ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021879
Parties:
| Complainant | Respondent |
Anonymised Parties | A Part-time hotel worker | A Hotel |
Representatives | John Duggan , Callan Tansey Solicitors | In Person |
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-00028688-001 | 27/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028688-002 | 27/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028688-003 | 27/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028688-004 | 27/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028688-005 | 27/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028688-006 | 27/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028688-007 | 27/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028688-008 | 27/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028688-009 | 27/05/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00028688-010 | 27/05/2019 |
Date of Adjudication Hearing: 13/11/2019
Workplace Relations Commission Adjudication Officer: Emile Daly
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 Complainant started work as an accommodation worker in the Respondent’s hotel on 20 August 2018. Her hours were typically 7hour shifts, 7 days per week (which averaged out over the duration of her employment to 37.5 hours per week.) At the start of December 2018, her hours were cut and despite making herself available for work for her usual shifts she did not get any or got reduced hours until she was dismissed on 25 January 2018. Prior to the dismissal when she asked management about when she would be rostered and was told she would when business picked up. |
Summary of Complainant’s Case:
CA00028688 – 001 – (T&C) The Complainant did not receive any written terms and conditions of employment, within two months of commencement of her job nor at any time. CA 00028688 – 002 – (PAY) The Complainant made herself available for work in week 48 (of 2018) but only received 5.5 hours instead of 37.5 hours. In these circumstances under section 18 of the Organisation of Working Time Act 1997 the Complainant is entitled to 25% of her usual weekly pay and the failure to pay her this amounts to an unlawful deduction from wages under section 5 (6) of the Payment of Wages Act 1991. Based on a basic rate of pay of €9.55 per hour for week 48 (of 2018) the Complainant unlawful deduction of wages is €37 CA 00028688 – 003 (PAY) The Complainant made herself available for work in week 49 (of 2018) but received nil hours instead of 37.5 hours. In these circumstances under section 18 of the Organisation of Working Time Act 1997 the Complainant is entitled to 25% of her usual weekly pay and the failure to pay her this amounts to an unlawful deduction from wages under section 5 (6) of the Payment of Wages Act 1991. Based on a basic rate of pay of €9.55 per hour for week 49 (of 2018) the Complainant unlawful deduction of wages is €89.53 CA 00028688 – 004 (PAY) The Complainant made herself available for work in week 50 (of 2018) but received nil hours instead of 37.5 hours. In these circumstances under section 18 of the Organisation of Working Time Act 1997 the Complainant is entitled to 25% of her usual weekly pay and the failure to pay her this amounts to an unlawful deduction from wages under section 5 (6) of the Payment of Wages Act 1991. Based on a basic rate of pay of €9.55 per hour for week 50 (of 2018) the Complainant unlawful deduction of wages is €89.53 CA 00028688 – 005 (PAY) The Complainant made herself available for work in week 51 (of 2018) but received nil hours instead of 37.5 hours. In these circumstances under section 18 of the Organisation of Working Time Act 1997 the Complainant is entitled to 25% of her usual weekly pay and the failure to pay her this amounts to an unlawful deduction from wages under section 5 (6) of the Payment of Wages Act 1991. Based on a basic rate of pay of €9.55 per hour for week 51 (of 2018) the Complainant unlawful deduction of wages is €89.53 CA 00028688 – 006 (PAY) The Complainant made herself available for work in week 52 (of 2018) but received nil hours instead of 37.5 hours. In these circumstances under section 18 of the Organisation of Working Time Act 1997 the Complainant is entitled to 25% of her usual weekly pay and the failure to pay her this amounts to an unlawful deduction from wages under section 5 (6) of the Payment of Wages Act 1991. Based on a basic rate of pay of €9.55 per hour for week 52 (of 2018) the Complainant unlawful deduction of wages is €89.53 CA 00028688 – 007 (PAY) The Complainant made herself available for work in week 1 (of 2019) but received nil hours instead of 37.5 hours. In these circumstances under section 18 of the Organisation of Working Time Act 1997 the Complainant is entitled to 25% of her usual weekly pay and the failure to pay her this amounts to an unlawful deduction from wages under section 5 (6) of the Payment of Wages Act 1991. Based on a basic rate of pay of €9.55 per hour for week 1 (of 