ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00013486
Parties:
| Complainant | Respondent |
Anonymised Parties | A Cleaner | A cleaning company |
Representatives | Marius Marosan | None |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00017747-001 | 05/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00017747-002 | 05/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act | CA-00017747-003 | 05/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00017747-004 | 05/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00017747-005 | 05/03/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00017747-006 | 05/03/2018 |
Date of Adjudication Hearing: 23/01/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 5th March 2018, the complainant referred complaints to the Workplace Relations Commission. The complaints were scheduled for adjudication on the 23rd January 2019. The complainant attended the adjudication and was represented by Marius Marosan.
At the time the adjudication was scheduled to commence, it became apparent that there was no attendance by or on behalf of the respondents. I verified that the correspondence in relation to the hearing was sent to the address of the registered company. I waited some time to accommodate a late arrival. As there was no appearance by or on behalf of the respondents, I proceeded with the adjudication in their absence.
In accordance with section 41 of the Workplace Relations Act, 2015 and section 8 of the Unfair Dismissals Acts, 1977 – 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.
Summary of Complainant’s Case:
The complainant outlined that she commenced employment as a cleaner on the 10th November 2016. Her role involved cleaning offices, a gym and a crèche. There were two transfer of undertakings during her employment. The transfers happened because of a Revenue incentive after the first year of trading. She was not provided with a contract of employment or a statement of the terms of her employment. She identified the respondent listed on the pay slip and its company number.
The complainant said that she worked 27 hours per week. She was paid €10.05 per hour throughout her employment. On 1st December 2017, the rates of pay set out in the Contract Cleaning SEO provided that the rate of pay was €10.40 per hour. The complainant said that her pay did not increase to €10.40 per hour. She incurred a shortfall for the hours she worked from the 1st December 2017 to the 16th February 2018.
In respect of the Payment of Wages claim, the complainant said that she is owed €2,396 in wages as well as 40.5 hours for February (€421.20).
The complainant said that she availed of paid annual leave for 71 hours but was due 81 hours in total. The only holiday she took was one month’s holiday in August 2017. The complainant outlined that she was never paid for public holidays and was due pay for four public holidays (the October 2017 public holiday, Christmas Day, St Stephen’s Day and New Year’s Day).
The complainant outlined that she resigned on the 16th February 2018 because the respondent stopped paying her. She was not paid for December 2017 and January 2018 as well as the days she worked in February. She continued to work her full hours per week but was not paid. She commenced another role in February 2018. She claimed redress of four weeks’ pay. |
Summary of Respondent’s Case:
The respondent did not attend the adjudication, nor deny the complainant’s claim in respect of each of the six complaints. |
Findings and Conclusions:
The complainant referred six complaints to the Workplace Relations Commission. The respondents did not attend to contradict the complainant’s evidence. I note the dicta of the Supreme Court in Glegola v Minister for Social Protection [2018] IESC 65, where the Court held: “The fact that one party does not appear in proceedings should not mean that the opposing party’s contention is accepted by default and without question. There is, in my view, an obligation on any decision-maker to satisfy themselves that an applicant’s case is well founded, particularly where there is an obligation on the part of the State, or another party, not represented in the proceedings to satisfy the award.” I, therefore, enquired into the complainant’s case in respect of each of the six complaints.
CA-00017747-001 This is a complaint pursuant to the section 45A of the Industrial Relations Act following the adoption of the Contracting Cleaning Sectoral Employment Order (S.I. 548/2016). The respondent did not pay the increased pay due to the complainant as of the 1st December 2017. The SEO provides protections to employees in respect of pay, but also sick pay, overtime and transfer of undertakings. The respondents did not comply with the requirements of the SEO and I find that the complaint is well-founded. In the circumstances, I award redress of €500. CA-00017747-002 This is a complaint pursuant to the Unfair Dismissals Act. The complainant resigned on the 16th February 2018. She had not been paid for over two months, despite continuing to work. This is a fundamental breach of the contract of employment, where the employee works in order to be remunerated. The non-payment of wages in the circumstances repudiated the contract of employment. The complainant was entitled to consider herself to have been dismissed. The complaint of unfair dismissal is well-founded. Given that the complainant found alternative employment, I award the complainant four weeks’ redress, i.e. €1,123.30.
CA-00017747-003 This is a complaint regarding the failure of the respondent to supply the complainant with a statement of her terms of employment. The complainant outlined that she did not receive a statement, as required by either S.I. 548/2016 or the Terms of Employment (Information) Act. I find that the complaint is well-founded and award redress of four weeks’ pay, i.e. €1,123.30.
CA-00017747-004 This is a complaint pursuant to the Organisation of Working Time Act for unpaid annual leave. The complainant set out that she is due 10 hours of additional annual leave. I find that the complaint is well-founded. Taking account of the importance of annual leave as a health and safety measure, I award redress of €200.
CA-00017747-005 This is a complaint pursuant to the Organisation of Working Time Act for unpaid public holiday pay. The complainant worked four public holidays for which she was not paid. I find that she is entitled to redress of €200 for this breach.
CA-00017747-006 This is a complaint pursuant to the Payment of Wages Act. The complainant sets out that she was not paid from the 1st December 2017 to the 16th February 2018. She was due wages of €3,088.88. I find that the complaint is well-founded, and the complainant is entitled to redress for the wages due. |
Decisions:
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.
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.
CA-00017747-001 I find that the complaint pursuant to section 45A of the Industrial Relations Act is well-founded and I award redress of €500.
CA-00017747-002 For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well-founded and I award redress of €1,123.30.
CA-00017747-003 I find that the complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €1,123.30.
CA-00017747-004 I find that the complaint pursuant to the Organisation of Working Time Act in respect of annual leave is well-founded and the respondent shall pay to the complainant redress of €200.
CA-00017747-005 I find that the complaint pursuant to the Organisation of Working Time Act in respect of public holiday leave is well-founded and the respondent shall pay to the complainant redress of €200.
CA-00017747-006 I find that the complaint pursuant to the Payment of Wages Act is well-founded and the respondent shall pay to the complainant redress of €3,088.88. |
Dated: October 9th 2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Contract Cleaning SEO Repudiation of contract / non-payment of wages |