ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00010717
Parties:
| Complainant | Respondent |
Anonymised Parties | Community Employment Scheme Employee | Unemployed Centre |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00014640-001 | 26/09/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00014640-002 | 26/09/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00014640-003 | 26/09/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00014640-004 | 26/09/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00014640-005 | 26/09/2017 |
Date of Adjudication Hearing: 20/12/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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 has been employed with the Respondent working as Assistant Supervisor on a Community Employment Scheme. The Contract of employment has been renewed each year in accordance with the Scheme Rules. The Complainant referred complaints to the Workplace Relations Commission on 26th September 2017 alleging the Respondent had breached the Payment of Wages Act, 1991 – 2015 in relation to an unlawful deduction – a complaint under the Organisation of Working Time Act, 1997 – 2015 in relation to payment for annual leave and Public Holidays – two complaints under the Protection of Employees (Fixed Term Work) Act, 2003 seeking a Contract of Indefinite Duration and that the Complainant had not been advised of opportunities for permanent employment or opportunities for training.
Similar complaints have been lodged in 2015, 2016 and 2017 and the outcome of these Adjudication Officer/Rights Commissioner Decisions are currently on appeal to the Labour Court.
These complaints under the Payment of Wages and the Organisation of Working Time Act cover the period from 27th March 2017 to 26th September 2017.
Summary of Complainant’s Position:
Payment of Wages Act, 1991 – 2015.The Complainant had wags reduced from €542.84 to €459.32 effective from May 2015. This is an illegal deduction.
Organisation of Working Time Act, 1997 – 2015. These complaints concern payment received for both annual leave and public holidays arising from the alleged unlawful deduction as set out in the complaint under the Payment of Wages Act above.
Protection of Employees (Fixed Term Work) Act, 2003. These complaints relate to a claim for a Contract of Indefinite Duration and the failure of the Respondent to inform the Complainant of opportunities for permanent positions and opportunities for training.
These are the same arguments that have been adduced by the Complainant in all previous complaints.
Summary of Respondent’s Position:
The Complainant had been issued with a Contract of Employment where the Complainant was required to work 39 hours a week. The Respondent was informed of an impending audit by the Department, who funded the Scheme. The Respondent also became aware that the Complainant was not working the contracted hours but was only working 33 hours a week. The Complainant was issued with a Contract of Employment to reflect actual hours worked excluding lunch breaks and paid accordingly. The Complainant has been paid correct wages and there is no breach of the Act.
Organisation of Working Time Act, 1997 – 2015. The Complainant was paid correct annual leave and Public Holiday entitlements based on wages paid to the Complainant in the reference period covered by these complaints.
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.
Payment of Wages Act, 1991 – 2015 CA-00014640-001
The evidence was that the Complainant had been paid for all hours worked in the reference period from 27th March 2017 to 26th September 2017, the date the complaint was lodged. In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare the complaint is not well founded.
Organisation of Working Time Act, 1997 – 2015 -CA-00014640-002 and 003
On the basis of the evidence the Complainant was paid annual leave and public holiday entitlements in accordance with Sections 20 and 21 of the Act. In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare the complaints are not well founded.
Protection of Employees (Fixed Term Work) Act, 2003.CA-00014640-004 AND 005
Section 2(1) of the Act defines a Fixed-term employee as “a person having a contract of employment entered into directly with the employer …..but does not include (b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme” In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare I do not have jurisdiction to hear these complaints as the Complainant is not a fixed-term employee as defined by the Act. |
Dated: 23rd April 2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Payment of Wages – deduction arising from reduction in hours worked Organisation of Working Time Act – Payment of annual leave and public holidays in light of PW deduction. Protection of Employees (Fixed Term Work )Act - excluded by virtue of Section 2(1) of the Act. |