ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014163
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012 | CA-00018218-001 | 28/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00018218-002 | 28/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00018218-003 | 28/03/2018 |
Date of Adjudication Hearing: 05/09/2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or under Section 25 of the Protection of Employees (Temporary Agency Work) Act 2012 and/or Section 7 of the Terms of Employment (Information) Act 1994 and/or Section 27 of the Organisation of Working Time Act 1997] 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).
Summary of Complainant’s Case:
The claimant commenced employment with the respondent to work at a manufacturing site in Sligo initially as a Production Operative and later in Quality Control from the 18th.July 2016 .It was submitted that the claimant was not furnished with written terms and conditions of employment in accordance with Section 3 of the Terms of Employment (Information ) Act 1994.It was contended that the hirer’s Handbook which was furnished to the claimant was deficient with respect to details of the names and address of the hirer’s location , the duration of the contract , payment calculation system , hours of work and annual leave. The claimant submitted that the respondent was in breach of the Protection of Employees (Temporary Agency Work ) Act 2012 by treating him less favourably to a direct hire employees with respect to pay and conditions of employment.He submitted a named comparator who was a direct employee of the hire company (Ms.MC) and contended that while his gross earnings were €21,000 per annum , the comparator was on €28,000 pa for doing the same work..It was submitted that the claimant incurred a loss of €6,582.36 from the 1st.October 2017 to the 5th.Sept. 2018 and a loss of €8,397.82 from the 1st.Oct. 2016 to the 1st.October 2017.
It was submitted that the respondent was in breach of the Organisation of Working Time Act 1997 for failing to pay the claimant the correct hourly rate of €13.80 per hour for his holiday pay.While some loss had been made good by the Company by way of an additional payment of €278.83 on the 11th.May 2018 , it was submitted a total payment of €576-77 remained outstanding for the years 2016 and 2017. |
Summary of Respondent’s Case:
The respondent did not attend and was not represented at the hearing |
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.
Section 25 of the Protection of Employees (Temporary Agency Work) Act 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have reviewed the evidence presented at the hearing and noted the absence of the respondent.The claimant indicated that he only belatedly became unaware of the more favourable terms and conditions applying to his direct hire colleagues . It was submitted that the lesser payment than that paid to the claimant’s comparator for annual leave also constituted a breach of the Act.
On the basis of the uncontested evidence of the claimant , I am upholding the complaint and require the respondent to pay the claimant €14,000 compensation. I further require the respondent to revise their terms and conditions of employment to ensure full compliance with the provisions Section 6 of the Act.
Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have reviewed the evidence presented at the hearing and accept that the respondent’s handbook is deficient with respect to details regarding annual leave entitlement and the expected duration of the contract and accordingly I am upholding the complaint.I require the respondent to pay the claimant €600 compensation.
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
I have already addressed this element of the complaint in the context of basic pay under the Protection of Employees (Temporary Agency Work) Act 2012 and accordingly will not be issuing a decision under this Act.
Dated: 17/01/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea