Complainant

Respondent

Anonymised Parties

An employee

A hotel

Representatives

Blazej Nowak

Jan Hayden, IBEC

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-00015105-001

16/10/2017

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

CA-00016216-001

06/12/2017

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

CA-00012484-001

12/07/2017

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

CA-00012484-002

12/07/2017

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

CA-00012484-003

12/07/2017

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

CA-00012484-004

12/07/2017

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

CA-00012484-005

12/07/2017

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

CA-00012484-006

12/07/2017

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

CA-00012484-007

12/07/2017

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

CA-00012484-008

12/07/2017

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

CA-00012484-009

12/07/2017

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

CA-00012484-010

12/07/2017

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

CA-00012484-011

12/07/2017

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

CA-00012484-012

12/07/2017

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

CA-00012484-013

12/07/2017

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

CA-00012484-014

12/07/2017

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

CA-00012484-015

12/07/2017

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

CA-00012484-016

12/07/2017

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

CA-00011256-001

09/05/2017

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

CA-00011256-002

09/05/2017

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

CA-00011256-003

09/05/2017

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

CA-00011256-004

09/05/2017

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

CA-00011256-005

09/05/2017

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

CA-00011256-006

09/05/2017

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

CA-00011256-007

09/05/2017

The Complainant in this case has been employed by the Respondent since 17th October 2004. Her job title is Food and Beverage Assistant in the Respondent’s hotel restaurant. Her current rate of pay is €10.09 per hour.

The Complainant has been on long term certified sick leave since 23rd January 2017 due to back pain. However, she did come back to work for one day in2017 (10th March).

The Complainant has a balance of 33.05 hours on her public holiday entitlements and a balance of 72.57 hours on her annual leave entitlements. The Complainant took New Year’s Day of in 2017 but no annual leave requests have been made by or on behalf of her to date in 2017.

Via four separate lodgements the file contains a total of 25 complaints.

On 9th May 2017 a complaint was received by the WRC, this complaint was in seven parts:

1.       CA – 00011256 – 001 – I did not receive my paid holiday/annual leave entitlement.

2.       CA – 00011256 – 002 - I did not receive my paid holiday /annual leave entitlement.

3.       CA – 00011256 – 003 – I did not receive my Public Holiday entitlements.

4.       CA – 00011256 – 004 – I did not receive my Public Holiday entitlements.

5.       CA – 00011256 – 005 – I did not receive my Public Holiday entitlements.

6.       CA – 00011256 – 006 – I am not given compensation for working on Sunday.

7.       CA – 00011256 – 007 – I did not receive my Public Holiday entitlements.

On 12th July 2017, another complaint was received by the WRC, this complaint was in sixteen parts:

1.       CA – 00012484 – 001 – I have not received my Public Holiday entitlements.

2.       CA – 00012484 – 002 – Statement of particulars of employment – Section 3,1, (a)

3.       CA – 00012484 – 003 – Statement of particulars of employment – Section 3,1, (b).

4.       CA – 00012484 – 004 – Statement of particulars of employment – Section 3,1, (c)

5.       CA – 00012484 – 005 – Statement of particulars of employment – Section 3,1, (d)

6.       CA – 00012484 – 006 – Statement of particulars of employment – Section 3, 1, (e)

7.       CA – 00012484 – 007 – Statement of particulars of employment – Section 3,1, (g).

8.       CA – 00012484 – 008 – Statement of particulars of employment – Section 3, 1, (ga).

9.       CA – 00012484 – 009 – Statement of particulars of employment – Section 3, 1, (h)

10.   CA – 00012484 – 010 – Statement of particulars of employment – Section 3,1, (i).

11.   CA – 00012484 – 011 – Statement of particulars of employment – Section 3, 1, (J).

12.   CA – 00012484 – 012 – Statement of particulars of employment – Section 3,1, (k)

13.   CA – 00012484 – 013 – Statement of particulars of employment – Section 3, 1, (l)

14.   CA – 00012484 – 014 – Statement of particulars of employment – Section 3,1,(m).

15.   CA – 00012484 – 015 – Statement of particulars of employment – Section 3,4

16.   CA – 00012484 – 016 – Statement of particulars of employment – Breach of section 3 – lack of information as prescribed by S.I. 49/1998.

On 16th October 2017, another complaint was received by the WRC, this was a single complaint in relation to entitlement to August 2017 Public Holiday – CA – 00015105 – 001.

On 6th December 2017 – referred under Section 23 of National Minimum Wage Act,2000 - CA-00016216-001.

