Complainant

Respondent

Anonymised Parties

An assistant manager

A shop owner

Act

Complaint 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-00022532-001

09/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00022532-002

09/10/2018

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

CA-00022532-004

09/10/2018

The complainant outlined that he worked for the respondent between 4 August and 13 September 2018. He was hired as assistant manager of the shop, so did all the roles, including ordering stock. He did not receive a contract or statement of the terms of his employment. They agreed that he would be paid €28,000 per year (€2,333.33 per month gross.) He asked for a contract and for assurance that his employment was registered, but the respondent was always too busy to confirm this. There was no roster and no records of working time. The complainant was sometimes able to take breaks. He did not clock in and could not record his working hours. There would be only two staff in the evenings, so it was hard to take breaks.

The complainant outlined that he was due pay for nine days worked in September. He was only paid for August. He pursued this with the respondent, but this was still outstanding.

In reply to the respondent, the complainant did not accept that he had changed the hours assigned to staff. It was the respondent who set hours for staff. He worked until 13 September and texted the respondent the following day to say that he was leaving. The complainant suggested meeting the respondent to collect his outstanding wages. He was paid €1,800 (net) for hours worked in August and received no further payment. He had only received one weekend off while working for the respondent.

The respondent outlined that the notification for this hearing went to an old address and he had not received other correspondence from the Workplace Relations Commission. He met the complainant prior to the start of his employment, after the shop joined a named retail group. He agreed that the complainant would be assistant manager on a salary of €28,000 per year. The complainant said he would not be able to work evening hours. He had two months to provide a statement to the complainant and this employment had ended prior to this period coming to an end. The complainant had been able to dictate the staff’s hours including when the respondent was on holidays from 1 September.

The respondent said that the complainant’s last day of employment was 6 September and not 13 September. The complainant had texted the respondent’s son to say he was starting a new role on 7 September. The respondent did not the complainant the outstanding monies due as he was waiting to receive information regarding his tax allowance. The respondent had not received certain messages from the complainant and missed their scheduled meeting as he fell asleep.

CA-00022532-001

This case predates the commencement of Part 3 of the Employment (Miscellaneous Provisions) Act, 2018.

Section 3 of the Terms of Employment (Information) requires an employer to provide a statement of the terms of employment to an employee. This must be done within two months of the start of employment. Section 3(5) requires the employer to retain the statement during the period of employment and for one year thereafter.

I appreciate that the complainant resigned because he was dissatisfied in not getting a statement to clarify important terms of his employment. There was, however, no contravention of the Terms of Employment (Information) Act as the two-month period had not expired. As there was no contravention, there can be no award of redress.

CA-00022532-002

This is a complaint pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations, 2012 in relation to keeping statutory records. The Regulations permit mobile workers to refer adjudication complaints to the Workplace Relations Commission regarding a failure by their employer to maintain records and other duties. This is only available to mobile workers. The complainant was not a mobile worker; he worked in a shop and did not drive a lorry.

There is no equivalent, general right to refer adjudication complaints in relation to records required by the Organisation of Working Time Act. Section 25 of the Organisation of Working Time Act sets out the record-keeping obligations of an employer; a breach of section 25 is not justiciable before an adjudication officer per section 27 of the Act. Any such breaches may be referred to the WRC inspection service, as occurred separately in this case.

CA-00022532-004

This is a complaint pursuant to the Payment of Wages Act. The complainant asserts that he worked nine days, for which he was not paid. I find as fact that the complainant worked these days, as he outlined in cogent evidence. These monies are properly payable to the complainant and the respondent has not said how this deduction was justified. The wages due to the complainant are €690.40 and the non-payment of the wages is a contravention of the Act. Pursuant to section 6(1)(b) of the Act, it is fair and reasonable to award an additional €400 to compensate the complainant for the contravention of the Act. The total redress to be paid by the respondent to the complainant is €1,090.40.

CA-00022532-001

I find that the complaint pursuant to the Terms of Employment (Information) Act is not well founded.

CA-00022532-003

I find that the complaint pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations is not well founded.

CA-00022532-004

I find that the complaint pursuant to the Payment of Wages Act is well founded and the respondent shall pay to the complainant redress of €1,090.40.

Terms of Employment (Information) Act

Organisation of Working Time Act / records

Payment of Wages Act / compensation