ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00023460
Parties:
| Complainant | Respondent |
Anonymised Parties | Counter Assistant | Food Outlet |
Representatives |
| Lisa Weatherstone BL, Peninsula |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00029923-001 | 29/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029923-002 | 29/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00029923-003 | 29/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029923-004 | 29/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00029923-005 | 29/07/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00029923-006 | 29/07/2019 |
Date of Adjudication Hearing: 22/10/2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following 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 was employed as a Counter Assistant from 20th April 2015 to 23rd March 2019. She was paid either €180 or €240 per week (in dispute) . She has claimed that she did not get a written contract of employment, did not get paid for holidays, Public holidays, did not get breaks, was paid less than the minimum wage, was unfairly dismissed and did not get minimum notice. |
1)Terms of Employment (Information) Act CA 29923-001
Summary of Complainant’s Case:
The Complainant stated that she did not receive a written statement of her terms and condition of employment. She has sought compensation. |
Summary of Respondent’s Case:
The Respondent accepts that no contract of employment was issued. She was not prejudiced by not receiving a contract of employment. They cited the EAT case Sergejus Udalous v South Eastern Vegetable Producers Ltd TE224/2012 in support. |
Findings and Conclusions:
I note that the Respondent has accepted that they did not issue a written statement of the terms and conditions of employment. Therefore, I find that this complaint is well founded. I do not accept the Respondent’s position that the Complainant was not prejudiced by this. I find that there were fundamental differences concerning the hours of work, rate of pay and weekly pay that a contract of employment would have clearly established. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that this complaint is well founded.
I require the Respondent to pay the Complainant compensation of €650 to be paid within six weeks of the date below.
2) Organisation of Working Time Act CA 29923-002/003
Summary of Complainant’s Case:
CA 29923 -002 Holiday pay She stated that she got holidays but was never paid for them. CA 29923-003 Public Holidays She worked Tuesdays, Fridays and Saturdays 3.30pm to 12.30am. She was never rostered to work on a Public Holiday. She stated that she was never compensated for Public Holidays. Breaks: she stated that she did not get breaks |
Summary of Respondent’s Case:
CA 29923 -002 Holiday pay She worked two days a week, Tuesdays and Saturdays and was paid €180 per week. The P60 for 2018 shows earnings of €9,260 which amounts to €178 per week for 52 weeks in the year. This shows that she was paid for her holidays. CA 29923-003 Public Holidays She was not compensated for Public Holidays. Breaks were not claimed on her claim form and so this complaint is not properly before the hearing. They stated that the Complaint is claiming for breaches of this Act from April 2015. These complaints are framed in such a way that they are out of time. |
Findings and Conclusions
Time limits
Sec 41(6) of the Workplace Relations Commission states, Subject to subsection (8), 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.
Sec 41 (8) 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 Claimant has claimed that she did not get holiday pay and was not compensated for Public Holidays throughout her employment.
She has claimed for alleged breaches of the Act that are clearly outside the normal 6-month time limits that apply as they refer back as far as April 2015.
The question of time limits became the subject of a High Court decision in Moran v Employment Appeals Tribunal [2014] IEHC 154 and Health Service Executive v McDermott [2014] IEHC 331 where the High Court was asked to consider the meaning “within the period of 6 months beginning on the date of the contravention to which the complaint relates”. These High Court judgments confirm that, having regard to how the Complainant herein described his claim (from effect from 2010) which is a period that is well beyond the six-month statutory period provided in the Act.
Therefore, this claim is out of time. Mr Justice Hogan relying upon the Moran decision in the McDermott decision held as follows, “This was because the complaint as formulated by the claimant in that case related to a time period of alleged contraventions which was plainly time barred”.
Therefore, I find that this claim relates to a period of time well beyond the six-month statutory period provided for in the Act. The claim must fail as being out of time and cannot be considered by the Adjudication Officer.
I find that this claim is not well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and accordance with the relevant redress provisions under Schedule 6 of that Act.
For the above stated reasons, I have decided that the claims as presented to the Commission are out of time.
I have decided that this complaint is not well founded and so it fails.
3)Payment of Wages Act CA 29923-005
Summary of Complainant’s Case:
She stated that she is paid less than the correct rate of pay. She should have received €9.80 per hour and only received €8.99 per hour since January 1st 2019.
|
Summary of Respondent’s Case:
The Complainant worked two days a week Tuesdays and Saturdays, a total of 18 hors per week. She was paid €10 per hour earning €180.00 per week. This claim is rejected. |
Findings and Conclusions:
I note that she was paid cash in hand.
I note that the P60 for 2018 shows a total earning of €9,260 which equates to €178 per 52 weeks in the year.
I note the pay slips produced at the hearing show earnings of €180.00 per week.
I note that the Respondent produced an Income Sheet for the Department of Employment Affairs and Social Protection, which shows that the Complainant filled out the sheet and it stated that she was earning €180.00 per week for 2 days a week.
I note that the Complainant confirmed that she completed that sheet but that she was told to do so.
In view of the conflict of evidence in this case and the confirmation by the Complainant that she completed the form for the Department of Employment Affairs and Social Protection and the P60 details, on the balance of probability I find that the Complainant was paid €10.00 per hour for 18 hours per week amounting to a gross pay of €180.00.
I find that this complaint is not 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. For the above stated reasons, I have decided that this complaint is not well founded and so it fails. |
4)Unfair Dismissals ACT CA 29923-004
The matter of dismissal was in dispute
Summary of Complainant’s Case:
She stated that Social Welfare had been reviewing her job seeker’s allowance. She requested payslips from the owner. When she got them, she noticed that there was incorrect information on them. She asked the owner and he replied that it was to do with the tax man. She was concerned that social welfare would reduce her allowance.
She queried with the owner why new staff were being paid the same as what she is paid. She asked for a rise in pay. He told her if she didn’t like it then he pointed to the door and told her she could go. So, she left the employment. She thinks that she was dismissed, she can’t be sure. |
Summary of Respondent’s Case:
The Respondent stated that the Complainant resigned her position. She was not dismissed. He had to close the business until he got cover for her, so it would not make sense to dismiss her. This claim is rejected. |
Findings and Conclusions:
I note the conflict of evidence. I note that the Complainant is unsure if she was dismissed. If I were to accept the Complainant’s version then she was given a choice by the Respondent that if she didn’t accept the refusal to increase her pay she could leave, which she did. On the balance of probability, I find that the Complainant left the employment with immediate effect and so she resigned her position. I find that no dismissal took place. I find that this claim is not well founded. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the above stated reasons, I have decided that this complaint is not well founded and so it fails.
5)Minimum Notice & Terms of Employment Act CA 29923-006
Summary of Complainant’s Case:
The Complainant stated that she did not get minimum notice when she was instantly dismissed. |
Summary of Respondent’s Case:
The Respondent stated that she resigned her position. They stated that as no dismissal took place then she has no entitlement to minimum notice. The claim is rejected |
Findings and Conclusions:
I refer to the decision under the Unfair Dismissals Act above. I have found that there was no dismissal. Therefore, I find that she has no entitlement to minimum notice.
|
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.
For the above stated reasons, I find that this complaint is not well founded and so it fails.
Dated: 29th November 2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Minimum notice /dismissal |