Complainant

Respondent

Anonymised Parties

An Assistant

Bakery B

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-00026986-002

12/03/2019

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

CA-00026986-003

12/03/2019

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

CA-00026986-004

12/03/2019

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

CA-00026986-005

12/03/2019

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

CA-00026986-006

12/03/2019

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

CA-00026986-007

12/03/2019

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

CA-00026986-008

12/03/2019

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

CA-00026986-009

12/03/2019

The Complainant commenced her employment with the Bakery A in or around 22nd or 26th June 2017 as an Assistant. She was responsible for deliveries, invoices and collection from bakeries. 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 within case took over the business and the Complainant submits that as of 18th February 2018 her employment transferred to the Bakery B.

She submitted a number of complaints against the Bakery A to the Director General of the WRC on 23rd November 2018. She subsequently referred a number of complaints against the Respondent in the within case, the Bakery B on 12th March 2019.

The Respondent was notified of the claim by letter dated 13th March 2019. A copy of the WRC Complaint Form was forwarded to the Respondent. Correspondence informing the parties of the date, time and the venue of an adjudication hearing was issued by the WRC on 18th September 2019. The hearing was scheduled to take place 15th October 2019.

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 report bearing reference ADJ-00018199. 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 within complaint was referred to the WRC on 12th March 2019. The Complainant’s calculations of any underpayments in respect of her claims were, incorrectly based on the basis of the submission date being 23rd November 2018.

The cognisable period in respect of the within case is from 13th September 2018 to 12th March 2019. The Complainant became ill on 12th October 2018 and has not been available for work until 12th September 2019. She was in receipt of the Illness Benefit from the Department of Employment Affairs and Social Protection.

The Complainant’s representative 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 any claim against the Respondent during her employment. The Complainant said that she did not want to “rock the boat”.

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

(6) 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.

(8) 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.”

The Complainant said that she was afraid that she would lose her job if she referred her complaints to the WRC. However, she confirmed that she regularly inquired about her payslips and underpayments of wages with the Respondent and there was never any threat of her losing her job following her requests. She said that she did not refer her complaint to the WRC as she did not want to “rock the boat”.

The evidence, as presented at the hearing does not support the Complainant’s assertion that the reason for the delay in submitting her claim to the WRC was related to her concern about the Respondent dismissing her as a result.

Having carefully considered the basis for the Complainant’s request as presented by the Complainant, I find that the Complainant has not shown reasonable cause to empower me to extend the applicable time limits.

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 18th February 2018 to 23rd November 2018 the Respondent did not pay her the amount of €6,699 net.

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

The within complaint was referred to the WRC on 12th March 2019. Therefore, the cognisable period is from 13th September 2018 to 12th March 2019.

The Complainant confirmed that she was ill and not available for work from 12th October 2018. The Complainant confirmed that her weekly wage was €378 net.

Therefore, in the cognisable period the Complainant was expected to be paid some €1,512 net. She presented copies of her bank statements showing amount of €870 net received in the relevant period.

Based on the uncontested evidence of the Complainant, I find this complaint partly well founded. I direct the Respondent to pay the Complainant the sum of €642 net in respect of the underpayment.

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 of 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.

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 would have to work until approximately 4pm-5pm. She confirmed that the later finish time could occur once very two weeks.

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.

Section 11 of the Organisation of Working Time Act provides as follows:

“11. Daily rest period

An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.”

The cognisable period for the within complaint, having regard to the time limits set out in the Workplace Relations Act, 2015 is 13th September 2018 to 12th March 2019. The Complainant was out sick from 12th October 2018.

In Antanas v Nolan Transport DWT 17/2011 (reported at [2012] E.L.R. 311) the Labour Court has accepted that this section must be interpreted as imposing a positive duty on employers to ensure that not only are opportunities available to take the minimum daily rest period but also that it is actually observed.

In Sandra Cooneys Home Care Ltd v Morgan DWT 1914 the Labour Court held that:

“The obligation to provide rest periods is imposed for health and safety reasons. The right of workers to adequate protection of their health and safety in the workplace is a fundamental social right in European Law.”

The Complainant’s evidence was somewhat unclear as to her hours of work. In the WRC complaint form she claimed that she would have finished work at 2.30am-3am and recommence at 1pm-3pm. At the adjudication hearing, the Complainant argued that she would commence work between 2.30-3am and finish between 1pm-3pm and often she would have to work until approximately 4pm-5pm. She clarified to the Adjudication Officer that the later finish time would occur “once every 2 weeks”.

