Complainant

Respondent

Anonymised Parties

An Assistant

Bakery A

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00023467-002

23/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00023467-003

23/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023467-004

23/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023467-005

23/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023467-006

23/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023467-007

23/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023467-008

23/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023467-009

23/11/2018

The Complainant commenced her employment with the Respondent in or around 22nd or 26th June 2017 as an Assistant. Following an inspection by the WRC Inspectorate, on 13th February 2019 the Complainant received payslips showing that in or around 18th February 2018, the Bakery B who is the Respondent in the complaint bearing reference number ADJ-00020396 took over the business and the Complainant submits that as of 18th February 2018 she became an employee of the Bakery B.

She submitted a number of complaints against the Respondent (Bakery A) to the Director General of the WRC on 23rd November 2018. The Respondent was notified of the claim by letter dated 28th November 2018. A copy of the WRC Complaint Form was forwarded to the Respondent. On 11th February 2019, the WRC received a letter from the Respondent’s solicitor advising that, notwithstanding its denial of the claim, the Respondent does not have sufficient funds to deal with this matter.

Correspondence informing the parties of the date, time and the venue of an adjudication hearing was issued by the WRC on 22nd February 2019. The hearing was scheduled to take place on 2nd April 2019.

Additional complaint was received from the Complainant on 12th March 2019 whereby the Complainant requested that the Bakery B be joined to the proceedings. As a result, the hearing scheduled for 2nd April 2019 was postponed. Correspondence informing the parties of the new arrangements was issued by the WRC on 18th September 2019. The hearing was scheduled on 15th October 2019.

On 14th October 2019, the WRC received an email from the Respondent’s solicitor informing that they have no instructions to act in relation to this matter.

The Respondent did not attend the hearing and was not represented. I waited some time to accommodate a late arrival. Having taken these steps, I proceeded with the adjudication hearing in the absence of the Respondent.

This complaint is closely associated with a complaint made by the Complainant against another Respondent. The other complaint is subject to a report bearing reference ADJ-00020396. The complaints were heard together on the 15th October 2019 at a single adjudication hearing.

A supplemental submission was received from the Complainant on 21st October 2019.

The Complainant submits that her WRC complaint was referred to the Director General on 23rd November 2018. The Complainant’s employment with the Respondent ceased on 18th February 2018. The Complainant was aware of the time limits prescribed by the relevant legislation.

The Complainant’s representative sought an extension of time in relation to the referral of the within claims to the WRC on the basis that the Complainant has not been made aware of the fact that her employment transferred from the Respondent to another employer. At no stage was the change communicated to her. The Complainant argued that she only became aware of the transfer when, following a WRC inspection she was furnished with payslips showing a new employer as of 18th February 2018.

The Complainant’s representative also sought an extension of the cognisable period in respect of these complaints on the basis that the Complainant was afraid that she would lose her job if she proceeded with a claim against the Respondent. The Complainant said that she did not want to “rock the boat”.

The Complainant confirmed that some two weeks after she commenced her employment with the Respondent she inquired about payslips and was told the Respondent’s accountant would furnish her with same. The Complainant said that she asked about the payslips every two weeks. She also raised queries in relation to the payments due to her. She confirmed that there was never any threat from the Respondent in respect of the security of her job.

The Respondent did not attend the adjudication hearing and was not represented.

The first matter I must decide is if I have jurisdiction to hear these complaints.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41(6) of the Workplace Relations Act 2015 which provides that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows; 

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.

The Complainant’s employment with the Respondent ceased in or around 18th February 2018. The Complainant was not aware of the change in respect of her employment until 13th February 2019 when her solicitor received payslips confirming same.

The Complainant referred her complaints to the WRC on 23rd November 2018. Therefore, at the time of the submission of her complaints against the Respondent the Complainant was not aware that her employment with the Respondent has ceased.  

I find that the herein complaints have been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act 2015. However, I accept the application to extend the time limit on the basis that the Complainant, until 13th February 2019 was not aware that her employment with the Respondent had ceased. I therefore find that the herein complaint were referred within the time limit prescribed by Section 41(8) of the Act.

The cognisable period of the complaint is therefore from 23rd November 2018 to 24 May 2018. The Complainant’s employment with the Respondent ceased in or around 18th February 2018.

The Complainant sought an extension of time in relation to the complaints to cover the period from 24th November 2017 to 18th February 2018 (the date of cessation of her employment) on the basis that she could not have sought her entitlements earlier as she feared she would lose her job as a result and she did not want to “rock the boat”. The Complainant said that she previously inquired with the Respondent about her payslips and raised the matter every two weeks. She also raised the matter of delayed payments. She confirmed that there was never any threat of her losing her job following her requests.

