ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A limited Company |
Representatives |
|
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00029196-003 | ||
CA-00029196-004 | ||
CA-00029196-005 | ||
CA-00029196-006 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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.
Summary of Complainant’s Case:
CA 0029196- 003 – (Terms and Conditions of Employment) The change in her term sand conditions of employment happened in April 2019. Instead of getting €200.00 net she was told it was now on going to be a gross figure and her statutory deductions would be taken from it. She complained about that. It changed back in May 2019. Also, in 2015 there was a new contract. The complainant was shown it and then it was taken away because there were mistakes in it. She didn’t get a copy of the amended version. CA 0029196 - 004 (Organisation of Working Time) The complainant’s employer did not give her any holiday pay for the year 2019. She worked 20 hours per week. The complainant accepts the holiday years runs from April. CA 0029196- 005 (Payment of wages). A term of her contract of employment was that she was to be reimbursed for phone, internet and office supplies. She paid for them herself but was never reimbursed. The sums due are from March 2017. CA 0029196- 006 (Payment of Wages) The complainant was to be paid 50c per kilometre. However, that was not a term of her contract. She was paid it in the past. She had a legitimate expectation in relation to it. Feb 2019 to May, 2019 she did 620 km. € 310 is due to her. She did not submit the invoice for this claim. |
Summary of Respondent’s Case:
The Background: The Complainant commenced work with the Respondent at his stud on 26th October 2009 and her employment terminated on 3rd June 2019. The Complainant’s gross pay was €10.00 per hour for a 20-hour week.The Complainant was provided with a house on the Stud land to live in. The telephone accounts for the said Stud were at all times in the name of the Respondent and the Complainant had the use of same. The Complainant regularly failed to inform the Respondent regarding the bills from the service provider and as a result of failure to pay the telephone provider disconnected the land line to the said Stud. It is accepted that the Complainant used her own mobile phone as a result of the said disconnection of the land line. However, at no time during the currency of her employment did the Complainant make any request for reimbursement of any costs incurred by her in respect of same. The Complainant was offered compensation of €15 per month for the period she used her mobile (based on a monthly package cost of €30). The Respondent would have willing paid any travel expenses incurred by the Complainant. During the currency of her employment the Complainant never submitted any expense claims and the claims submitted post-employment are incomprehensible and in respect of the subject matter of which the Respondent is a stranger. It is the Respondent’s position that the travel log prepared by the Complainant was not contemporaneous but was made ex post facto in totality and does not represent expenses necessarily incurred in the carrying out of work for the Respondent.
The Complaints: CA-00029196-003: Complaint pursuant to s.7 of the Terms of Employment (Information) Act 1994 alleging that the Complainant did not receive a s.3 written statement. Response of the Respondent to this complaint: This Respondent is at a loss as to this complaint and disputes it. At a meeting on 3rd August 2015 between the Respondent and the Complainant they agreed to some changes regarding the working hours. This agreement was reduced to writing by Ms NH manager of the Stud at the material time on the 10th August 2015. The contract of employment was sent to the Respondent in Germany for signing by the Respondent. A copy of the said contract will be adduced at the hearing. The conditions of this contract were performed by the Complainant without demur until after her employment with the Respondent was terminated. CA-00029196-004: Complaint regarding pay pursuant to s.27 of the Organisation of Working Time Act 1997. Response of the Respondent to this complaint: The Respondent disputes this claim. The leave year for 2017 is 1st April 2017 to 31st March 2018 and accordingly that part of the complaint relating to 2017 and part of 2018 is statute barred and fails for want of jurisdiction. The leave year for 2018 is 1st April 2018 to 31st March 2019 and accordingly that part the Complaint relating to 2018 and part of 2019 is statute barred and fails for want of jurisdiction. The current leave year is 1st April 2019 to 31st March 2020. The Complainant worked for the period 1st April 2019 to 3rd June 2019. The Complainant’s holiday entitlements for that period accrue for time worked during that period. The Complainant worked 20 hours over 2 days per week. It is the Respondent’s position that the Complainant took annual leave for this period, and indeed for all leave years, returning to Poland with her son. Without prejudice to the assertion that the Complainant took all her holiday entitlements for the annual leave year 1st April 2019 to 31st March 2020 if the Adjudicator makes a decision in her favour any entitlement requires to be calculated as set out hereunder making the quantum of her claim €70.20. Section 19 of the Organisation of Working Time Act 1997 provides three scenarios for an employee’s entitlement to annual leave. These are set out hereunder: - (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. Option (a) does not apply as the Complainant left her employment in the current leave year. Option (b) would give the Complainant an entitlement to one-third of a working week for each month in the leave year being 2 months. One-third multiplied by 2 (months) is two-thirds of a working week being 6.6 hours and pay in lieu of being €66.66. Option (c), which is subject to a maximum of 4 working weeks, based on the Complainant working 20 hours for each of 9 weeks days gives a total number of working hours of 90, 8% of which equals 7.2 hours and pay in lieu of being €70.20. Accordingly, option (c) is the option which is the greater. CA-00029196-005: Complaint regarding pay pursuant to s.6 of the Payment of Wages Act 1991. Response of the Respondent to this complaint: The Respondent disputes this claim. The period of the complaint is limited to 21st December 2018 to 3rd June 2019. This complaint is vague and is not supported by vouching documentation such as telephone accounts or otherwise. Even if what the Complainant alleges is true it is submitted it is not a deduction and/or it is not encompassed in the definition of wages for the purpose of the Act of 1991. See s.1(1) of the Act regarding the definition of wages which provides as follows: -
Provided however that the following payments shall not be regarded as wages for the purposes of this definition:
(i) any payment in respect of expenses incurred by the employee in carrying out his employment, (v) any payment in kind or benefit in kind. CA-00029196-006: Complaint regarding pay pursuant to s.6 of the Payment of Wages Act 1991. Response of the Respondent to this complaint: The Respondent reiterates his submission set out for Complaint 005 above. |
Findings and Conclusions:
003 (Terms and Conditions of Employment) I am satisfied that the complainant was not notified of the change in her terms of employment in April 2019. It seems that the change was some sort of administrative error. Once the complainant notified the respondent it was rectified, and the terms reverted to what they had been. I am also satisfied that the complainant was not given a copy of her new contract in 2015. The complaint is well founded. I award the complainant € 400.00 004 (Organisation of working time) This claim has been conceded by the Respondent. On that basis I find that the claim is well founded, and I award the complainant €70.20. 005 (Payment of Wages) The claim dates back to 2017. The claim was filed with the WRC on 20.06.2019. The claim is statute barred and therefore I do not have jurisdiction to determine the matter. 006 (Payment of Wages) Section 1(1) of the Act defines wages are and are not:
Provided however that the following payments shall not be regarded as wages for the purposes of this definition:
(ii) any payment in respect of expenses incurred by the employee in carrying out his employment, (v) any payment in kind or benefit in kind. It is clear from the act that travel expenses are not wages for the purpose of the act. Furthermore, even if they were, the complainant accepts that she did not submit her expenses in relation to this part of her claim. If the complainant did not submit her expenses, then the respondent could not have withheld any sums due to her as he did not know about them. The complaint is not well founded and accordingly fails. |
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.
CA-00029196-003 The complaint is well founded. I award the complainant € 400.00 CA-00029196-004 The complainant is conceded. I award the complainant €70.20 CA-00029196-005 The complaint is statute barred. CA-00029196-006. I have no jurisdiction to determine this complaint. The complaint fails. |
Dated: September 23rd 2019
Workplace Relations Commission Adjudication Officer: