Complainant

Respondent

Anonymised Parties

A Baker/Driver

A Bakery

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00015852-001

17/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015852-003

17/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015852-004

17/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015852-005

17/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00015852-006

17/11/2017

The complainant began his employment with the respondent on October 15th 2014, initially on a part-time basis. He became a full-time employee on August 10th, 2016.

He was paid €350.00 for a forty-five hour week.

His employment ended on November 11th 2017.

The complainant made five complaints.

These were, CA-00015852-001, related to the National Minimum Wage Act, CA-00015852-003, re annual leave, CA-00015852-004, re public holidays, CA-00015852-005 re the failure to give him breaks and, finally, CA-00015852-006 that he did not get a statement under the Terms of Employment (Information) Act.

Complaint CA-00015852-003 was withdrawn at the hearing.

The complainant started work at 3.30 each morning in the bakery, slicing and packing the bread for delivery later in the day. This took three to four hours. He then commenced deliveries which would take several hours and he would finish around midday.

His wage slips did not represent an accurate picture of his working week, showing his weekly hours as fifteen and his pay as €137.00. In fact, he was paid €350 in cash.

In respect of the complaint under the National Minimum Wage Act, the complainant wrote to the respondent on January 17th, 2018 seeking a statement of his average wage in compliance with the Act but received no reply.

On the basis of a forty-five hour week his actual hourly rate was €7.80, at a time when the minimum wage was initially €9.15 per hour and subsequently €9.25. This places him at a total loss of €4,140.00.

He received no additional payment for public holidays and puts his claim for the period between August 10th 2016 and November 11th 2017 at €692.

He never received a statement in compliance with the Terms of Employment (Information) Act, 1994

Regarding the hours worked the respondent identifies an inconsistency in the complainant’s submission.

On the one hand, he claims to work forty-five hours but states that he works eight hour shifts (without a break). Therefore, this places his maximum working week at forty hours.

The respondent disputes the complainant’s claim about the total number of hours worked.

In direct evidence the owner of the company stated that he was very familiar with the delivery routes and estimated that on at least three days the complainant should be finished by about 10.30am. However, the company does not keep records of hours worked by its employees.

In fact, all staff are afforded breaks and there is a café beside the bakery in which the employees can do so.

The complainant is also facilitated with breaks to attend to his religious observance.

Regarding the complaint under the National Minimum Wage Act the complainant has failed to comply with Section 24 (2) (a) in that he did not request a Statement of Average Hourly Rate as required by the Act. (The request which was made occurred after the submission of the complaint to the WRC.)

The Act states clearly that a complaint cannot be considered by the then Right Commissioner unless this section has been complied with.

Therefore, that complaint is not within jurisdiction.

Regarding the complaint under the Terms of Employment (Information) Act it is accepted that the complainant did not receive the statutory statement but the complaint was not submitted within six months of the breach, which occurs two months after the commencement of the employment, which would have been mid-December 2014.

Regarding the complaint in respect of public holidays the respondent business does not open on public holidays and no deduction is made in the weekly wage for a week in which a public holiday falls.

Therefore, this complaint has no foundation.

The evidence in this case was both contradictory, but even more so, it was quite inadequate.

On the one hand the complainant was unconvincing in his account of his daily itinerary. His evidence was uncertain about the itinerary and the length of time taken between various delivery points.

On the other hand, the failure of the employer to maintain records is bad enough as a matter of compliance with the Organisation of Working Time Act but he did not appear to even know, other than on the basis of estimating it, when the complainant actually finished his day’s work.

On some days (Tuesday, Thursday and Saturday) it was suggested that the complainant could finish by 10.30 am, but neither party could provide convincing evidence either way.

I accept the respondent’s submission in respect of the complaint under the National Minimum Wage Act and on the basis of the failure of the complainant to comply with Section 24 (2) (a) I may not consider it further.

The complaint in respect of public holidays is without merit. The complainant received a day’s pay and a day off which meets the requirements of the Act and could not rebut the respondent’s submission in this regard.

The complaint in respect of annual leave was withdrawn.

That leaves the question of breaks.

The respondent’s somewhat anarchic management of his employees’ working arrangements leaves a great deal to be desired and I accept the complainant’s case that he did not get adequate breaks. I uphold this complaint.

Section 25 of the Organisation of Working Time act requires an employer to keep ‘such records ..as will show whether the provisions of this Act are being complied with’.

It continues

In this case the respondent has failed to discharge the onus of proving that the provision in relation to breaks was complied with.

Finally, in respect of the complaint under the Terms of Employment (Information) Act the issue that arises is when the breach of the Act occurs.

An employer is required to give the employee the statutory statement within two months of the commencement of employment and the failure to do so constitutes the breach of the Act.

The question that arises is whether an employer who fails to provide the statutory statement under the Act is only in breach of the Act only on that one day, following the expiration of the two-month period.

The question here is whether section 41(6) of the Workplace Relations Act has restricted the limitation period for breaches of section 3 of the Terms of Employment (Information) Act. 

Section 41(6) of the Workplace Relations Act provides:

 “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 3(1) of the Terms of Employment (Information) Act provides 

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment”.

In this case, the respondent has accepted that a statement was not provided to the complainant.

The essence of the respondent’s submission is that a contravention of section 3(1) occurs when the two-month period expires and no statement is provided, and only on that day.

This would mean that the contravention is the first day after the initial two-month period of employment, where no statement is provided.

The argument appears to also submit that there is no subsisting contravention on the second day after the end of the two-month period or on later days. The respondent argument in this, and similar cases is that the complaint must be referred to the Workplace Relations Commission within six months of this single day of contravention.