Having considered the Complaint’s submission in that regard, I find that the Complainant has not shown reasonable cause to empower me to extend the applicable time limits to cover the period from 24th November 2017 to 23rd November 2018.

The Complainant submits that the Respondent did not pay her or paid her less than the amount due to her on 27th September 2018. The Complainant claims that the Respondent owes her €6,420 in respect of unpaid wages.

Post the hearing, the Complainant submitted further calculations of the underpayment and claimed that in the period from 23rd November 2017 to 10th February 2018 (the last pay date with the Respondent), the Respondent underpaid her by €488.00

The Respondent did not attend the adjudication hearing and was not represented.

The Complainant’s employment with the Respondent ceased in or around 18th February 2018. Therefore, in the cognisable period from 24th May 2018 to 23rd November 2018, the Respondent was not the Complainant’s employer. Accordingly, the Respondent is not liable for any underpayments that might have occurred in the cognisable period.

I find that this complaint is not well founded.

The Complainant submits that she did not receive a statement in writing of her terms of employment.

The Respondent did not attend the adjudication hearing and was not represented.

Section 3 of the Act provides as follows:

“ Written statement of terms of employment

(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say…

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say…

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs, (h), (i), (j), (k) and (l) of the said subsection (1) may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) [or (1A) shall be signed and dated by or on behalf of the employer.

(5) A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6)

(a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1) or (1A)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.”

Based on the uncontested evidence f the Complainant, I find that the Respondent was in breach of Section 3 of the Terms of Employment (Information) Act, 1994 and that the Complainant was not provided with a written statement of her terms and conditions of employment at any stage during her period of employment.

Section 7(2)(d) of the Act states that an employer can be ordered “to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration”.

Taking all of the circumstances of this case into consideration, I direct the Respondent to pay the Complainant compensation of €756 net.

The Complainant submits that she did not receive her daily rest periods. In the WRC complaint form, the Complainant claimed that she would often work until 2.30am-3am and recommence work at 1pm-3pm. She submitted that the hours of work would vary but she would work long hours including driving long distances.

At the hearing, the Complainant argued that she was commencing her work at approximately 2.30am-3am, she would pack the deliveries, load them onto the van and then she would begin travelling. She claimed that she would work to between 1pm and 3pm but sometimes (once every two weeks) would have to work until approximately 4pm-5pm. The Complainant claimed that her working hours were such that often she would not receive 11 hours consecutive rest in each period of 24 hours.

The Respondent did not attend the adjudication hearing and was not represented.

The Complainant’s employment with the Respondent ceased in or around 18th February 2018. Therefore, in the cognisable period from 24th May to 23rd November 2018, the Respondent was not the Complainant’s employer.

I find that this complaint is not well founded.

The Complainant submits that she did not receive her statutory breaks. She submits that she worked “straight through”, often working ten hours in a row, without getting any breaks. The Complainant submits that she would eat a sandwich whilst driving.

The Respondent did not attend the adjudication hearing and was not represented.

The Complainant’s employment with the Respondent ceased in or around 18th February 2018. Therefore, in the cognisable period from 24th May 2018 to 23rd November 2018, the Respondent was not the Complainant’s employer.

I find that this complaint is not well founded.

The Complainant submits that she did not receive her annual leave entitlements.

The Respondent did not attend the adjudication hearing and was not represented.

I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 23rd November 2018 and therefore the cognisable period that may be investigated is 24th May 2018 to 23rd November 2018. I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from the 1st April 2018 to 23rd November 2018. The Complainant’s employment with the Respondent ceased in or around 18th February 2018. Therefore, in the cognisable period from 1st April 2018 to 23rd November 2018, the Respondent was not the Complainant’s employer.

I find that this complaint is not well founded.

The Complainant submits that she did not receive her annual leave entitlements. At the adjudication hearing, the Complainant confirmed that this complaint is a duplication of the CA-00023467-006, above.

The Respondent did not attend the adjudication hearing and was not represented.

The complaint is a duplication of the CA-00023467-006, above.

I find that this complaint is not well founded.

The Complainant submits that she did not receive her public holidays entitlements.

The Respondent did not attend the adjudication hearing and was not represented.

I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 23rd November 2018 and therefore the cognisable period that may be investigated is 24th May 2018 to 23rd November 2018. The Respondent was not the Complainant’s employer in the cognisable period.

I find that this complaint is not well founded.

The Complainant submits that she did not receive her public holidays entitlements. At the adjudication hearing, the Complainant confirmed that this complaint is a duplication of the CA-00023467-008.

The Respondent did not attend the adjudication hearing and was not represented.

The complaint is a duplication of the CA-00023467-008, above.

I find that this complaint is not well founded.

Annual leave- public holidays- underpayment of wages – breaks- rest period