ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011185
Parties:
| Complainant | Respondent |
Anonymised Parties | A Caretaker | A Health Service Provider |
Representatives | Citizens Information Service | Byrne Wallace |
Complaint(s):
Act | Complaint/Dispute 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-00014909-001 | 10/10/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00014909-002 | 10/10/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00014909-003 | 10/10/2017 |
Date of Adjudication Hearing: 10/01/2018 and 27/06/2018
Workplace Relations Commission Adjudication Officer: Michael Hayes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The respondent has employed the complainant as a caretaker part-time/temporary since in or around 10th of November 1999. She is paid €162.50 and works 12 hours per week. The parties made written and oral submission to the hearing. |
Summary of Complainant’s Case:
CA-00014909-001: The complainant submits that she was not provided with written terms and conditions of employment in contravention of s. 3 of the Act. CA-00014909-002: The complainant submits that she was not paid her statutory leave entitlement in contravention of s. 19 of the Act. The complainant is entitled to accumulated leave and relies on the King case and the principle of direct effect to advance the same. CA-00014909-003: The complainant submits that she was not paid her entitlement to statutory Public Holiday in contravention of s. 21 of the Act. She worked on most public holidays. |
Summary of Respondent’s Case:
CA-00014909-001: The respondent relies upon ‘a form of caretaker contract, which sets out terms and conditions’ and accepts that it is not able provide a statement of terms and conditions which comply with the requirements set out at s. 3. CA-00014909-002: The respondent accepts that it has not complied with the provisions of the Act as set out at s. 19. It has agreed to comply therewith. The respondent submits that the King case has no relevance insofar as Mr King had left the employment whereas the complainant herein remains in employment and he took no leave because he would not be paid for the same whereas the complainant took leave and arranged cover. Furthermore, the adjudicator is obliged to apply national law. CA-00014909-003: The respondent accepts that it has not complied with the provisions of the Act as set out at s. 21. It has agreed to comply therewith. The respondent submits that the King case has no relevance insofar as Mr King had left the employment whereas the complainant herein remains in employment and he took no leave because he would not be paid for the same whereas the complainant took leave and arranged cover. Furthermore, the adjudicator is obliged to apply national law. |
Findings and Conclusions:
The cognisable period of complaint in the instant case is from the 11th of March 2017 until the 10th of October 2017. This period embraces statutory entitlement (annual leave and public holiday) arising in the holiday years April 2017 to March 2017 and April 2017 to 10th of October 2017 (date of receipt of complaint). I accept the submission of the respondent to the extent that I am limited as it relates to entitlement to and accrual of annual and public holiday comprehended within the specific time frame. While noting the assertion that the respondent intends to comply with the relevant provisions for future reference I do not accept that I am in any way constrained as it relates to compensation (other than by statutory limit) for breach in the cognisable period or indeed as it relates to compliance. I note that the respondent has been made aware of the situation as far back as 2003 and that the complainant herself has raised the issue on numerous occasions. CA-00014909-001: The form of contract referred to by the respondent is hopelessly deficient. CA-00014909-002: Noting the referral by the Supreme Court inthe Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochana v The Workplace Relations Commission and Ronald Boyle, Gerard Cotter and Brian Fitzpatrick [2017] IESC 43 I accept that I must apply national law in this case. CA-00014909-003: Noting the referral by the Supreme Court inthe Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Siochana v The Workplace Relations Commission and Ronald Boyle, Gerard Cotter and Brian Fitzpatrick [2017] IESC 43 I accept that I must apply national law in this case. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00014909-001: The complaint is well founded and I hereby require that the respondent pay the complainant €487.50 (four hundred and eighty-seven euro and fifty cent) in compensation for breach of the Act. CA-00014909-002: The complaint is well founded and I hereby require that the respondent pay the complainant €1,975 (say one thousand nine hundred and seventy-five euro) which sum amounts to 6 weeks of Annual Leave accrued and taken or €975 and €1,000 of compensation for breach of the Act. CA-00014909-003: The complaint is well founded and I hereby require that the respondent pay the complainant €800 (say eight hundred euro) in compensation for breach of the Act. |
Dated: 17th September 2018
Workplace Relations Commission Adjudication Officer: Michael Hayes