ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00008267

Parties: 

Complaints:

Date of Adjudication Hearing:  22nd February 2018 and 06/06/2018

Workplace Relations Commission Adjudication Officer:  Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and 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 was employed from 2nd September 2015 until the employment was terminated on 3rd February 2017. The Complainant was paid £10.50 an hour which was reduced to £9.50 an hour with effect from 9th January 2017. She worked 42 hours a week. The Complainant referred complaints to the Workplace Relations Commission on 26th April 2017 alleging breaches of the Terms of Employment (Information) Act, 1994 – unlawful deductions from wages under the Payment of Wages Act, 1991 – complaints under the Organisation of Working Time Act, 1997 – 2015 and a complaint that she was unfairly dismissed.

A Hearing was scheduled for 22nd February 2018 at which a named Representative of the Respondent attended but requested an adjournment and following discussion this was agreed. A further Hearing was scheduled for 6th June 2018 but the Respondent did not attend the scheduled Hearing on that date.

SUMMARY OF COMPLAINANT’S POSITION

Terms of Employment (Information) Act, 1994. The Complainant asserted she had not been provided with a written statement of her Terms and Conditions of Employment in breach of Section 3 of the Act. The Complainant stated that her wages were reduced from £10.50 an hour to £9.50 an hour with effect from 9th January 2017 and she was not informed in writing of this change in breach of Section 5 of the Act.

Payment of Wages Act, 1991. The Complainant stated that she was dismissed by the Respondent on 3rd February 2017 and she was not paid her minimum notice in accordance with the Minimum Notice and Terms of Employment Act, 1973.

Organisation of Working Time Act, 1997 – 2015. The Complainant is claiming that she worked ¾ Sundays each month and that she was never paid a Sunday Premium in breach of Section 14 of the Act.

She stated she worked 4/5 days a week and she did confirm at the Hearing that she had been paid 11 hours annual leave as per a payslip that was provided to the Hearing. She is claiming payment of her annual leave entitlements for the 2016/2017 annual leave year.

The Complainant stated that she worked the following Public Holidays but was not compensated by the Employer in breach of Section 21 of the Act – 31st October 2016 – 26th December 2016 and 27th December 2016 and 2nd January 2017.

Unfair Dismissals Act, 1977 – 2015. The Complainant stated she was called to a meeting with her Employer on 9th January 2017.She attempted to give her Employer her medical certificates she had from her GP for the Previous two weeks but the Respondent refused to accept them. She was informed that she was unreliable in her work, that she was being demoted immediately and that her pay was to reduce from £10.50 an hour to £9.50 an hour. She had a further meeting with her Employer on 19th January 2017 at which she was informed that she wasn’t liked and that she treated other unnamed staff badly. The Complainant stated she attended a general staff meeting on 26th January 2017 where the staff were informed that a new named Manager commenced work on 1st February 2017, to replace the Complainant as Manager. She was called to a meeting on 3rd February 2017 at which she was informed she was late for her shifts and of claiming for hours she did not work. No evidence was produced by the Respondence to support any of this. She was informed of her dismissal and she was requested to return her keys. She was not afforded a right of appeal and the Respondent did not communicate the decision and the reasons for her dismissal in writing to her. She stated she was given a cheque for £193.00 the following week with £73.00 cash.

SUMMARY OF RESPONDENTS POSITION

The Respondent did not attend the scheduled Hearing.

FINDINGS AND CONCLUSIONS

On the basis of the evidence and the uncontested evidence of the Complainant I find as follows –

These complaint was lodged with the WRC on 26th April 2017, therefore in accordance with Section 41 (6) of the Workplace Relations Act, 2015 the period covered by these complaints is from 27th October 2016 to 3rd February 2017 when the employment ended.

Terms of Employment (Information) Act, 1994. Section 3 of this Act provides that an Employer shall provide an Employee with a written statement of their Terms and Conditions of Employment within the period of 2 months of the commencement of the employment. Section 5 of the Act provides that where an Employer proposes to change a term of a contract of employment the Employee concerned shall be informed in writing of the proposed change within one month after the change has taken place. The evidence from the Complainant was that she had not been provided with either a Contract of Employment or with a written notification of the change which took effect on 9th January 2017. I find the Respondent has breached Section 3 and Section 5 of the Act.

