Complainant

Respondent

Anonymised Parties

A former employee

A recruitment agency

Representatives

Self

Company Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00017223-002

01/02/2018

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

CA-00017223-003

01/02/2018

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

CA-00017223-004

01/02/2018

The Complainant commenced employment with the Respondent on 17/02/2014 and left on 22/09/2017. At the time of her leaving employment the Complainant alleges she was owed a commission payment for the months of August 2017 and September 2017, has outstanding holiday entitlement from 2015 for which she was not paid and finally a third complaint that she had never been issued with a contract by her employer, the Respondent.

The Complainant lodged three complaints with the Workplace Relations Commission (WRC) on 01/02/2018, these complaints are as follows:

Specific Complaint – CA-00017223 –002.

Outstanding commission payment for two months, August and September 2017. Amount of commission not paid is €2,056.20 for August and €1,517.06 for September.

Specific Complaint – CA-00017223 – 003.

“I was entitled for 16.6 days’ annual leave in 2014, I took 6 days in 2016. I thought the remaining 10 days I will carry to 2015. In 2015 I took 10+20 days’ annual leave, but at the end of 2015 my employer didn’t pay for those 10 days. I never received a written Contract or Terms of Employment stating the annual leave terms”.

Specific Complaint – CA- 00017223- 004.

“I never received a Contract of Employment or T&C’s of employment”.

The Respondent made an oral submission and stated the following:

Specific Complaint – CA-00017223 –002 – all commission due was paid to the Complainant.

Specific Complaint – CA-00017223 – 003 – the Complainant received her holiday entitlement and it is company policy not to permit a carryover from one year to the next.

Specific Complaint – CA- 00017223- 004 – full details of the Terms and Conditions were explained to the Complainant.

There is not an awful lot that can be said in relation to these complaints. Legislation dictates what any employee is entitled to:

Specific Complaint – CA-00017223 –002     –       Payment of Wages Act, 1991.

During the hearing it was stated by the Complainant that an amount of €3,573.26 was due to her for commission for the months of August and September 2017. When checking this out at the hearing it was discovered that the outstanding amounts were due from June and July 2017, the figures provided by the Respondent’s Accountant were €634.40 for June and €582.73 for July, a total of €1,217.13.

Specific Complaint – CA-00017223 – 003       -     Organisation of Working Time Act, 1997.

This complaint relates to holiday entitlement accrued during 2014 and the outstanding balance of which was taken in 2015. The Complainant alleges that she did not receive payment for 10 days that she carried over from 2014 and took the days in 2015.

Section 27 of the Organisation of Working Time Act, 1997 addresses the subject of presenting a case to a Rights Commissioner. The Workplace Relations Act 2015 provides that since the 01/10/2015 complaints are presented to an Adjudication Officer of the WRC.

Section 27 (4) clearly states:

‘A rights Commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates’.

In this instant case the contravention took place in 2014/2015 and is therefore out of time. For this reason, I have no alternative but to find that this part of the complaint is not well founded and therefore fails.

Specific Complaint – CA- 00017223- 004   - Terms of Employment (Information) Act, 1994.

Section 3 of this Act reads as follows:

3. (1) 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, that is to say –

a)      the full names of the employer and employee,

b)      the address of the employer in the State or, where appropriate, the address of the principle place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the lengths of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms and conditions relating to paid leave (other than paid sick leave),

k)       any terms and conditions relating to –

                                                I.            incapacity for work due to sickness or injury and paid sick leave, and

                                              II.            pensions and pension schemes

l)        the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method of determining such periods of notice,

m)    a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

Section 3 (4) states: ‘A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer’.

Section 7 (2) states: ‘A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

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

       (d) order the employer to pay to the employee compensation of such amount (if any) as is just     and equitable having regard to all 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,1977.

For the breach of this legislation I am ordering the Respondent to pay the Complainant an amount equal to two weeks’ pay i.e. €1,057.99.

Specific Complaint – CA-00017223 –002     –       Payment of Wages Act, 1991.

The Complainant is due €1,217.13.

Specific Complaint – CA-00017223 – 003       -     Organisation of Working Time Act, 1997.

The complaint fails.

Specific Complaint – CA- 00017223- 004   - Terms of Employment (Information) Act, 1994.

The Complainant is due compensation of €1,057.99.

The total amount due to the Complainant is €2,275.12 and this amount should be paid to the Complainant within 42 days from the date of this Decision.

Payment of Wages Act, 1991 – Organisation of Working Time Act, 1997 – Terms of Employment (Information) Act,1994.