ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00007649

Parties:

Complaint(s):

Date of Adjudication Hearing: 13/10/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.

The Complainant made his submission at an earlier hearing as the Respondent was responding to two similar cases on the same day. As the Respondent had not attended the earlier hearing, and the WRC advised it had forwarded written notification to the Respondent of both cases, it was assumed the Respondent was not going to attend. The Respondent presented a response to the Complaint. The Respondent also indicated they would contact the Complainant with a view to resolving matters. The Complainant has not been withdrawn.

Background:

The Complainant who is a Romanian National was employed by the Respondent from the 5th January 2016 to 5th November 2016 as a Catering Assistant. He alleged he did not receive the National minimum wage, that the Respondent has taken unlawful deductions from his pay, that he did not receive his holiday pay/annual leave entitlements, that he did not receive his public holiday entitlements, and that he was unfairly dismissed.

The Complainant submitted that he worked on average 10 hours per day over a five or six-day week from the date of employment until his termination on 4th November 2016. He raised a complaint on 16 March 2017.

Summary of Complainant’s Case:

CA-00010291-001 Complaint seeking adjudication under section 24 of the National Minimum Wage Act, 2000

The Complainant maintained that from the 5th January 2016 to 14th May 2016 he worked 115 ten hour days and was only paid €5.45 per hour which amounted to a shortfall of €3.70 per hour; from 15th May 2015 to 11th June 2015 he worked 25 ten hour days he was only paid €6.36 per hour a short fall of €2.79 per hour; and from 12th June to 4th Novemebr 2015 he worked a total of 109 the hour days at €7.27 per hour, a short fall of €1.88 per hour. He submitted that he was therefore underpaid a total of €7001.70.

The Complainant has sought a statement from the Respondent to ascertain how his weekly wage as calculated and failed to receive same from the Respondent.

CA-00010291-003 Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991

The Complainant submitted that the Respondent unlawfully took deductions of €15 a day from his pay for taking a taxi to and from work, and taxis between shops. The Complainant maintained that he would always have paid for taxis at his own cost and that the €15 per day was taken without his consent.     

CA-00010291-005 Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlement

The Complainant maintained that he did not receive any annual leave entitlements from his start time from 5th January to 5th November 2015, a period of 10 months. He advised that he did take annual leave from 22 September to 16 October 2016 but he was unpaid for the 16-day period. He therefore was seeking payment for his annual leave entitlement.                                                                                            

CA-00010291-006 Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997 - Public Holiday Entitlement

The Complainant maintained that he did not receive his public holiday entitlements where he maintained he was due 5 days Public Holiday entitlement.                                                 

CA-00010291-007 Complaint seeking under Section 8 of the Unfair Dismissals Act, 1977  

The Complainant maintained that he was constructively dismissed due to the omissions of his employer to properly pay him despite his efforts to seek is proper payments he had no option but to leave his employment.

Summary of Respondent’s Case:

CA-00010291-001 Response to Complaint seeking adjudication under section 24 of the National Minimum Wage Act, 2000

The Respondent denied that the Complainant had not received his minimum wage. The Respondent submitted that the Complainant’s pay for a five-day week amounted to €9.68 per hour and for a six-day week amounted to €9.60 per hour. The Respondent did not submit payslips to support this position. 

CA-00010291-003 Response to Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991

The Respondent submitted that he would have taken from the Complainant’s wages between €75 and €90 per week for taxi costs to transport the Complainant to and from work. He advised that any transport between shops would not have been deducted. The Respondent was not in a position to provide evidence that he had the consent of the Complainant to deduct these payments.                                    

CA-00010291-005 Response to Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997-Annual Leave Entitlement

The Respondent did not provide information with regard to records of annual leave or paid annual leave provided to the Complainant.                                                                                   

CA-00010291-006 Response to Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997-- Public Holiday Entitlement

The Respondent did not provide any records with regard to the public holiday entitlements granted to, our paid to, the Complainant.                                                                                   

CA-00010291-007 Response to Complaint seeking under Section 8 of the Unfair Dismissals Act, 1977 The Respondent denied that it unfairly dismissed the Complainant. The Respondent maintained that the employment terminated on 12 November 2016 as the Complainant failed to turn up for work the following day and despite repeated requests to attend work he declined. The Respondent further submitted that the job was available and that the Complainant was welcome to return to work, and that the Complainant was advised of this by way of letter on 22 December 2016 but that he did not return to work.

The Respondent advised the Complainant by letter dated 22 December 2016 that the Complainant had been paid the statutory entitlements and provided a breakdown of payments to the Complainant in this letter.   The Respondent maintained the Complainant did not provide him with notice of his termination, and where the reason given for his failure to come to work was that the Complainant could not take instructions from a woman who was a supervisor in the shop. The Respondent indicated that he was in the process of resolving matters but that the Complainant did not return to work despite the Respondent’s correspondence of 22 December 2016.

Findings and Conclusions:

CA-00010291-001 Findings to Complaint seeking adjudication under section 24 of the National Minimum Wage Act, 2000

Section 14 of the National Minimum Wage Act, 2000 establishes the entitlement to ‘an hourly rate of pay not less than’ the national minimum wage. As the minimum wage prior from 1 January 2016 was €9.15 per hour, based on the submission made I find the case well founded and that the Complainant was underpaid by a total sum of €7,001.70.