Organisation of Working Time Act, 1997 – 2015.

Section 19 and Section 23 of the Act – Section 23 of the Act provides that where the employment terminated in the first six months of the current annual leave year then the Adjudication Officer can consider both the current and the previous annual leave years.

The Respondent provided correspondence, including a P45 and Payslips, dated 6th February 2017 to the WRC but the Respondent did not attend either Hearings. In this they state the Complainant was employed from 26th September 2016 to 3rd February 2017 and the payslips provided date from 30th September 2016 to February 2017. These show the Complainant worked and was paid for 10 hours a week at an hourly rate of £9.15 an hour up until 6th January 2017 when this shows an hourly rate of £9.25 an hour. The Complainant states she commenced employment in September 2015 and that she had never been provided with these payslips during the course of her employment. She also states she worked 42 hours a week.

The annual leave year is from April to March, therefore I am dealing with the 2016/2017 annual leave year. The Complainant confirmed that she was paid for 11 hours annual leave on 3rd February 2017. On the Complainant’s evidence she worked 40 weeks in this annual leave year x 42 hours a week = 1680 hours x 8% = 134.4 hours annual leave due less the 11 hours paid to the Complainant = 133.40 hours due x £9.25 an hour = £1233.95

Section 21. This Section provides that where an employee works on a Public Holiday they are entitled to either a days pay – a day off in lieu or a day off within a month of the Public Holiday. The uncontested evidence of the Complainant was that she worked the following Public Holidays within the reference period – 31st October 2016 – 26th December 2016 – 27th December 2016 and 2nd January 2017. I find the Respondent has breached Section 21 of the Act

Section 14. This section provides that where an employee is required to work on a Sunday and that has not been taken into account in a contract of employment then an employee is entitled to payment of a Sunday Premium. The uncontested evidence of the Complainant was that she worked 3 of every 4 Sundays but was not paid a Sunday Premium and she had not been provided with a Contract of Employment. I find there are some 14 Sundays in the reference period and on the evidence of the Complainant she worked 3 of every four Sundays, she therefore worked some 10 of those Sundays. I find the Respondent has breached Section 14 of the Act.

Unfair Dismissals Act, 1977 – 2015. On the basis of the evidence and on the uncontested evidence of the Complainant I find the Complainant was dismissed without recourse to fair procedures or natural justice as provided for in S.I. 146/2000 and Section 7(2)(d) of the Unfair Dismissals Act, 1977. This S.I. was signed into law by the then Minister, Ms Harney on 26thMay 2000.

Payment of Wages Act, 1991. I find the Complainant is entitled to payment of one weeks wages on termination of her employment without notice on 3rd February 2017.

Decision:

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

Organisation of Working Time Act, 1997 – 2015.

CA-00010982-002 -On the basis of the evidence, the uncontested evidence of the Complainant, my findings above and in accordance with Section 41(5) of the Act of 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of £500.00 within 42 days of the date of this Decision.

CA-00010982-004 – On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Act of 2015,  I direct the Respondent to pay the Complainant £1233.95, subject to any lawful deductions and compensation of £300.00 for breach of the Act within 42 days of the date of this Decision.

CA-00010982-005 – On the basis of the evidence, my findings above and in accordance with Section 41(5) of the 2015 Act I direct the Respondent to pay the Complainant compensation of £800.00 within 42 days of the date of this Decision.

CA-00010982—008 – This complaint is a duplicate of CA-00010982-004 above.

CA-00010982-009 – This complaint is a duplicate of CA-00010982-005 above.

CA-00010982-010 – There was no evidence presented to me at the Hearings in relation to this complaint. I declare this complaint is not well founded.

PAYMENT OF WAGES ACT, 1991.

CA-00010982---006 – On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Act of 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant £399.00, subject to any lawful deductions, within 42 days of the date of this Decision.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00010982 -001 –  On the basis of the uncontested evidence of the Complainant I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of £4000.00 within 42 days of the date of this Decision.

Dated:   05/09/2018

Workplace Relations Commission Adjudication Officer:  Rosaleen Glackin

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