ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | Farm Operative | Farm Owner |
Representatives | Self represented |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00021018-001 | ||
CA-00021018-002 | ||
CA-00021018-003 | ||
CA-00021018-005 | ||
CA-00021018-006 | ||
CA-00021018-007 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of theRedundancy Payments Acts 1967 - 2014 and Section 27 of the Organisation of Working Time Act 1997 and Section 7 of the Terms of Employment (Information) Act 1994 and Section 6 of the Payment of Wages Act 1991 following referral 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 submitted 6 separate complaints regarding (1) entitlement to correct redundancy payment, (2) entitlement to paid public holidays, (3) entitlement to paid annual leave, (4) wages not properly paid, (5) change in terms of employment and (6) entitlement to compensation for Sunday working. |
Summary of Complainant’s Case:
The Complainant stated that he worked on the farm for 30 years from February 1988 to February 2018. He was made redundant when the owners of the farm leased out the land. When he received his redundancy payment it was based only on a little over 9 years. He requires a decision on the correct statutory redundancy entitlement. He disputes the Respondent’s claim that he was self employed prior to 2008. The Complainant worked on the same farm for 30 years without any notified change in employment status and he is at a complete loss to understand how the Respondent can make out any claim that he was self employed at any time. The Complainant contends that he was never given any compensation for working on public holidays. The Complainant contends that he received only one week annual leave each year. The Complainant states that he was paid €1,560 per month until 2008 when payment of wages became sporadic. He submitted evidence to show that he was underpaid by €52,090 from 2008 to 2018. The Complainant contends that he was never informed that his employment status changed from employee to self employed and this was a breach of the Terms of Employment (Information) Act. The Complainant contends that he was never compensated for working Sundays. |
Summary of Respondent’s Case:
The Respondent submitted a detailed written submission summarised as follows: CA-00021018-001 Redundancy claim The Complainant commenced employment with the Respondent on 1st January 2009. He received notice of his redundancy on 12th January 2018. His employment terminated on 9th February 2018. His gross weekly wage at the date of his redundancy was €358. His redundancy payment of €6,887.92 was calculated accordingly. It is submitted that the Complainant was an independent contractor providing casual labour prior to his employment with the current Respondent in this case. CA-00021018-002 Public Holiday entitlements As recognised in Part III of the Employment Regulation Order (Agricultural Workers Joint Labour Committee) 2010, the nature of the industry requires that employees work on public holidays. In this event, employees are to be paid for work done. It is contended that the Complainant worked his own hours at his own discretion and he chose to feed animals on weekends and public holidays but then took weekends off in lieu on the basis that he could treat attendance on a weekend as worth a multiple of week days. He attended for work on average three to five days a week, and took days off at his choice. In so doing, he more than made up for attending for an hour on the three public holidays in winter. CA-00021018-003 Annual leave It is contended that the Complainant took holidays in accordance with Section 19 of the Organisation of Working Time Act 1997. He took one week off at a time of his discretion during the summer, nine days at Christmas and at lease two weeks in days and half days at his choice during the year. CA-00021018-005 Pay The terms of the Complainant’s contract of employment provided for payment of wages in accordance with the Agricultural Workers Joint Labour Committee minimum rate for an experienced agricultural worker. The P60s issued to him certifying his pay and deductions record that he was paid in full the amount due for the six years prior to this complaint. The Respondent does not accept any shortfall and in any case any shortfall alleged in the period between 2009 and 2012 is statute barred. CA-00021018-006 Terms and Conditions of Employment The Complainant’s complaint appears to be that he did not know that he was self-employed prior to 2009. It is submitted that the Complainant was employed by the Respondent from 1st January 2009 and his previous employment status was not the Respondent’s responsibility. The Complainant elected to work as a contractor prior to 2009 and it was his choice to work as such and it was his choice to enter into an employment relationship with the Respondent from 1st January 2009. Furthermore it is submitted that any complaint arising outside of the employment context dating prior to 2009 is both outside the jurisdiction of the WRC and is statute barred. |
CA-00021018-007 Sunday pay.
As recognised in Part III of the Employment Regulation Order (Agricultural Workers Joint Labour Committee) 2010, the agricultural industry includes a wide range of activities which are weather dependent, seasonal, unpredictable and often require seven day work arrangements. The Complainant had a very flexible work arrangement and the Respondent did not require him to work full working weeks which made up for any Sunday working.
Findings and Conclusions:
CA-00021018-001 Redundancy claim The complaint here is that the Complainant did not receive his full statutory entitlement to a redundancy payment. Schedule 3 of the Redundancy Payments Act 1967 provides the amount of lump sum employees are entitled to in a redundancy situation as follows: “(1) The amount of the lump sum shall be the equivalent to the aggregate of the following: (a) the product of two weeks of the employee’s normal weekly remuneration and the number of years of continuous employment..with the employer by whom the employee was employed on the date of dismissal.., and (b) a sum equivalent to the employee’s normal weekly remuneration.” In the same schedule continuous employment is defined as : “4. For the purposes of this schedule employment shall be taken to be continuous unless terminated by dismissal or by the employee’s voluntarily leaving his employment”. In this instant case, I note that the Complainant has worked on the same farm for the Respondent’s late father from 1988. His employment can be deemed to have been transferred to the current Respondent by transfer of undertakings when the farm was transferred into the Respondent’s name. I do not accept the Respondent’s arguments that the Complainant was a self employed contractor from 1997 to 2008. I find that the designation of the Complainant as a self employed contractor at the time, done without consultation or agreement with the Complainant was therefore bogus. I find the Complainant’s claim to full redundancy payment to be well founded. I find his redundancy payment entitlement was €21,931. As he was paid €6,888, I require the Respondent to pay to the Complainant the balance of €15,043. |
CA-00021018-002 Public Holiday claim under Organisation of Working Time Act 1997
This complaint was received on 6th August 2018. Section 41 (6) of the Workplace Relations Act 2015 provides that
“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”.
