Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Shop

Representatives

Citizens Information Service

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00028034-001

29/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028034-002

29/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028034-003

29/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00028034-004

29/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00028034-005

29/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00028034-006

29/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00028034-007

29/04/2019

The Complainant started her employment with the Respondent on 26th April 2011 as a Sales Assistant. Her employment ended by reason of redundancy on 24th January 2019.

The Complainant referred seven claims to the WRC on 29th April 2019.

The Complainant sought an extension of time in relation to the complaints on the basis that the Complainant did not know of the existence of the WRC. The Complainant also argued that if she had gone to the WRC earlier, she probably would have lost her job.

In respect of the claim under the National Minimum Wage Act, she noted that she approached the Respondent in September 2017 as she was aware of her rate of pay being below the national minimum wage but was told no increase would be given to her. The Respondent denied that such a request was ever made.

The Complainant requested that an extension be granted to cover the full period of employment. I explained to the Complainant the time limits applicable under each relevant piece of legislation. The Complainant expressed her dissatisfaction in that regard.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:

(6) 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.

(7) (d) in the case of a dispute relating to the entitlement of an employee under the National Minimum Wage Act 2000, it has been referred to the Director General after the expiration of the period of 6 months beginning on—

(i) the date on which the employee obtains a statement of his or her average hourly rate of pay in respect of the relevant pay reference period in accordance with section 23 of that Act,

(ii) in circumstances where that statement is not provided having been requested by the employee to be provided to him or her, the day after the date of expiration of the time within which that statement was required to be provided by the employer in accordance with that section,

(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 Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows; 

“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 an 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 the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Having carefully considered the basis for the Complainant’s request as presented by the Complainant, I find that the Complainant has not shown reasonable cause to empower me to extend the applicable time limits.

The Complainant submits that since she began working for the Respondent, she was paid €8.00 gross per hour. The Complainant disputed that she received a discount in the shop, as claimed by the Respondent. The Complainant submits that she sent a letter dated 20th March 2019 to the Respondent requesting “a schedule of my pay rates from 26/04/2011 up to 24/01/2019. Both dates inclusive.”

The Respondent concedes that the Complainant was paid €8 gross per hour. However, the Respondent argues that a discount was given to the Complainant on the shop purchases in the range of 10-15%, which should be taken into consideration.

The Respondent confirmed that it received the Complainant’s request for a pay schedule but no reply was provided to the Complainant.

This is a complaint pursuant to the National Minimum Wage Act. The Complainant asserts that she was paid below the national minimum wage during her employment with the Respondent. The Respondent does not deny the claim.

The National Minimum Wage Act, 2000 provides:

“23. Employee entitled to statement of average hourly rate of pay for pay reference period

(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of [Schedule 1],

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.

24. Disputes about entitlement to minimum hourly rate of pay

(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

[(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,”

There was no dispute that on 20th March 2019 the Complainant did request the statement provided for in Section 23 of the Act and made mandatory by Section 24, albeit she did request the statement for the period of her full employment with the Respondent rather than “any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request”. The Respondent confirmed that no such a statement was furnished to the Complainant.

The Respondent confirmed that the Complainant was paid €8 gross per hour.

The complaint was referred to the WRC on 29th April 2019. Therefore, the cognisable period is from 30th October 2018 to the termination date on 24th January 2019.

Based on the evidence presented by the Complainant and not disputed by the Respondent, in the period from 30th October 2018 to 31st December 2018 the Complainant worked and was paid for 106 hours resulting in an underpayment of €164.30 (at €1.55 per hour). In the period from 1st January to 24th January 2019 the Complainant worked and was paid for 35 hours resulting in an underpayment of €63 (at €1.80 per hour). In addition, she was paid 36 hours in respect of her 4 weeks’ notice resulting in an underpayment of €64.80.

I declare this complaint to be well founded and I direct the Respondent to pay the Complainant the sum of €292.10 gross in respect of the underpayment.

The Complainant submits that she never received any annual leave payment during her employment with the Respondent.

