ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004618

Parties:

	Complainant	Respondent
Anonymised Parties	A Former CE Scheme Employee	An Unemployment Centre

Representatives

Richard Grogan & Associates

Peninsula Group Limited

Complaints:

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-00006333-001	27/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997	CA-00006333-002	27/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994	CA-00006333-003	27/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003	CA-00006333-004	27/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003	CA-00006333-005	27/07/2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997	CA-00006333-006	27/07/2016

Date of Adjudication Hearing: 09/07/2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

The Complainant referred the aforesaid complaints to the Workplace Relations Commission (hereinafter the ‘WRC’) on 27th July 2016. These complaints had to be reheard for operational reasons. By way of background, the Complainant had been employed by the Respondent under a Community Employment (CE) Scheme on rolling contracts until she was made redundant. She complained of breaches of various statutory employment rights including unlawful deductions from her wages contrary to the Payment of Wages Act 1991, non-compliance with Section 3 of the Terms of Employment (Information) Act 1994 and an incorrect rate of pay for Public Holidays and non-notification of start/finish working times under the Organisation of Working Time Act 1997. She also contended that the Respondent had contravened her rights under the Protection of Employees (Fixed-Term Work) Act 2003. The Respondent refuted all of these complaints and contended that as an employee under a CE Scheme, Section 2 of the Protection of Employees (Fixed-Term Work) Act 2003 expressly excluded her employment from its application. It is common-case that identical complaints pre-dating and post-dating these complaints were heard and determined by another Adjudication Officer in favour of this Respondent and were under appeal to the Labour Court at the time of this hearing. The only distinction between the complaints already determined by the WRC and the instant complaints is that they relate to a different time reference period. Additionally, the Complainant had pursued identical/similar complaints against other named Respondents which were also under appeal before the Labour Court. The linked complaints include ADJ-00001081, ADJ-00001089, ADJ-00001093, ADJ-00007406, ADJ-00008494, ADJ-00010717 and ADJ-000011061.

The Director General referred these complaints to me in accordance with Section 41 of the Workplace Relations Act 2015. I inquired into these complaints and gave the Parties an opportunity to be heard by me and to present any relevant evidence. At the hearing, the Representatives requested decisions in relation to these complaints so as the Labour Court could deal with all appeals arising together. Whilst acknowledging that I was not necessarily bound by the prior decisions of the WRC they indicated that in circumstances where identical complaints were already under appeal before the Labour Court, a consistent approach was preferable. This was not to be taken as a concession of the Respondent’s position which the Complainant clearly opposed. In the circumstances they declined to provide any evidence and no legal basis was proffered on behalf of the Complainant as to why I should not follow the decisions already made on the same facts. The only change in circumstances since the issuing of the prior decisions was the fact that the Complainant had been made redundant from her employment with the Respondent but no additional complaint/s arose from same. Cognisant of my independence, in the absence of any evidence or legal basis for varying the prior decisions of the WRC, I am satisfied that these complaints should follow suit and accordingly dismiss the aforesaid complaints as set out hereunder.

CA-00006333-001 – Unlawful deductions from wages for last reference period prior to date of referral contrary to the Payment of Wages Act 1991

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid, I am satisfied that there is no evidential or legal basis for varying the decision/s already made on the same facts and appealed to the Labour Court and accordingly, dismiss same as being unfounded.

CA-00006333-002 – Incorrect rate of pay for Public Holidays for last reference period contrary to the Organisation of Working Time Act 1997

Decision:

CA-00006333-003 – Statement in writing of terms of employment did not comply with Section 3 of the Terms of Employment (Information) Act 1994

Decision:

CA-00006333-004 – Number of successive fixed-term contracts in contravention of the Protection of Employees (Fixed-Term Work) Act 2003

Decision:

CA-00006333-005 – Not informed of employment/training opportunities in contravention of the Protection of Employees (Fixed-Term Work) Act 2003

Decision:

CA-00006333-006 – Not notified of starting and finishing times of hours of work in advance contrary to the Organisation of Working Time Act 1997

Decision:

Dated: 22nd July, 2019

Workplace Relations Commission Adjudication Officer: Aideen Collard