Section 41 (8) provides:
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 effect of this section and subsections is that the Complainant’s complaints in relation to the Organisation of Working Time Act 1997 can only be entertained for the cognisable period 7th February 2018 until the employment end date in this case, 9th February 2018, unless reasonable cause has been established to extend the time period back to 7th August 2017. The Labour Court in the seminal case Cementation Skanska v Carroll [WTC0338]addressed the issue of reasonable cause
“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 the 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 this instant case, the Complainant outlined his good working relationship with the Respondent’s late father and explained his reluctance to litigate against his employer given that he was over 30 years working for the farm. I accept this explanation as reasonable and agree to extend the time.
Section 21 of the Act provides that an employee shall be entitled, in respect of a public holiday, to a paid day off on the day, a paid day off within a month of that day, an additional day of annual leave or an additional day’s pay. No evidence was presented to me to prove that the Respondent had complied with the Act.
I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €358 being the monetary value of the five public holidays in the cognisable period - 7th August 2017, 30th October 2017, 25th December 2017, 26th December 2017 and 1st January 2018, together with €642 compensation for breach of the Act.
CA-00021018-003 – Claim for annual leave under the Organisation of Working Time Act 1997
This complaint was received on 6th August 2018. Section 41 (6) of the Workplace Relations Act 2015 provides that
“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”.
Section 41 (8) provides:
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 effect of this section and subsections is that the Complainant’s complaints in relation to the Organisation of Working Time Act 1997 can only be entertained for the cognisable period 7th February 2018 until the employment end date in this case, 9th February 2018, unless reasonable cause has been established to extend the time period back to 7th August 2017. The Labour Court in the seminal case Cementation Skanska v Carroll [WTC0338]addressed the issue of reasonable cause
“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 the 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 this instant case, the Complainant outlined his good working relationship with the Respondent’s late father and explained his reluctance to litigate against his employer given that he was over 30 years working for the farm. I accept this explanation as reasonable and agree to extend the time.
Section 19 of the Act provides that an employee shall be entitled to a period of paid annual leave “equal to –
(a) 4 working weeks in which he or she works at least 1,365 hours…
(b) one-third of o working week for each month in the leave year in which he or she works at least 117 hours, or
(c) 8 percent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks).”
No evidence was presented to me to prove that the Respondent had complied with the Act.
I find the complaint to be well founded. I have no evidence regarding the hours worked by the Complainant during the cognisable period. As provided for in Section 27 (3) (c) of the Act, I require the Respondent to pay to the Complainant the sum of €1,000 compensation for breach of the Act.
CA-00021018-005 Payment of Wages Act 1991
The Complainant submitted calculations for unpaid wages from 2008 – 2018. However, given the constraints of the time limits in the legislation as outlined above, I am confined to considering the evidence for the period 7th February 2018 until the employment end date in this case, 9th February 2018. Evidence supplied by the Accountant for the Respondent shows no shortfall in wages for that period. I do not find the complaint as it relates to the period covered by the Act to be well founded.
CA-00021018-006 Terms of Employment (Information) Act 1994
This complaint was received on 6th August 2018. Section 41 (6) of the Workplace Relations Act 2015 provides that
“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”.
Section 41 (8) provides:
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 effect of this section and subsections is that the Complainant’s complaints in relation to the Terms of Employment (Information) Act 1994 can only be entertained for the cognisable period 7th February 2018 until the employment end date in this case, 9th February 2018, unless reasonable cause has been established to extend the time period back to 7th August 2017.
The Complainant’s complaint is that his employment status was changed without his knowledge or consent. This occurred in or around 1st January 2009. The complaint therefore is out of time.
CA-00021018-007 Sunday Working – Organisation of Working Time Act 1997
Section 14 of the Act provides that an employee who is required to work on Sundays shall be compensated if the fact is not otherwise taken into account in the determination of his or her pay. Statutory Instrument S.I. No 120/1990 also covers Sunday Working for Agricultural Workers. In this instant case, I have not been presented with evidence that the Complainant was compensated for Sunday working. I find his complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €1,000 compensation.
Decision:
CA-00021018-001 Redundancy claim
I find the Complainant’s claim to full redundancy payment to be well founded. I find his redundancy payment entitlement was €21,931. As he was paid €6,888, I require the Respondent to pay to the Complainant the balance of €15,043.
CA-00021018-002 Public Holiday claim under Organisation of Working Time Act 1997
I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €358 being the monetary value of the five public holidays in the cognisable period - 7th August 2017, 30th October 2017, 25th December 2017, 26th December 2017 and 1st January 2018, together with €642 compensation for breach of the Act. The total sum of €1,000 is to be paid to the Complainant by the Respondent.
CA-00021018-003 – Claim for annual leave under the Organisation of Working Time Act 1997
I find the complaint to be well founded. I require the Respondent to pay to the Complainant the sum of €1,000 compensation for breach of the Act.
CA-00021018-005 Payment of Wages Act 1991
I do not find the complaint as it relates to the period covered by the Act to be well founded.
CA-00021018-006 Terms of Employment (Information) Act 1994
The complaint is out of time.
CA-00021018-007 Sunday Working – Organisation of Working Time Act 1997
I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €1,000 compensation.
Dated: 14th May 2019
Workplace Relations Commission Adjudication Officer: