ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019695
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Retail Butcher |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00026049-001 | ||
CA-00026049-002 | ||
CA-00026049-003 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 andfollowing 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 commenced employment with the Respondent, a retail butcher, on 28 July 2018, in the role of a butcher.
On 5 February 2019, the Complainant submitted three complaints to the Workplace Relations Commission under the following legislation:
1. National Minimum Wage Act, 2000 (complaint reference: CA-00026049-001) 2. Terms of Employment (Information) Act, 1994(complaint reference: CA-00026049-002) 3. Organisation of Working Time Act, 1997 (complaint reference: CA-00026049-003)
These complaints are the subject of this investigation/adjudication. |
Summary of Complainant’s Case:
CA-00026049-001 – National Minimum Wage Act The Complainant submitted that when he accepted the position with the Respondent, it was verbally communicated to him that he would be working six days a week for a wage of €400 per week. However, the Complainant submitted that he was never told that he would be working between 50 and 60 hours per week. According to the Complainant’s submission, working on average 50/60 hours per week worked out at around €7 per hour, which is less than the minimum wage.
The Complainant submitted that when he raised the issue with the Respondent’s wife, she insisted that the he should wait until the manager came back from leave at which point the matter could be discussed. According to the Complainant, where he discussed the matter with the manager, he was informed that this was what had been agreed to, as his pay was more on a salary basis. The Complainant submitted that he did not pursue the matter any further at that time, due to the fact that he was applying for a mortgage.
According to the Complainant’s submission, he subsequently required a form to be filled, by his employer, which set out his hourly rate and weekly payments. The Complainant further stated that he also requested payslips at this point in time. According to the Complainant, two weeks went by during which he heard nothing from the Respondent. He further submitted that, as the Respondent was on 10 days leave at the time, he requested the manager to get in touch with the accountant for the payslips and the confirmation of weekly pay.
The Complainant submitted that as he had not received any response, he approached the Respondent on his return from leave. The Complainant stated that the Respondent got aggressive about the matter. According to the Complainant, some two weeks later, he received the documents he was seeking and while these confirmed his weekly wage at €400, they did not confirm the number of hours worked.
CA-00026049-002 – Terms of Employment (Information) Act According to the Complainant’s submission, after a few weeks of employment, he approached the manager about a contract of employment. The Complainant submitted that, in response, the manager stated: “we don’t do contracts because if we ask someone to clean the bathroom, for example, they can state that it’s not in the contract, so they don’t have to do it”.
The Complainant submitted that he never received a contract or even an acknowledgement that he would be receiving one.
CA-00026049-003 – Organisation of Working Time Act The Complainant submitted that, at the beginning of 2019, he had a discussion with the Respondent regarding holiday pay for the previous year. According to the Complainant’s submission, the Respondent seemed quite confused about holiday pay and questioned why he was raising the issue. The Complainant stated that the Respondent informed him aggressively that he was too busy to deal with the matter, but they could discuss at the next time they met.
According to the Complainant’s submission, when he next raised the issue, the Respondent advised him that he did not have to give holiday pay for another six months, when he (the Respondent) would have been working there for a year. However, the Complainant submitted that in the absence of a contract of employment it was very uncertain whether he would ever get his holiday pay. In addition, the Complainant stated that, as the Respondent was intending to retire from the business, he was concerned he would not get his payment. |
Summary of Respondent’s Case:
The Respondent was represented at the Hearing by an individual who worked in the business during the period to which the Complainant’s complaints relate and who had recently taken over the running of the business from the previous owner.
CA-00026049-001 – National Minimum Wage Act The Respondent strongly disputed the Complainant’s calculation of actual hours worked in relation to his complaint under this heading. According to the Respondent, the Complainant worked a basic 7 hours per day/42 hours per week, which when calculated against his weekly wage, give an hourly rate in excess of the minimum wage.
CA-00026049-002 – Terms of Employment (Information) Act The Respondent conceded that the Complainant had not been provided with a Contract of Employment, as it was initially intended that his employment would be for a short period.
CA-00026049-003 – Organisation of Working Time Act The Respondent did not make any specific submission under this particular heading. |
Findings and Conclusions:
CA-00026049-001 – National Minimum Wage Act At the oral hearing, the Complainant submitted that, when he commenced employment with the Respondent in July 2018, he was working from 9:00am to 7:00/7:30am, Monday to Saturday. The Complainant further submitted that in mid-September 2018, his working week reduced to 4 days. According to the Complainant, there was a further reduction in his working hours in October 2018, from which point he was combining working 1 day per week with Social Welfare benefits for the remainder.
The Complainant submitted at the hearing that he was not in a position to accurately calculate what he believed he was owed because he had not kept a record of the hours he worked and he did not receive any payslips for this period.
Against this background and particularly in a context where the Complainant’s weekly working hours changed so significantly over the period of his employment, I can only conclude that his complaint in relation to payment of the minimum wage is not well founded and is therefore rejected. CA-00026049-002 – Terms of Employment (Information) Act Section 3 (1) of the Terms of Employment (Information) Act, 1994, places a requirement on an employer to provide an employee with a statement in writing containing details, as specified in that section of the Act, of the employee’s terms of employment. The employer is required to meet this obligation not later than two months after the commencement of the employee’s employment.
Having carefully considered the evidence presented, I am satisfied that the Complainant did not receive a Contract of Employment on commencement of his employment with the Respondent or at any time thereafter. While acknowledging that no contract had issued, the Respondent stated, in mitigation, that the Complainant’s employment was, initially, only due to last 5/6 weeks, as he was intending to return to college in September. However, in circumstances where the employment continued beyond the initial anticipated, the obligation remained with the Respondent to provide a statement of terms and conditions of employment in line with the 1994 Act.
Consequently, taking all of the above into consideration, I am satisfied that the Complainant’s complaint under the Terms of Employment (Information) Act is well founded and, in line with Section 7(2)(d) of the Act, I order the Respondent to pay to the Complainant an amount of €200 as just and equitable compensation having regard to all the circumstances.
CA-00026049-003 – Organisation of Working Time Act The Complainant claims that he is due €1,500/€2,000 in respect of unpaid holiday pay. Evidence was presented at the Hearing which suggested that the Complainant did receive payment in respect of annual leave. However, in the context of the confusion that existed in relation to the Complainant’s actual working hours (as already referred to under CA-00026049-001 above) it is not clear as to whether the amount paid covers the Complainant’s full entitlement in this regard.
Consequently, taking all of the above into consideration, I can only conclude that the Complainant’s complaint in relation to holiday pay is not well founded and is therefore reject. |
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.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out below my decisions in relation to the Complainant’s complaints:
CA-00026049-001 – National Minimum Wage Act I find that the Complainant’s complaint is not well founded and is, therefore, rejected.
CA-00026049-002 – Terms of Employment (Information) Act I find that the Complainant’s complaint is well founded and I award him an amount of €200 as fair and equitable compensation for the breach of his rights under the Terms of Employment (Information) Act, 1994.
The award in this case represents compensation and is not, therefore, subject to tax.
CA-00026049-003 – Organisation of Working Time Act I find that the Complainant’s complaint is not well founded and is, therefore, rejected. |
Dated: November 26th 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
National Minimum Wage Act Terms of Employment (Information) Act Organisation of Working Time Act |