CA-00010291-003 Findings to Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

• the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

• the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

• in the case of a deduction, the employee has given his prior consent in writing to it.The Respondent has acknowledged taking either €75 or €90 per week from the Complainant, but has failed to provide any evidence of where this was authorised in the Complainant’s contract of employment, or was taken by consent. I therefore find that an average of €82.50 was taken per week over a period of 40 weeks, and where a sum of €3,300 was unlawfully deducted from the Complainant’s pay over this period.                                                                                                                       Section 19(1)(a) of the Organisation Of Working Time Act 1997 provides that an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to 4 working weeks in a leave year in which he or she works at least 1,365 hours. As the Complainant has worked these hours I find he is entitled to 4 working weeks paid annual leave. He maintained that when he took his annual leave during 2016 he was not paid for same. On that basis, I find that he is entitled to 4 weeks annual leave based on a 50-hour working week at the minimum wage of €9.15 which amounts to €1,830.CA-00010291-006 Findings to Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997-Public Holiday Entitlement

1. Section 21 of the Organisation of Working Time Act provides for entitlements in respect of public holidays. I find that the Complainant, was entitled to 5 public holidays at €91.5 per day but was not paid these entitlements.
2.  
3. CA-00010291-005 Findings to Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlement
4.  
5.  

CA-00010291-007 Findings to Complaint seeking under Section 8 of the Unfair Dismissals Act, 1977

Section 36(2) of the National Minimum Wage Act, 2000 states that the Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act, 1977, except that it is not necessary forthe employee to have at least one year’s continuous service with the employer and that Act shall apply as if the Worker Protection (Regular Part-Time Employees) Act, 1991, were repealed in relation to the number of hours an employee is normally expected to work for the purposes of that Act) and those Acts, with the necessary modifications, shall apply accordingly.

Section 36 (3) of the Act states Where an employee alleges he or she has suffered an action prejudicial to the employee in contravention of subsection (1) and the employer, within 2 weeks of being so requested by the employee or the employee’s representative with the employee’s consent, does not restore the employee to conditions of employment he or she enjoyed immediately before suffering the alleged prejudicial action, the employer and the employee shall, for the purposes of section 24(1), be deemed not to be able to agree on the appropriate entitlement of the employee to pay in accordance with this Act, resulting in an alleged underpayment to the employee, and sections 24 to 32 [as amended], (except section 24(2)), with the necessary modifications, shall apply accordingly.

Based on the evidence provided I am satisfied that the Complainant had left his employment before progressing any formal resolution of the matter, and where the Respondent received a formal complaint from the Complainant dated 13th December 2016. The Respondent did respond formally some eight days later providing the Complainant with a breakdown of his earnings, also advised that his position remained open, and where the Respondent stated that he understood the Complainant’s resignation related to a different matter.

I am therefore satisfied that the Complainant has not demonstrated that, in accordance with S36(1) of the Act, the Respondent caused any action prejudicial to the Complainant, or where the Complainant had suffered as a result of any action by the Respondent in relation to the Complainant opposing the actions of the Respondent, or the Complainant in exercising a right under the Act was prejudiced.

Based on the evidence provided the Complainant formally raised his concern after failing to attend work, and where the Respondent responded to the Complainant, advised the Complainant his job was still available, and sought to address the concerns raised. I therefore do not find the Respondent acted in a way to provide the Complainant with no opportunity other than to leave his job. Whilst I acknowledge the matters were in dispute between the parties, the Respondent in his correspondence was seeking to resolve matters and to have the Complainant return to work. The Complainant therefore resigned before this process was completed.

Decision:

CA-00010291-001 Decision Regarding Complaint seeking adjudication under section 24 of the National Minimum Wage Act, 2000

Section 24 of the National Minimum Wage Act, 2000, as amended, requires that I make a decision in relation to a dispute in respect of the entitlements of an employee under section 41 of the Workplace Relations Act 2015. In making such a decision I may make a direction to the employer to pay to the employee an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with the Act in respect of the period to which the dispute relates, and reasonable expenses of the employee in connection with the dispute.

Based on the calculations provided by the Complainant and the lack of credible information provided by the Respondent, I direct that the Respondent pay the Complainant arrears of €7,001.70.

CA-00010291-003 Decision Regarding Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991

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.

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to a contravention under Section 5 of that Act.

As I have found the complaint is well founded as respects the unlawful deductions from the Complainant’s wages, I direct the Respondent to pay the Complainant compensation of €€3,300 after the making of any lawful deduction.

CA-00010291-005 Decision Regarding Complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlement

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 19 of that Act. As I have found the Complainant did not receive his 20 days annual leave entitlements I require the Respondent to pay the Complainant arrears of €1,830.

CA-00010291-006 Decision Regarding complaint seeking adjudication under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlement

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.

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 21 of that Act. As I have found that the Complainant did not receive his entitlements for 5 public holidays, I decide the complaint is well made and I require the employer to pay the Complainant arrears of €457.50 for his public holiday entitlements.

Finally, and in addition to the payment of arrears set out above, and in light of the multiple breaches under the Organisation of Working Time Act, in accordance with Section 27(3)(c) I require the Respondent to pay the Complainant compensation of €500 being just and equitable having regard to all of the circumstances

CA-00010291-007 Decision Regarding Complaint seeking under Section 8 of the Unfair Dismissals Act, 1977           

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

As I do not find this complaint is well founded I hereby decide the complaint of Unfair Dismissal fails.

Dated:   26th June 2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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