In summary, we have 15 complaints under the Terms of Employment (Information) Act,1994, 9 complaints under Organisation of Working Time Act,1997 and one complaint under the National Minimum Wage Act,2000.

The Complainant’s representative went through the Complaint forms and verbally summarised each complaint subject.

1.       Breach of Terms of Employment (Information) Act, 1994 – 15 counts.

2.       Breach of Organisation of Working Time Act, 1997 – 9 counts.

3.       Breach of National Minimum Wage Act, 2000 – 1 count.

1.       The Respondent has complied with all the requirements of the Organisation of Working Time Act and the Complainant is in receipt of all her entitlements due to her.

2.       Regarding the breaches alleged under the Terms of Employment (Information) Act, the Complainant was provided with a contract of employment at the commencement of her employment. This contract has been mislaid by the Respondent. Once this matter came to the attention of the Respondent (on receipt of notification from the WRC of the within claims) a further copy of the Complainants contract was issued to her.

3.       The Complainant has been an employee of the Respondent since 2004 and has not raised the issue of her contract until she did so via the within claims.

4.       Accordingly, the Respondent contends that no detriment or loss was caused to the Complainant in any event. In this regard, the Respondent relies on the findings of the EAT in An Employer v An Employer TE79/2006, where it stated “The Tribunal is satisfied that the use of the word compensation in the subsection indicates the clear intention of the legislature that the subsection is not to be operated as a fine or penalty, and that circumstances justifying the award of compensation for loss must be shown, whether those circumstances might be categorised as constituting claims for special and /or general damages”.

5.       In support of this position, the Respondent also relies on the findings of the Employment Appeals Tribunal in An Employer v An Employee TE 248/2009 where it stated “The Tribunal is of the view that the legislation is to be approached on a basis to ensure compliance and not as an opportunity to extract an award…….in awarding compensation it is relevant to consider whether there was any loss”.

The Tribunal further stated that “In assessing the level of compensation the Tribunal must have regard to evidence of loss”. Consideration was also given in this case to the fact that the employee did not ask the Company for the statement of terms at any stage during employment but simply filed a claim before the Workplace Relations Commission following the expiry. In this instant case, the Complainant did not ask the company for her statement of terms at any stage however, it is the company position that these were not requested because she did in fact receive her Contract of Employment at the commencement of her employment.

6.       Two recent Labour Court decisions were highlighted:

Lake Regional Medical Limited v M. Stanchion, the appellant sought compensation on the basis that the contract of employment furnished was deficient in some details. The claimant in this case had been provided relevant information in writing at the commencement of her employment via an employee handbook. The breaches were ‘merely of a technical nature’. The Court cited the Determination - Irish Water v Patrick Hall TED 161 ‘where mere technical breaches of Section 3 of the 1994 Act occur “the dictates of fairness or equity could not justify an award of compensation”

7.       In the instant case, the Respondent asserts that the Claimant was provided with a contract of employment, but that even if that were not the case, or if the contract she was issued with at commencement was found to be deficient, she nonetheless was aware of all the terms and conditions of her employment, having been employed by the Respondent for in excess of 13 years.

8.       The Respondent submits that compensation cannot form redress in the instant claim, in circumstances where firstly the Complainant did receive full details of her terms and conditions of employment, via her contract of employment, induction training and the employee handbook. If, however, any breaches of the Act were to be identified, the same would be ‘merely technical’ per Irish Water v Patrick Hall TED161 and none such had a practical impact on the Complainant during her employment with the Respondent.

Conclusion:

Based on the foregoing arguments, the Respondent respectfully requests that the Adjudicator uphold its position in this matter and dismiss the claims.

Terms of Employment (Information) Act, 1994.

CA – 00012484 – 002 – Statement of particulars of employment – Section 3,1, (a)

CA – 00012484 – 003 – Statement of particulars of employment – Section 3,1, (b).

CA – 00012484 – 004 – Statement of particulars of employment – Section 3,1, (c)

CA – 00012484 – 005 – Statement of particulars of employment – Section 3,1, (d)

CA – 00012484 – 006 – Statement of particulars of employment – Section 3, 1, (e)

CA – 00012484 – 007 – Statement of particulars of employment – Section 3,1, (g).

CA – 00012484 – 008 – Statement of particulars of employment – Section 3, 1, (ga).

CA – 00012484 – 009 – Statement of particulars of employment – Section 3, 1, (h)

CA – 00012484 – 010 – Statement of particulars of employment – Section 3,1, (i).

