Complainant

Respondent

Anonymised Parties

Manager

Pizza Retailer

Representatives

Thomas Murtagh

Respondent did not attend.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00017195-001

31/01/2018

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

CA-00017195-002

31/01/2018

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

CA-00017195-003

31/01/2018

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

CA-00017195-004

31/01/2018

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

CA-00017195-005

31/01/2018

CA 00017195-001, CA 00017195-002,CA 00017195-003,CA 00017195-004,CA-00017195-005.

The complainant commenced employment with the respondent on 5 August 2005 as a manager.

He states that he was unfairly dismissed by the respondent on 26 January 2018, that he did not receive his paid holiday entitlements nor compensation for working on Sundays.

His gross salary is €750 per week.

He submitted the above 5 complaints to the WRC on 31/1/2018.

CA-00017195-001

The complainant worked with the respondent for 10 years. His duties included customer service, taking orders, financial returns, ordering goods, wages and lodgements and hiring staff.

The respondent advised the complainant in September 2017 that he had no further need for him. He also advised him that the complainant would not be able to prove that he had worked for him. The complainant continued in his role. At the end of December 2017, the respondent advised the complainant that he would have to leave. The complainant became stressed, attended his doctor, and was declared medically unfit for 2 weeks. He returned to the shop on 18 January 2018. The respondent told him to leave as there was no job for him.

The respondent had never advised the complainant of any concerns with his work, nor had ever activated a disciplinary process against him. The complainant believes that the respondent chose to dismiss him as he had previously told the complainant that if he wished to continue in his employment he would have to take a reduction in his wages and that he could get plenty of people to do the job for half his salary.

The respondent paid the complainant in cash, never issued pay slips despite repeated requests for same, deducted tax on the basis of a fictitious wage and as a result withheld money from Revenue. The complainant visited the O’ Connell St Revenue office in 2017 to report on the respondent’s underpayment of tax; they advised that it was the respondent’s job to deduct tax.

The latest official record of wages paid and tax deducted is his P60 from 2015. This records Total Pay as €17,680 and a zero-tax deduction. His USC contributions amounted to €382.

The complainant took up new employment on 28 January 2018, earning €330-350 a week.

He asks that his complaint of unfair dismissal be upheld and that he receive redress for same.

CA -00017195-002.

The respondent did not provide the complainant with a statement of his terms and conditions of employment.

CA-00017195-003.

The complainant did not receive any paid leave entitlement during his employment.

CA-0017195-004.

The complainant did not receive any compensation for working on Sunday.

CA -0017195-005

The complainant did not receive his public holidays entitlements.

CA- 00017195-001, 002,003, 004, 005

The respondent was notified of details of the hearing. The respondent did not attend. He emailed the WRC hours after the hearing to state that he had to attend a medical check-up in England; he submitted a one way plane ticket for the previous day, 1 July, but no documents to support the medical check-up – time, whereabouts etc.

The respondent did not furnish any written evidenced concerning the complaints.

CA-00017195-001.

The complainant gave evidence in a credible manner of the respondent’s intimidatory behaviour. Based on the uncontested evidence of the complainant, and in the absence of any evidence indicating that a fair process culminated in the dismissal, I find that he was unfairly dismissed. Section 7 of the Unfair Dismissals (Amendment) Act, 1993 states that “Where the dismissal of an employee is an unfair dismissal and a term or condition of the contract of employment concerned contravened any provision of or made under the Income Tax Acts or the Social Welfare Acts, 1981 to 1993, the employee shall, notwithstanding the contravention, be entitled to redress under this Act, in respect of the dismissal.”

His loss from 26 January to 2 July less his earnings of €350 a week from 28 January to 2 July amounts to €8,950.

CA -00017195-002.

The complainant did not receive a statement of his terms and conditions of employment.

The matter of whether or not 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 was addressed in ADJ 9820 in the context of decided case law and Directive 91/533/EC, the ‘Written Statement’ Directive’. The adjudication officer noted that 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 adjudication officer concluded that

“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. 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”.

I find the complaint to be well founded. In accordance with section 7(d) of the Act, I order the employer to pay the complainant the sum of €2250 as a result of this breach of his statutory rights.

CA-00017195-003.

On the basis of the uncontested evidence I find that the complainant did not receive his statutory entitlements to leave as set out in section 19 of the Act

Referable period.

The complaint was submitted on 31/1/2018 which is the second half of the 2017-18 leave year. The Labour Court in DWT 0963 stated that

“The only leave year which is cognisable for the purposes of determining if an employee received his or her statutory entitlements is that prescribed by the Act itself. That is to say a leave year starting on the 1st of April and ending on the 31st of March the following year”

Section 23 (1) of the Act obliges the employer to pay compensation for the loss of the leave in the 2017-18 leave year in accordance with section 19 (1) of the Act which provides that in a leave year where the employee works 1,365 hours, then he/she is entitled to 4 weeks paid leave payable at the normal weekly rate. The complainant submitted a medical cert for the period 18 December to 2 January. He met the threshold of 1365 hours necessary for the 4 weeks’ pay.

On the basis of the uncontested evidence, I find that the respondent has breached the complainant’s statutory entitlement to paid leave. I decide that the respondent should pay the complainant €3000 (4 weeks salary) in respect of his economic loss and an additional €2,250 (3 weeks salary) in respect of the breaches of his statutory rights.

CA-0017195-004.

Sunday work. Section 14 of the Act states “(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. “

On the basis of the uncontested evidence, I accept that there was no Sunday premium paid and I award the Complainant €1000 in respect of this breach.

CA -0017195-005

2017-18 leave year. Section 21 governs the complainant’s entitlement to paid public holidays. Entitlement in respect of public holidays – Section 21 States “(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely— (a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day’s pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom. “

Eight public holidays fell between 1/4/17 and 2/1/2018. I find on the basis of the uncontested evidence that the complainant worked on public holidays and that he is owed 8 days’ payment for the loss of public holiday payments. The sum owed is €150 x 8 =€1200.

CA-00017195-001

I uphold the complaint of unfair dismissal. I decide that the respondent should pay the complainant the sum of €8950 because of this breach.

CA 00017195-002,

I find the complaint to be well founded. In accordance with section 7(d) of the Act, I order the employer to pay the complainant the sum of €2250 as a result of this breach of his statutory rights.

CA 00017195-003,

I find this complaint to be well founded. I decide that the respondent should pay the complainant €3000 (4 weeks salary) in respect of his economic loss and an additional €2,250 (3 weeks salary) in respect of the breach of this statutory right.

CA 00017195-004,

I uphold this complaint of a breach of section 14 of the Act. I require the respondent to pay the Complainant the sum of €1000 in respect of this breach.

CA-00017195-005.

I uphold this complaint that the respondent has breached 21 of the Act. I have decided that the respondent should pay the complainant €1200 due to the economic loss.

Summary dismissal; Non-payment of Holiday, public holidays, Sunday working entitlements.