The Complainant did not present any specifics in respect of her hours of work. There was no evidence presented whatsoever in respect to the period in question between 13th September and 12th October 2018. Based on the evidence before me, I accept that, due to the nature of the Complainant’s work it is conceivable that it would occur that the Complainant would occasionally not receive her 11 hours rest period. However, given the vague evidence on part of the Complainant, I am of the view that it was not a regular occurrence. I note that the Respondent resides abroad and the Complainant was ultimately in control of her working arrangements. Nonetheless, it is clear that the Respondent took no practical steps to ensure that that its obligations under the Act in that regard were observed.

The right to adequate rest is a right derived from a Directive of the European Union. In Von Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891 the CJEU has made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

Based on the uncontested evidence of the Complainant, I find that this complaint is well founded. I direct the Respondent to pay the Complainant compensation in the amount of €500.

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.

Section 12 of the Organisation of Working Time Act provides:

“Rests and intervals at work

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

In The Tribune Printing & Publishing Group v Graphical Print & Media Union DWT 6/2004 (reported at [2004] E.L.R. 222), the Labour Court held that an employer was under a positive duty to ensure that employees received their rest breaks.

The breaks are required to be free of the characteristics of working time so that it is a period which the employee knows in advance will be uninterrupted and which he or she can use as he or she pleases.

Based on the uncontested evidence of the Complainant, I find that the Respondent did not ensure that the Complainant received her breaks.

Based on the uncontested evidence of the Complainant, I find this complaint to be well founded. I direct the Respondent to pay the Complainant compensation in the amount of €500.

The Complainant submits that she did not receive her annual leave entitlements. The Complainant submits that she took annual leave once from 11th to 25th July 2018 but was never paid for this annual leave. She never received any annual leave payments that were due and owing to her.

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

The Organisation of Working time Act stipulates:

19. Entitlement to annual leave

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was—

(a) at his or her place of work or at his or her employer's disposal, and

(b) carrying on or performing the activities or duties of his or her work.]

(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.

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. The cognisable period for the within complaint, having regard to the time limits set out in the Workplace Relations Act, 2015 is 13th September 2018 to 12th March 2019. 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 1st April 2018 to 12th March 2019.

I note that the Complainant was on sick leave from 12th October 2018 until 13th September 2019. She did not return to work following the sick leave.

Section 20 of the Act provides:

(2) The pay in respect of an employee's annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and

(c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

Based on the uncontested evidence of the Complainant, I find that she took two weeks of annual leave between 11th and 25th July 2018 and did not receive her entitlement in that regard.

As the Complainant remains in employment of the Respondent the option to be paid in lieu of annual leave does not arise.

Based on the uncontested evidence of the Complainant I find that this complaint is well founded in respect of the two weeks of annual leave from 11th to 25th July 2018. I direct the Respondent to pay the Complainant €756 net the economic loss in respect of the annual leave taken and not paid. I also direct the Respondent to pay the Complainant €500 for breach of her rights under the Act.

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

At the adjudication hearing, the Complainant confirmed that his claim is a duplication of CA-00026986-006 above.

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

In view of my decision above, I declare this complaint not to be well founded.

I declare this complaint not to be well founded.

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

The Complainant submits that she worked one public holiday in August 2017 but did not receive any payment for same. In respect of other public holidays, the Complainant did not work but did not receive her entitlements.

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

The Act states:

“21. Entitlement in respect of public holidays

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.”

22(1) The rate—

(a) at which an employee is paid in respect of a day off under section 21, and

(b) of an employee’s additional day’s pay under that section, shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.

(2) For the purposes of section 21, time off granted to an employee under that section or section 19 shall be regarded as time worked by the employee.”

Accordingly, the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. 475/1997) (hereinafter ‘the Regulations’) provides for the calculation of public holiday pay (along with the calculation of holiday pay).

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. The cognisable period for the within complaint, having regard to the time limits set out in the Workplace Relations Act, 2015 is 13th September 2018 to 12th March 2019.

There were four public holidays falling in the cognisable period, namely last Monday in October, Christmas Day, St, Stephen’s Day and New Year’s Day.

Based on the uncontested evidence of the Complainant, I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €302.40 in respect of the public holidays’ entitlements. In addition, I direct the Respondent to pay the Complainant the sum of €300 in compensation for breach of her rights under this Section of the Act.

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

At the adjudication hearing, the Complainant confirmed that his claim is a duplication of CA-00026986-008 above.

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

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

I declare this complaint not to be well founded.

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