CA – 00012484 – 011 – Statement of particulars of employment – Section 3, 1, (J).

CA – 00012484 – 012 – Statement of particulars of employment – Section 3,1, (k)

CA – 00012484 – 013 – Statement of particulars of employment – Section 3, 1, (l)

CA – 00012484 – 014 – Statement of particulars of employment – Section 3,1, (m).

CA – 00012484 – 015 – Statement of particulars of employment – Section 3,4

CA – 00012484 – 016 – Statement of particulars of employment – Breach of section 3 – lack of information as prescribed by S.I. 49/1998.

By issuing a contract of employment containing the information outlined in the Act to the Complainant the Respondent has addressed 14 of these complaints.

In relation to CA-00012484 – 016 I see that the Respondent has outlined in the Employee Handbook a statement to the effect that all breaks as prescribed in sections 11,12 and 13 of the Organisation of Working Time Act 1997 will be granted in compliance with the Act, I am satisfied that this will be the case.

Annual Leave and Public Holidays.

CA – 00011256 – 001 – I did not receive my paid holiday/annual leave entitlement.

CA – 00011256 – 002 - I did not receive my paid holiday /annual leave entitlement.

CA – 00011256 – 003 – I did not receive my Public Holiday entitlements.

CA – 00011256 – 004 – I did not receive my Public Holiday entitlements.

CA – 00011256 – 005 – I did not receive my Public Holiday entitlements.

CA – 00011256 – 006 – I am not given compensation for working on Sunday.

CA – 00011256 – 007 – I did not receive my Public Holiday entitlements.

CA – 00012484 – 001 – I have not received my Public Holiday entitlements.

Annual Leave.

Section 19 (2) of the Organisation of Working Time Act, 1997 reads as follows:

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on the day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

The Respondent, as per submission, states that at the time of hearing the Complainant had accrued a total of 72.57 hours of annual leave. On her return to work the Respondent is legally obliged to ensure she receives this leave and should agree this with the Complainant on her return. Payment in lieu of annual leave is legally not an option to either party while the Complainant remains in the employment of the Respondent.

Public Holidays.

Ref: Labour Court cases: -

Thermo King v Pat Kenny (2006) DWT 0611

HSE West v Alison Meehan (2008) DWT 0884

Leitrim County Council v Martin (2009) DWT 0914

In the above cases the Labour Court held that under Section 21(1) unless otherwise stated in the contract of employment, an employer was free to provide an employee with a day’s paid leave on the public holiday regardless whether the employee was, or was not, sick on that day. Therefore, an employee who is sick on a Public Holiday receives their Public Holiday entitlement as normal at that time.

Sunday Work – Organisation of Working Time Act, 1997.       CA- 00011256 - 006

Section 14 (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely –

(a)    by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b)    by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c)     by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d)    by a combination of two or more of the means referred to in the preceding paragraphs.

It was stated by the Respondent’s representative that the current rate of pay is a composite rate that covers Sunday working, when asked to break this down it would appear that the current rate is based on Minimum wage plus 5%. The Respondent’s Human Resources Manager who was present at the hearing clearly stated that this 5% had been increased to 10% since 1st January 2018. There is no breach of Section 14 of the Organisation of Working Time Act, 1997.

National Minimum Wage Act,2000.                       CA-00016216-001.

This complaint referred under Section 23 of the National Minimum Wage Act,2000 was not heard. The Respondent representative claimed she was not notified of this complaint. I have requested that this complaint be the subject of a re-scheduled hearing in the near future.

Terms of Employment (Information) Act,1994.

Under Section 7 (2) (a) of this Act I declare that complaint was well found.

Section 7 (2) (d) – Having considered the facts of the case and the arguments presented by the Respondent’s representative I am ordering the Respondent to pay compensation to the Complainant of one week’s pay. (2016 P60 total divided by 52).

Organisation of Working Time Act,1997.

My consideration of this aspect of the complaint is outlined above and is in accordance with Determinations from the Labour Court on this subject.

It was stated at hearing that the Complainant has an accrued balance of 33.05 hours in respect of Public Holidays during her period of absence. At a current rate of pay of €10.09 per hour this represents a total of €333.47. This amount should be paid to the Complainant forthwith.

Sunday Work – Organisation of Working Time Act, 1997.       CA- 00011256 – 006.

The Complaint fails.

National Minimum Wage Act,2000.                       CA-00016216-001.

Complaint should be re-scheduled for a separate hearing.

Annual Leave / Public Holidays during periods of absence.