The Respondent concedes that no annual leave was given to the Complainant as the Respondent was not aware that any annual leave entitlements applied to the Complainant.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “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):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 23. Compensation on cesser of employment provides

“(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.”

The herein complaint was presented to the WRC on 29th April 2019 and therefore the cognisable period that may be investigated is 30th October 2018 to 24th January 2019 (the date of termination). I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from the 1st April 2018 to the 24th January 2019.

Based on the evidence presented by the Complainant, and not disputed by the Respondent, in the above period the Complainant has worked 520.5 hours and therefore would have accrued 41.64 hours of annual leave.

I declare this complaint to be well founded.

I direct the Respondent to pay the Complainant the sum of €408.07 for the economic loss in respect of the annual leave. In addition, I direct the Respondent to pay the Complainant €400 in compensation for breach of her rights under this Act.

The Complainant submits that she did not receive her public holidays entitlements. The Complainant submits that she never worked on a public holiday. Her normal working hours were 2.30pm-5.30pm three days a week (9 hours weekly in total).

The Respondent concedes that no public holiday entitlements were given to the Complainant.

On the basis of the evidence before me, I find that the Complainant did not receive her public holidays entitlements. There were three public holidays that fell in the cognisable period, namely 25th December 2018 (Christmas Day), 26th December 2018 (St Stephen’s Day) and 1st January 2019 (New Year’s Day).

The Act provides:

“21. Entitlement in respect of public holidays

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

22. Public holidays: supplemental provisions

(1) The rate—

(a) at which an employee is paid in respect of a day off under section 21, and

(b) of an employee's additional day's pay under that section,

shall be such rate as is determined in accordance with regulations made by the Minister for the purposes of that section.”

Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 S.I. No. 475 of 1997 outlines the relevant rates in respect of public holidays entitlements.

The parties confirmed that the Complainant’s normal weekly hours were 9 hours a week. Therefore, the Complainant would have been entitled to 1.8 hours per each public holiday.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €52.92 (5.4 hours x €9.80) for the economic loss in respect of the public holidays’ entitlements. In addition, I direct the Respondent to pay the Complainant €100 in compensation for breach of her rights under this Act.

The Complainant submits that she could work up to 8 hours a day with no breaks. The Complainant submits that on occasions when the owner of the business was off or on leave she could have worked up to 8 hours a day and receive no breaks.

The Respondent submits that the business is a small shop with one member of staff and the owner present. The Respondent claims that, due to the fact that the business was not busy, there was more downtime than work. The Respondent confirmed that the breaks were ordinarily spent in the shop.

Section 12 of the Organisation of Working Time Act, 1997 provides as follows:

“Rests and intervals at work

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

The evidence presented by the Complainant, which was not disputed by the Respondent, shows that the Complainant worked between 5 and 8 hours on some 9 occasions in the cognisable period. There was no dispute that the Respondent did not schedule any specific breaks for the Complainant over the course of her shift. It was left to the Complainant to take her breaks when possible. It was not disputed that the shop was quiet. The Respondent stated that there were periods of inactivity during which the Complainant could take her breaks. The Respondent accepted that the nature of the business was such that the Complainant was not at liberty to leave the shop unattended or close it for the duration of her break. The Complainant claims that the periods of inactivity during her shift were not breaks or rest periods.

Although each case will turn on its own facts and the level of autonomy afforded to an employee, ultimately the employer is responsible for ensuring compliance with the Organisation of Working Time Act, 1997.In The Tribune Printing & Publishing Group v Graphical Print & Media Union DWT 6/2004 the Labour Court held that an employer was under a positive duty to ensure that employees received their rest breaks:

“Merely stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee receives those breaks, thus protecting his health and safety, does not discharge that duty.”

In Nutweave Ltd t/a Bombay Pantry v Kumar DWT 1537 the Labour Court noted that, for the purposes of the Act, a break is a period which the worker knows in advance will be uninterrupted; which is not working time; and which he or she can use as he or she pleases.