2019) the Complainant unlawful deduction of wages is €89.53 CA 00028688 – 008 (PAY) The Complainant made herself available for work in week 2 (of 2019) but received nil hours instead of 37.5 hours. In these circumstances under section 18 of the Organisation of Working Time Act 1997 the Complainant is entitled to 25% of her usual weekly pay and the failure to pay her this amounts to an unlawful deduction from wages under section 5 (6) of the Payment of Wages Act 1991. Based on a basic rate of pay of €9.55 per hour for week 2 (of 2019) the Complainant unlawful deduction of wages is €89.53 CA 00028688 – 009 (PAY) The Complainant made herself available for work in week 3 (of 2019) but received nil hours instead of 37.5 hours. In these circumstances under section 18 of the Organisation of Working Time Act 1997 the Complainant is entitled to 25% of her usual weekly pay and the failure to pay her this amounts to an unlawful deduction from wages under section 5 (6) of the Payment of Wages Act 1991. Based on a basic rate of pay of €9.55 per hour for week 3 (of 2019) the Complainant unlawful deduction of wages is €89.53 CA 00028688 – 010 (PAY) The Complainant made herself available for work in week 4 (of 2019) but received nil hours instead of 37.5 hours. In these circumstances under section 18 of the Organisation of Working Time Act 1997 the Complainant is entitled to 25% of her usual weekly pay and the failure to pay her this amounts to an unlawful deduction from wages under section 5 (6) of the Payment of Wages Act 1991. Based on a basic rate of pay of €9.55 per hour for week 4 (of 2019) the Complainant unlawful deduction of wages is €89.53 The total amount claimed therefore under the Payment of Wages Act 1991 for unlawful deduction of wages (complaints; CA 00028688 – 002 to CA 00028688 – 10) is €753.24
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Summary of Respondent’s Case:
CA00028688 – 001 – (T&C) The Respondent concedes this complaint In respect of the all the Payment of Wages complaints listed below CA00028688 – 002 CA00028688 – 003 CA00028688 – 004 CA00028688 – 005 CA00028688 – 006 CA00028688 – 007 CA00028688 – 008 CA00028688 – 009 CA00028688 – 010 The Respondent presented the same defence. He submitted that the hours worked by part-time workers were always flexible, which suited management and the workers. The reason that the Complainant was not rostered for those 8 weeks was because there was a reduction in occupancy rates in the hotel and therefore the requirement for accommodation staff reduced. The Respondent did not dispute that the Complainant was available and waiting for work hours to be rostered to her in respect of these weeks. He did not explain other than the occupancy of the hotel was low but it would pick up in time. He did not place her on lay off. He did not dispute that she asked management on a number of occasions why she was not being rostered. He accepts too that another part time worker who had less service than the Complainant was given working hours but her work was better than the Complainant. He dismissed the Complainant at the end of January for poor performance and accepts that he had not forewarned her about this dismissal nor advised her when she was working that her work performance was other than good. |
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.
CA00028688 – 001. This complaint is conceded by the Respondent and so I award the Complainant two weeks salary Award: €191 x 2 = € 382 CA00028688 – 002; CA00028688 – 003; CA00028688 – 004; CA00028688 – 005; CA00028688 – 006; CA00028688 – 007; CA00028688 – 008; CA00028688 – 009; CA00028688 – 010 The above complaints, taken under the Payment of Wages Act 1991, are well founded. The Complainant made herself available for work, she was not informed that she would not receive work and was allowed to expect that she would be working from one week to the next; she was not put on lay off, she was not told that she would be unlikely to be rostered for an estimated number of weeks and therefore was allowed to think that each week she might be rostered. For nine weeks before and after Christmas she was left in limbo as to whether or not she would be rostered or not. This is in breach of section 18 of the Organisation of Working Time Act 1997 and (as listed in Part 1 Schedule 5 of the Workplace Relations Act 2015) is enforceable under section 5 (6) of the Payment of Wages Act 1991. As the complaints are well founded I make the following awards in respect of each complaint: CA00028688 – 002 Award: €37.00 CA00028688 – 003 Award: € 89.50 CA00028688 – 004 Award: € 89.50 CA00028688 – 005 Award: € 89.50 CA00028688 – 006 Award: € 89.50 CA00028688 – 007 Award: € 89.50 CA00028688 – 008 Award: € 89.50 CA00028688 – 009 Award: € 89.50 CA00028688 – 0010 Award: € 89.50 Total (for CA00028688 – 002 to CA00028688 – 010) €753.24 |
Dated: 16/12/19
Workplace Relations Commission Adjudication Officer: Emile Daly
Key Words:
Zero hour contracts - Payment of Wages Act 1991 |