Section 3(5) of the Terms of Employment (Information) Act provides for the following continuing obligation:

 “A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.”

Section 7 of the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, reads:

“(1) An employee shall not be entitled to present a complaint under section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3, 4, 5 or 6, if the employer concerned has —

(a) complied with a direction under section 6A given in relation to the contravention before, on or after the commencement of section 8 of the Workplace Relations Act 2015, or

(b) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired. 

(2) A decision of an adjudication officer under section 41of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5 or 6 shall do one or more of the following, namely —

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5 or 6, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer, 

(d) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act.

Section 7 covers contraventions of sections 3, 4, 5 and 6 that occur during the employment relationship.

Subsection 1 addresses situations where a WRC inspector or adjudicator have given directions regarding compliance with the Act, to which the employer has subsequently complied with. Subsection 2(b) allows an adjudication officer to confirm particulars of a statement, or to alter or add to the statement.

Subsection 2(c) allows the adjudicator to require an employer to provide the employee with a statement. Taking the narrow interpretation, that the breach only occurs on one day, that after the expiry of two months from the commencement of employment, this multiplicity of interventions in respect of a breach of section 3 could only be exercised in the limitation period following the single day of contravention at the end of the initial two-month period of employment.

The Terms of Employment (Information) Act transposes Directive 91/533/EC, the ‘Written Statement’ Directive.

It recites Article 117 of the Treaty and point 9 of the Community Charter of Fundamental Social Rights of Workers.

Article 2 provides that an employer shall notify the employee of certain essential aspects of the employment relationship.

Article 3 provides for the means of information and that the information stated in Article 2 may be given to the employee in certain forms, for example a written contract or letter of engagement. Article 3 refers to this information being provided not later than two months from the commencement of employment.

Article 8 requires member states to introduce measures to allow employees to pursue claims via a judicial process.

In Kampelmann and Others v Landschaftsverband Westfalen-Lippe(C-253/96 to C-256/96), the Court of Justice of the European Union held that Article 2 is directly effective as against the State and against bodies and authorities under the control of the State.

If the respondent is correct, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, has curtailed the obligations provided in Article 2 of the Directive to a contravention arising on the first day after the end of the two-month period.

In Seclusion Properties Ltd v O’Donovan (DWT14114), the Labour Court held as follows:

“It is clear that the obligation on domestic courts and tribunals to interpret national law in conformity with a Directive applies ‘as far as possible’. That is to say, it cannot serve as a basis for an interpretation of national law contra legem. As was pointed out by the CJEU in Dominguez v Centre Informatique du Centre Ouest Atlantique, a conforming interpretation can only be arrived at by taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the Directive in question is fully effective and that an outcome consistent with the objective pursued by the Directive is achieved.”

Section 3(1) of the Terms of Employment (Information) Act is clear that an employer shall provide the employee with a statement within two months of the start of the employment relationship.

Where this is not provided, the employee has recourse to the Workplace Relations Commission where section 7(2) enables the adjudication officer to take steps to amend or add to a statement, to require a statement be provided or to award financial redress.

The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement. If the respondent’s submission was correct, the Oireachtas would have clearly stipulated that the interventions permitted by section 7(2) may only be made for a contravention arising on a single day after the end of the initial two-month period of employment.

If the respondent’s submission is correct, section 7(1) is superfluous.

This provision prevents an adjudication officer from hearing a complaint where the employer has complied with a previous direction or determination. This section would not be necessary if there could only be one contravention of section 3 arising on a single day. Instead, section 7(1) presents the contravention as a subsisting breach and prevents an employee from submitting a fresh complaint where the employer has complied with the outcome of a previous complaint.

While the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, is clear, in my view, that a breach of section 3 is a subsisting breach, this conclusion is fortified by the application of EU law.

First, the Terms of Employment (Information) Act, as amended, does not provide that the only date of contravention is the day after the end of the initial two-month period.

Applying a conforming interpretation to section 3 does not, therefore, require an impermissible contra legem interpretation of the section.

Article 2 of the Directive requires that a statement be provided by the employer to the employee and does not limit this requirement to any time period within the employment relationship. Reading section 3(1) of the Terms of Employment (Information) Act in conformity with Article 2 of the Directive leads to the conclusion that the obligation to provide the statement subsists throughout the employment relationship.

Article 8 of the Directive requires that employees have recourse where there is a breach and this requires section 41 of the Workplace Relations Act to be read as referring to the failure to provide a statement as a subsisting breach.

For these reasons, the Terms of Employment (Information) Act, as amended by the Workplace Relations Act, provides that a contravention of section 3 occurs where, after the expiry of the initial two-month period of employment, the employee has not been provided with a statement.

The contravention of section 3 is a subsisting contravention.

If no statement is provided at any stage during the employment relationship and this comes to an end, the employee may refer a complaint within six months of the last day of contravention, i.e. the last day of their employment.

In summary, CA-00015852-001 is not within jurisdiction as a result of the failure of the complainant to comply with Section 24 (2) (a) of the National Minimum Wage Act.

CA-00015852-003 was withdrawn at the hearing.

CA-00015852-004, regarding public holidays is not upheld.

CA-00015852-005, the failure to give him breaks is upheld and I make my award below,

CA-00015852-006 that he did not get a statement under the Terms of Employment (Information) Act 1994 is upheld and I make my award below.

I do not uphold complaints CA-00015852-001, CA-00015852-003, CA-00015852-004,

I uphold CA-00015852-005 and award the complainant €1000.00.

I uphold complaint CA-00015852-006 and award the complainant four weeks’ pay in the amount of €1,400.00

I order the respondent to establish and maintain all records required by the Organisation of Working Time Act 1997 in respect of leave, breaks and working time.