terms of amounts and/or dates allegedly paid.   The Respondent was unable to state how the amounts allegedly paid in cash were calculated and even when confronted with a copy of the records for the last weeks of work from the Complainant the Respondent was still unable to state how much in cash was paid to the Complainant.

Based on the above paragraph it is clear that the Respondent has not discharged the burden of proof required of them by Section 22(3) of the Act of 2000 and accordingly I must find that the complaint under the Minimum Wage Act 2000 is well founded.

Unfair Dismissals Act 1977:   I note that in the instant case the complaint/case is one of/for constructive dismissal and the burden of proof in a constructive dismissal case falls on the Complainant and it is a high burden to meet.

I note that the Employment Appeals Tribunal (EAT) have consistently found and determined that in a constructive dismissal case the Complainant must demonstrate that they have availed of and fully exhausted all procedures available to them to deal with any perceived issues before any question of resignation justifying constructive dismissal can arise.

In her direct evidence at the Hearing the Complainant confirmed that she never told the Respondent that she felt or believed that she was being bullied or harassed at work.   She further confirmed that at no stage did she tell the Respondent that because of the way she was being treated she felt that she would have to leave the employment.   The Complainant further confirmed that she did not know of any reason why the Respondent would be aware that she (the Complainant) might have to leave the employment.

It is clear to me from this direct evidence of the Complainant and from other evidence adduced at the Hearing that at no stage was the Respondent put on notice by the Complainant, or any one else of any serious issues or afforded the opportunity to address any such issues: on this basis alone I must find that the Complainant was not constructively dismissed by the Respondent.    

However this is not the only issue of concern to me in relation to the constructive dismissal complaint.   I have difficulty accepting much of the evidence of the Complainant is this respect and consider much of it to be incoherent and contradictory.   For example the Complainant said that she was put on ‘layoff’ by the Respondent in January and February of 2016, however it emerged that she had actually been paid during that period, a fact she then accepted.   The Complainant initially said the Respondent refused to provide her with payslips; however in direct questioning she accepted that apart from at the very end of her employment she got payslips every time she asked for them.   The Complainant initially submitted that she had to work many christmases but in her direct evidence she acknowledged that this was not so.   The Complainant is her initial written submissions said that Respondent stopped using the heat in the room where the employees worked, turned it off to save money, leaving the room unbearably cold.   However, the Complainant in her direct evidence confirmed that the heating was not controlled from the room where the Respondent worked, but rather was controlled from the room in which the employees worked and the employees could and did control it from the room themselves.   I also accept the submission by the Respondent that the fact that the Complainant, after her resignation, dropped a document along with a cover note from her asking the Respondent to fill in to facilitate her maintaining her Medical Card is not at all consistent with an allegation that the atmosphere was so hostile between her and the Respondent that she had to cease her employment and was constructively dismissed.

For these reasons and based on the evidence submitted at the Hearing I have concluded that the Complainant’s evidence in relation to constructive dismissal is not to be relied upon.

For all of the foregoing reasons I find that the Complainant has not met the burden of proof necessary to demonstrate that she was constructively dismissed by the Respondent and her complaint fails.

Based on the foregoing findings the following are my decisions in relation to the specific complaints under the four (4) Acts.

CA-00008978-001: Terms of Employment (information) Act 1994:                                                         . Based on the above findings I declare that the complaint under Section 7 of the 1994 Act relation to the provisions of Section 3 of the 1994 Act in respect of written statements of terms and conditions of employment is well founded and it is upheld.

In accordance with the provisions of Section 7 of the 1994 Act I require the Respondent to pay the Complainant compensation in the sum of €1,300.00c within 6 weeks of the date of this decision for breach of her rights under Section 3 of the 1994 Act in relation to a written statement of her terms and conditions of employment.

CA-00008978-002: Organisation of Working Time Act 1997:                                                           . Based on the above findings I declare that the complaint under Section 27 of the 1997 Act in relation to annual leave entitlements in accordance with Sections 19, 20 and 23 of the 1997 is well founded and it is upheld.

I note that the amount of annual leave due for the relevant period is four (4) weeks, which based on the Complainant’s normal weekly rate of pay of €366.00c is €1,464.00c

I further note that Article 11 of the Council Directive 2002/15/EC upon which the legislation is based states: “Member States shall lay down a system of penalties for breaches of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that these penalties are applied.   The penalties thus provided shall be effective, proportional and dissuasive.”

Taking into account the above, and in accordance with the provisions of Section 27(3) of the 1997 Act, I now require the Respondent to pay the Complainant compensation in the sum of €3,000.00c within 6 weeks of the date of this decision for breaches of her rights under Sections 19, 20 and 23 of the 1997 Act in respect of annual leave entitlements.

CA-00008978-003: Organisation of Working Time Act 1997:                                                            . Based on the above findings, I declare the complaint under Section 27 of the 1997 Act in relation to public holiday entitlements in accordance with Sections 21 and 22 of the 1997 Act is well founded and it is upheld.

I note that the number of public holidays in the relevant period is two, which is equal to €146.40c.

Taking into account the above quote from Article 11 of the Council Directive 2002/15/EC and in accordance with the provisions of Section 27(3) of the 1997 Act, I now require the Respondent to pay the Complainant compensation in the sum of €300.00c within 6 weeks of the date of this decision for breach of her rights under Sections 21 and 22 of the 1997 Act in respect of public holiday entitlements.

CA- 00008978-005: National Minimum Wage Act 2000:                                                                               . Based on the above findings I declare that the complaints under Section 24 of the National Minimum Wage Act 2000 is well found and that it is upheld.   I note that the Complainant’s Representative confirmed that they are only claiming in relation to the six (6) year period prior to the termination of the Complainant’s employment with the Respondent and accordingly my findings and decision will be confined to that period.

I declare that the Complainant is entitled to the total sum of €74,668.51c in respect of the underpayment of wages to her in accordance with the provisions of the National Minimum Wage Act 2000 in the relevant period and accordingly I require the Respondent to pay her that amount.

CA-00008978-004: Unfair Dismissals Act 1977:                                                                                              . Based on the above findings I declare that the Complainant was not unfairly dismissed, constructively or otherwise by the Respondent.   The complaint under the Unfair Dismissals Act 1977 is not well founded and it is rejected.

Dated: 16.1.18

Workplace Relations Commission Adjudication Officer: Seán Reilly

Key Words:   1. No written statement of terms and conditions of employment.                                .   .                       2. Annual Leave and Public Holidays                                                                                         . .                       3. Constructive Dismissal                                                                                                                        .                       4. Minimum Wage.