ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00020132

Parties:

	Complainant	Respondent
Anonymised Parties	A Bar Tender	A Bar

Representatives

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026020-002	04/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026020-003	04/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026020-004	04/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00026020-005	04/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00026020-006	04/02/2019

Date of Adjudication Hearing: 01/05/2019

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

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

Background:

The complainant worked at the bar from 25th July 2018 until the bar ceased trading . He submitted his claim prior to the bar ceasing trading.

Summary of Complainant’s Case: CA-00026020-002

The complainant detailed that he is owed annual leave for 774 hours worked during the cognisable period and that his annual leave entitled was approximately 62 hours.

Summary of Respondent’s Case: CA-00026020-002

The respondent did not attend. The Respondent did not engage with the Workplace Relations Commission in relation to the complaint. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and in the circumstances, I find that their non-attendance without any acceptable explanation to be unexplained in the circumstances.

Findings and Conclusions: CA-00026020-002

Section 19 of the Act details that an employee should be entitled to 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):

The respondent did not attend. I am satisfied that the complainant accrued annual leave totalling approximately 62 hours during the cognisable period from 5th August 2017 to 4th February 2018. I find that the claim is well founded. The complainant was paid €10 per hour and is owed €620.

Summary of Complainant’s Case: CA-00026020-003

The complainant detailed that he is owed for 5 public holiday entitlements during the cognisable period, (namely August, October, December 25th, December 26th and January 1st) and that this amounted to approximately 36 hours.

Summary of Respondent’s Case: CA-00026020-003

Findings and Conclusions: CA-00026020-003

Section 21 details that an employee should be entitled to the benefit of the public holiday as follows:

“ (a) a paid day off on that day,

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

(d) an additional day’s pay:

The respondent did not attend. I find that the complainant did not receive his entitlement during the cognisable period and that the claim is well founded and that the complainant is owed €360.

Summary of Complainant’s Case: CA-00026020-004

The complainant detailed that he is owed compensation for working 91 hours over Sundays within the cognisable period.

Summary of Respondent’s Case: CA-00026020-004

Findings and Conclusions: CA-00026020-004

Section 14 of the Act details that

14.— (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

( d) by a combination of two or more of the means referred to in the preceding paragraphs.

The respondent did not attend. From the evidence, it would appear that the Complainant was not compensated for Sunday working and that this complaint is, therefore, well-founded.

I am of the view that a 33% premium is an appropriate premium to apply in this instance and award the complainant €300.30.

Summary of Complainant’s Case: CA-00026020-005

The complainant detailed that unlawful deductions were made by the respondent as he believed that tax was deducted but never paid to revenue. He was unable to quantify how much was involved.

Summary of Respondent’s Case: CA-00026020-005

Findings and Conclusions: CA-00026020-005

Section 5 (1) details that “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

( a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

( b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

( c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

( a) any act or omission of the employee, or

( b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writng of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.”

The respondent did not attend. The complainant did not provide any evidence to support his claim. I find his claim unfounded.

Summary of Complainant’s Case: CA-00026020-006

The complainant detailed that he never received terms and conditions of employment.

Summary of Respondent’s Case: CA-00026020-006

Findings and Conclusions: CA-00026020-006

Section 3 (1) of the Terms of Employment (Information) Act, 1994 states that 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 … terms of the employee's employment.”

The respondent did not attend. I must prefer the evidence of the complainant that the respondent has not met their obligations in providing the complainant with his terms and conditions of employment. I find the complaint well founded.

Decision:

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

CA-00026020-002

I find that the complaint is well founded and the respondent should pay €620 to the complainant.

CA-00026020-003

I find that the complaint is well founded and the respondent should pay the complainant €360.

CA-00026020-004

I find that the claim is well founded and the respondent should pay the complainant €300.30.

CA-00026020-005

I find that the complaint in unfounded.

CA-00026020-006

I find that the complaint is well founded and the respondent should pay the complainant €900.00.

Dated: 5th June 2019

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Terms and conditions, Sunday premium, annual leave, public holidays, deductions