ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012979
Parties:
| Complainant | Respondent |
Anonymised Parties | Retail Team Leader | Retailer |
Representatives |
| Nicola Sammon Sol of Mason Hayes & Curran, Nigel Kane, Lindsey Pritchard |
Complaint:
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-00017013-001 | 24/01/2018 |
Date of Adjudication Hearing: 19/04/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Team Leader from 23rd October 2017 to 19th January 2018.He was paid €29,000 per annum. He has claimed that his contract of employment did not comply with Sec 3 of this Act. He has sought compensation. |
Summary of Complainant’s Case:
1) Rest periods |
He stated that the contract did not provide details of his breaks and rest periods entitlements.
2) Pay reference period
The contract did not refer to a pay reference period for the purpose of establishing his hourly rate of pay in the context of the National Minimum Wage Act.
3) Right to request the Hourly rate of pay
The contract did not advise him of his right to request a statement of his hourly rate of pay in accordance with the National Minimum Wage Act.
4) Sick Pay
The contact did not advise him of what sick pay arrangements apply.
5) Pension
The contract did not advise him of pension details in the company.
6) Collective Agreements
The contract did not advise of any collective agreements that may apply in this employment.
Summary of Respondent’s Case:
2) Pay reference period The Complainant was provided with payslips that set out his pay and pay period.
3) Right to request the Hourly rate of pay They accept that this was not provided for in the contract but it was a technical breach only.
4) Sick Pay It is accepted that the contract is silent on the sick pay. It is contained in the Staff Handbook but regrettably it was not given to the Complainant.
5) Pension The contract states that a pension scheme is available after a qualifying period and to contact HR.
6) Collective Agreements It is accepted that this was not provided for in the contract, but this was technicality and the Complainant could have asked for this at any time. |
Findings and Conclusions:
2) Pay reference period The Terms of Employment (Information) Act 1994 was amended by the insertion of (g) and (ga) in subsection (1) by Section 44 of the National Minimum Wage Act 2000. (g) requires ‘the rate or method of calculation of the employee's remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000’ to be incorporated. The 2000 Act defines ‘pay reference period’, in relation to an employee, as the period selected under section 10 by his or her employer; section 10 states that an employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month. The contract did not contain such a statement. However, the Complainant’s contractual salary was set at 1.7 times the national minimum wage. I refer to the Labour Court decision TED161 Patrick Hall v Irish Water it stated “ A statement of the type envisaged by s.3(1)(g) of the Act could not have had any practical significance in the circumstances of the Complainant. Therefore, I find that this complaint is frivolous. This is rejected. 3) Right to request the Hourly rate of pay I find that the insertion of ga) in this Act states that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee's average hourly rate of pay for any pay reference period as provided in that section. Section 23(2) of the Notional Minimum Wage Act 2000 provides: - An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20 , or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious. I again refer to the Labour Court decision TED161 Patrick Hall v Irish Water in the circumstances of the Complainant’s employment in which his salary was fixed at over 1.7 times the national minimum wage, this information, if furnished, could have no practical significance. The Complainant was precluded by s.2 of the Act of 2000 from seeking a statement pursuant to s.23 of that Act and any such request, if made, could only be frivolous or vexatious. This is rejected.
4) Sick Pay I find that the Respondent did not comply with Sec 3 (k)(i).
5) Pension I find that the information provided is not complete so I find that the Respondent has breached Sec 3 (k) (ii).
6) Collective Agreements I find that the contract is silent on this and so I find that the Respondent has breached Sec 3 (m). |
General Comment
A contract of employment is a vital document for the employee and the employer. It is essential that employers comply with the provisions of Sec 3 and provide all the information that an employee is entitled to.
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.
I have decided that the Respondent has breached Sec 3 in respect of Nos 1, 4,5, and 6 above.
I have decided that the Respondent should pay the Complainant compensation of €750 within six weeks of the date below. |
Dated: 5th July, 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Contract of employment |