ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013370

Complaints:

Date of Adjudication Hearing: 03/07/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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 24th September 2017 until the employment terminated on 16th February 2018. The Complainant was paid £9.75 an hour from January 2018 and £9.50 an hour prior to that. The Complainant referred complaints to the Workplace Relations Commission on 22nd February 2018 alleging a breach of the Terms of Employment (Information) Act 1994 and breaches of Sections 14/19 and 21 of the Organisation of Working Time Act, 1997.

SUMMARY OF COMPLAINANT’S POSITION.

Terms of Employment (Information) Act, 1994 . The Complainant stated she had not been provided with a written statement of her Terms and Conditions of Employment by the Respondent. The Respondent provided a copy of the statement to the Hearing. The Complainant stated she did not recall seeing it. The Complainant forwarded an email to the WRC post the Hearing dated 3rd July 2018 in which she states she did not receive the statement as presented to the Hearing.

Organisation of Working Time Act, 1997. Section 14. The Complainant stated that she was never given any compensation for working on Sundays and none of her payslips has any compensation for Sunday Working. The Complainant provided payslips.

Section 19 And Section 23. The Complainant stated that the annual leave year was from January to December. She stated she did not receive any paid annual leave for 2017. She stated that she was informed the cut-off date for taking annual leave for 2017 was 31st December 2017 and the Respondent’s rules were take your annual leave or loose it. The Complainant stated she had requested annual leave in 2017. She stated and confirmed she had been granted her annual leave for 2018.

Section 21. The Complainant stated she had received less pay for hours worked over a Public Holiday. She stated she had worked 8 hours but was only paid for 5.50 hours. She stated she was not compensated by the Respondent for working on a Public Holiday.

SUMMARY OF RESPONDENT’S POSITION.

Terms of Employment (Information) Act, 1994. The Respondent presented a copy of the Written statement issued to the Complainant and signed and dated by the Respondent on 22nd October 2017.

Organisation of Working Time Act, 1997.

Section 14. The Respondent stated the Complainant’s rate of pay includes a 2.7% additional rate for working on a Sunday.

Section 19 and 23. The Respondent stated the annual leave year ran from January to December. The Respondent stated the Complainant had not requested annual leave for 2017. They stated they had attended Mediation in May where they had offered to pay the Complainant her outstanding annual leave entitlements but this was refused by the Complainant.

Section 21. The Respondent confirmed to the Hearing that the Complainant had worked the Public Holiday of 30th October 2017. I was provided with payslips and rosters.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence and supporting documentation provided by both Parties I find as follows –

Terms of Employment (Information) Act, 1994.

Section 3 of the Act requires an employer to present an employee with a written statement of their Terms and Conditions of Employment within the period of two months of the commencement of the employment. The Respondent presented a copy of the statement signed and dated by the Respondent on 22nd October 2019. The employment commenced on 24th September 2017. I find there has been no breach of Section 3 of the Act.

Organisation of Working Time Act, 1997.

Section 14. This section of the Act provides that “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 the employer by …” either increasing the employee’s rate of pay, by granting the employee appropriate time off. I have examined the Complainant’s Terms and Conditions of Employment. This provides as follows – “Remuneration. Your hourly rate of pay will be £9.50 an hour, paid weekly in arrears. The rate of pay is inclusive of all shift, roster and overtime allowances including weekend work”. This Contract also provides under Hours of Work as follows – “Your normal working week will be 10 hours per week on a rotating shift between the hours of 7.00am and 11.00pm over a seven day working week”. I find this complaint is well founded and that although there is provision in the Complainant’s Contract of Employment for working a rotating roster over a seven day week and that the Contract provides for this. I note that the Complainant’s hourly rate of pay was increased to £9.75 an hour effective from January 2018. However the Contract of Employment does not refer to Sunday Working as required by Section 14 of the Act as set out above.

Section 23. This section of the Act provides that on termination of the employment an employee is entitled to be paid all accrued annual leave due and not paid for the current year and the previous annual leave year if a complaint is lodged within the first six months of the current annual leave year. The evidence from both Parties was that the Complainant had been paid her accrued annual leave entitlements for 2018 but had not been paid her annual leave entitlements for 2017. On the basis of the rosters provided to me I have calculated the Complainant worked a total of 151.50 hours in 2017 x 8% = 12.12 hours annual leave due for 2017 x 9.75 an hour = £118.17 due to be paid to the Complainant.

Section 21. Public Holidays. Both Parties confirmed the Complainant worked the October Public Holiday on 30th October 2017. The evidence shows the Complainant was rostered to work 7.5 hours on that day. The payslip dated 24th November 2017 shows the Complainant was paid for 5.5 hours under “Bank Holiday” at £9.50 an hour = £52.25. This is a breach of Section 21 of the Act. The evidence also was that the Complainant was not compensated by the Respondent for being required to work on Sundays.

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.

Terms of Employment (Information) Act, 1994 CA-00017601-004.

On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded as evidence as presented to the Hearing of a Statement of Terms and Conditions of Employment issued to the Complainant on 22nd October 2017.

Organisation of Working Time Act, 1997

CA-00017601-001. On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of £2000.00 within 42 days of the date of this Decision for breach of Section 14 of the Act.

CA-00017601-002. On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant £118.17, subject to any lawful deductions, being accrued annual leave due and not paid on termination of the employment. I also direct the Respondent to pay the Complainant compensation of £300.00 for breach of Section 23 of the Act. These amounts to be paid to the Complainant within 42 days of the date of this Decision.

CA-00017601-003. On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. The Respondent has breached Section 21 of the Act. The evidence was the Complainant was not paid for all hours worked on 30th October 2017 and secondly she was not compensated by the Respondent for being required to work on a Public Holiday. I direct the Respondent to pay the Complainant £29.25 being the three hours the Complainant worked on the Public Holiday of 30th October 2017 and for which she was not paid and I direct the Respondent to pay the Complainant compensation of £500.00 for a breach of Section 21 of the Act. These sums to be paid to the Complainant within 42 days of the date of this Decision.

Dated:   24.09.2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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