ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00019569

Parties:

	Complainant	Respondent
Anonymised Parties	Bar Tender	A Bar

Representatives

Complaints:

Act	Complaint 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-00026029-002	05/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026029-003	05/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026029-006	05/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00026029-007	05/02/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00026029-008	05/02/2019

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, 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 complaints.

Background:

The complainant worked with the respondent from 10th September 2018 and employment ceased on 6th March 2019.

Summary of Complainant’s Case: CA-00026029-002

The complainant detailed that he is owed compensation for working 50 hours on Sundays within the cognisable period.

Summary of Respondent’s Case: CA-00026029-002

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-00026029-002

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 €165.

Summary of Complainant’s Case: CA-00026029-003

The complainant detailed that he is owed annual leave for working approximately 443 hours during the cognisable period.

Summary of Respondent’s Case: CA-00026029-003

Findings and Conclusions: CA-00026029-003

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 36 hours during the cognisable period from 6th August 2018 to 5th February 2019. I find that the claim is well founded, and the respondent should pay the complainant €360.

Summary of Complainant’s Case: CA-00026029-006

The complainant detailed that he is owed for the benefit of working 3 hours on January 1, 2019.

Summary of Respondent’s Case: CA-00026029-006

Findings and Conclusions: CA-00026029-006

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 €30.

Summary of Complainant’s Case: CA-00026029-007

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

Summary of Respondent’s Case: CA-00026029-007

Findings and Conclusions: CA-00026029-007

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.

Summary of Complainant’s Case: CA-00026029-008

The complainant detailed that he did not receive breaks 50% of the time that he worked during the cognisable period.

Summary of Respondent’s Case: CA-00026029-008

Findings and Conclusions: CA-00026029-008

Section 25 of the Act requires an employer to maintain records of employees’ rest breaks and working time. Where it fails to keep such records the burden of proving compliance with the provisions of the Act lies with the employer.

The respondent did not attend. Having considered all the evidence accordingly I find that the claim is well founded and that the respondent failed to provide rest breaks during the cognisable period.

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-00026029-002

I find that the claim is well founded, and the respondent should pay the complainant €165.

CA-00026029-003

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

CA-00026029-006

I find that the claim is well founded and that the respondent should pay the complainant €30.

CA-00026029-007

I find that the complaint is well founded, and the respondent should pay the complainant €600.

CA-00026029-008

I find that the complaint is well founded, and the respondent should pay the complainant €250.

Dated: 11/06/2019

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Annual leave, public holidays, terms and conditions, Sunday premium, rest breaks, respondent did not attend