ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017585

Parties:

	Complainant	Respondent
Anonymised Parties	A Home Help	A Health Service Provider

Complaint:

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-00022671-002	17/10/2018

Date of Adjudication Hearing: 24/06/2019

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant was never advised that her frequency of pay would alter from fortnightly to monthly.

Summary of Complainant’s Case:

The complainant had been in continuous employment since 1998. When she turned 65 she was retired and reemployed on a fixed term contact commencing 11 May 2018 and ending on 10 May 2019.

The complainant never received her wages between May and August 2018 and the complainant submitted a grievance in relation to same on 14 August but no grievance hearing was heard. On 21 September 2018 the complainant received an apology for the delay with her pay and the complainant referred her complaint on 17th October 2018. She eventually received her pay on 18th October but no pay slip in respect of her back pay. On 13 December she was formally advised that the frequency of pay had been altered from fortnightly to monthly.

Case law cited included Hannigans Butchers Ltd & Bernak DWT194 as well as Von Colson and Kamann v Land Nordrhein-Westfalen (1984)

Summary of Respondent’s Case:

The Respondent did not attend the Hearing. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and in the circumstances. Following the hearing the respondent wrote to the WRC on the 26th June 2019 apologising for the respondent’s failure to attend. They advised that they had been involved with informal discussions with the complainant and believed “the issue would be concluded…and the complaint withdrawn”.

I find their non-attendance to be unreasonable in the circumstances.

Findings and Conclusions:

Section 3(1) of the 1994 Acts provides that:

3.— (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—

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval.

The respondent did not attend and apologised for same on the 26th June 2019. No additional information was furnished by the respondent other than a belief by them that the issue would be concluded following informal discussions.

I note that prior to the complainant’s fixed term contract, she received payment on a fortnightly basis. Having examined the documentation submitted, I note that nowhere is there reference to the frequency of the complainant’s pay or that it would change; either within the respondent’s “application for approval to be retained beyond the compulsory retirement age”, HR circular 6/2018, Circular 15/2017 or the fixed term contract which the complainant received. I also note that the respondent failed to deal with the grievance around this and other complaints that the complainant had.

Based on all the evidence I find that the complaint is well founded and taking into consideration the standards of fairness or equity required by the CJEU in the C-14/83Von Colson and Kamann v Land Nordrhein-Westfalen[1986] C.M.L.R 430, as well as section 7(2)(d), I order the respondent to pay the complainant €1,000.00.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint is well founded and I order the respondent to pay the complainant €1,000.

Dated: 06/08/19

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Frequency of pay, respondent did not attend