ADJ-00015042

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00015042

Parties:

	Complainant	Respondent
Anonymised Parties	A Store Manager	A Store

Representatives

Appeared In person

No Appearance

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00019599-001	05/06/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00019599-003	05/06/2018

Date of Adjudication Hearing: 20/09/2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 7 of the Terms of Employment (Information) Act, 1994 and Section 27 of the Organisation of Working Time Act, 1997,

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.

Background:

The Complainant worked as a Store Manager for a period of 23 weeks over 2017 and 2018. The Respondent, who did not attend the hearing operated out of two separate store premises in Cork and Limerick.

The Complainant lodged a claim before the WRC on June 5,2018. The Respondent did not engage with the claim and did not attend the hearing in September 2018.

Instead, the WRC received a short email from the Respondent sometime after the hearing had commenced indicating that the business was closed.

Summary of the Complainants case:

The Complainant is a British National who commenced work as a Store Manager at the Respondent shop following a period of unemployment. He worked a 39-hour week in return for a nett payment of €500(€125 gross per day). The Respondent operated another shop in Limerick.

The Complainant submitted that he had entered a parallel Business arrangement with the Respondent which equally stood unresolved and was currently being litigated.

CA -00019599-001 Terms of Employment Complaint:

The Complainant submitted that he had sought a written statement of his terms of employment from the outset of his employment. He received many reasons for not receiving this document, largely related to the Respondent seeking Human Resource input. The Complainant confirmed that he had extensive experience in the retail trade and saw the written terms as an essential basis for his employment.

Eventually he drew up his own version and submitted it to the Respondent on 16 January 2018. This remained unsigned during employment. The Complainant presented a copy to the hearing. The Complainant contended that the Respondent had not fulfilled his obligations by not providing him with written terms of employment.

CA-00019599-003 Annual Leave / Pension

The Complainant submitted that his annual leave was agreed at 20 days per annum. In addition, he was to receive a monthly payment of €200 per month for his personal pension. The Complainant submitted 3 pay slips, P45 and P60 to support his case.

He outlined that he did not take any annual leave during his employment. He received payment for any public holidays worked.

Summary of Respondent’s Case:

On 13 August 2018, the Respondent emailed the WRC and indicated that this was the first occasion that he heard of the claims. He stated that the complainant had resigned, giving one weeks’ notice to go to other employment. He confirmed that the business had ceased trading.

He indicated that he was prepared to secure a legal representative to attend the hearing. He requested an adjournment of the hearing until December “to allow to see can a resolution be resolved”

The Respondent sought that all future communication would be by email but The WRC was not able to confirm this and sought an update on a contact address for the business. There was no further contact before the hearing and the Respondent did not attend the hearing, nor did the business make any submissions in the case.

The Respondent then sent an email to the WRC at 11.39 hrs on the morning of the hearing which was brought to my attention post hearing . He submitted that the business had closed and he had cause to attend a medical appointment during the day before the hearing. There was no testamentary proof of this and no further contact or defence of the claims followed before this decision was completed.

CA-00019599-001 Terms of Employment

There was no appearance by or on behalf of the Respondent at Hearing.

CA-00019599-003 Annual Leave /Pension

There was no appearance by or on behalf of the Respondent at Hearing.

Findings and Conclusions:

I have considered both claims before me. It would have assisted if the Respondent had attended at hearing. The unvalidated closed status of the business does not disturb the obligations of the Respondent in this case. I permitted a waiting period before commencement of the hearing to facilitate a late arrival. The Respondent did not make any contact with the WRC after the hearing date. I have not received any reason for his nonattendance on the hearing day. I have, therefore based my findings on the complainants uncontested evidence.

CA -00019599-001 Terms of Employment Act

Section 3(1) of the Act requires a statement of written terms of employment, signed by the employer to be given to an employee not later than 2 months after the commencement of an employee’s employment.

I am satisfied that based on the uncontested evidence of the complainant that this document was not in existence during his employment. This constitutes a continuous breach of Section 3(1) of the Act. I find the complaint to be well founded.

CA-00019599-003 Annual Leave and Pension

I explained to the complainant that I did not have jurisdiction to address a complaint regarding pension payments and my sole jurisdiction surrounded his claim for annual leave on cessation of employment.

I did not have the benefit of records maintained by the Respondent in the case. I have therefore made my findings on the complainants uncontested oral and documentary evidence.

Section 23 of the Act outlines what should occur in relation to loss of annual leave on termination of employment. I accept that the complainant was not afforded annual leave during his employment or the point of termination.

I find that the claim is well founded and I find that the complainant is owed 9.5 days annual leave untaken on the conclusion of his employment. I also find the circumstances of the case warrant a consideration of compensation.

DECISION:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00019599-001

Section 7 of the Terms of Employment (Information) Act, 1994 a requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the claim to be well founded and I award the maximum compensation permitted to me for the continuous breach of Section 3(1) of the Act. I order the Respondent to pay the Complainant compensation of €2,500.

CA -00019599-003

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to the complaint in accordance with Section 23 of the Act.

I have found the claim well founded and I order the Respondent to pay the complainant €1,187.50 in cesser pay. In addition, I order the Respondent to pay the complainant €1,000 as compensation for lack of records in accordance with Section 25 of the Act.

This amounts to a cumulative compensation award of €3,500 and €1,187.50 in cesser pay.

Dated: October 12th 2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Statement of Terms of Employment, Annual Leave.