In all the circumstances of this referral, I accept that that there was no system in place for ensuring breaks would be taken and the Complainant did not receive the required breaks while at work. The Complainant was at the Respondent’s disposal and would be expected to resume her duties immediately if so required. I am satisfied that the Respondent acted in contravention of Section 12 of the Organisation of Working Time Act 1997, by failing to afford the Complainant rest breaks as prescribed therein, and find this complaint to be well founded.

Having considered all aspects of this complaint I declare that the complaint to be well founded. I direct the Respondent to pay the Complainant compensation in the amount of €300 for the infringement of the Complainant’s rights under the Act.

The Complainant submits that she did not receive a statement in writing of her terms of employment.

The Respondent concedes that the Complainant has not been furnished with a written statement of her terms of employment.

Section 3 of the Act provides as follows:

“ Written statement of terms of employment

(1) 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 following particulars of the terms of the employee's employment, that is to say…

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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 following particulars of the terms of the employee's employment, that is to say…

(1B) Where a statement under subsection (1A) contains an error or omission, the statement shall be regarded as complying with the provisions of that subsection if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

(2) Each statement referred to in subsection (1) and (1A) shall be given to an employee notwithstanding that the employee's employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraph (d) of subsection (1A) or paragraphs, (h), (i), (j), (k) and (l) of the said subsection (1) may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee's employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) [or (1A)] shall be signed and dated by or on behalf of the employer.

(5) A copy of a statement furnished under this section shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

(6)

(a) The Minister may by order require employers to give or cause to be given to employees within a specified time a statement in writing containing such particulars of the terms of their employment (other than those referred to in subsection (1) or (1A)) as may be specified in the order and employers shall comply with the provisions of such an order.

(b) The Minister may by order amend or revoke an order under this subsection, including an order under this paragraph.

(7) This section (other than subsection (6)) shall not apply or have effect as respects contracts of employment entered into before the commencement of this Act.”

I find that the Respondent was in breach of Section 3 of the Terms of Employment (Information) Act, 1994 and that the Complainant was not provided with a written statement of her terms and conditions of employment at any stage during her period of employment.

Section 7(2)(d) of the Act states that an employer can be ordered “to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration”.

Taking all of the circumstances of this case into consideration, I direct the Respondent to pay the Complainant compensation of €300.

The Complainant submits that she was not notified of a change to her terms of employment. The Complainant submits that in 2013 there were changes introduced in the hours that she worked, and she was not notified of same.

The Respondent submits that any changes would have always been discussed with the Complainant. The Respondent submits that the hours of work of the Complainant were reduced during a 3-4 weeks period in 2013 and then reverted back to normal.

Section 5 of the Act stipulates as follow:

“Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect,”

The Complainant argued that a change was introduced to her terms of employment at some stage in 2013. After a number of weeks, the Complainant’s hours of work reverted to normal.

The claim was referred to the WRC on 29th April 2019. This claim was clearly submitted outside the time limits provided for in legislation. Therefore, this claim is out of time and statute barred.

Having carefully considered all evidence available to me I find that the Complainant has failed to submit her complaint within the required time limit. I find that the claims are out of time and therefore statute barred.

The Complainant submits that there were no records that she signed to say that she agreed with the hours / days that she was to work.

The Complainant agreed that she was not employed as a mobile worker.

The Respondent submits that no records of hours worked were kept.

I find that the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 S.I. 36 of 2012 apply to bus and truck drivers and other mobile workers who use tachographs for recording driving times, breaks and rest periods. A mobile worker is defined as any worker forming a part of the travelling staff who is in the service of an undertaking which operates transport services for passengers or goods by road for hire or reward or on its own account.

There was no dispute that the Respondent operated a shop. I am satisfied from the evidence adduced that the Complainant is not covered by Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 and, accordingly, I find that this complaint is not well founded.

I find that this complaint is not well founded.

Minimum wage- annual leave-public holiday- terms of employment- mobile road transport activities – breaks