ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00025238
Parties:
| Complainant | Respondent |
Anonymised Parties | A general assistant | A fast food restaurant |
Representatives | Self | Fiona O'Connor , Tom Smyth & Associates |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00032101-001 | 11/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00032101-002 | 11/11/2019 |
Date of Adjudication Hearing: 05/02/2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant commenced employment with the Respondent on 25/10/2017 and this employment ended on 01/09/2019. The Complainant’s date of birth is 21st March 2002, throughout the period of his employment the Complainant was under 18 years of age. As per complaint form the Complainant worked 14 hours per week for a gross wage of €133.70. Two complaints were submitted to the Workplace Relations Commission on 11th November 2019: CA – 00032101 – 001 – Complaint submitted under section 6 of the Payment of Wages Act, 1991. CA – 00032101 – 002 – Complaint submitted under section 27 of the Organisation of Working Time Act, 1997. |
Summary of Complainant’s Case:
CA – 00032101 – 001 The Complainant was placed on an emergency tax rate in the early part of his employment. When this was sorted he expected a refund of tax from his employer. He received a cheque from the employer for €400 – he had expected more than this and made some enquiries to Revenue. He was informed by Revenue that he was due a refund of €1,079. A statement to this effect was issued by Revenue to the Complainant who proceeded to show this statement to his employer, the Respondent. The Complainant contends that his employer, the Respondent, refused to pay him this amount. CA – 00032101 – 002. The Complainant contends that he worked on Sundays and was never paid a Sunday premium. |
Summary of Respondent’s Case:
CA – 00032101 – 001 At the hearing of this Complaint the Respondent was accompanied by a Representative. As spreadsheet was produced that showed how much the Complainant was paid in cash and the spreadsheet, in another column, showed what he should have been paid if he had been paid through his bank account. For the period 2019 the spreadsheet shows an underpayment of €24.66. CA – 00032101 – 002. The Respondent contends that as the Complainant was under 18 years of age he was paid a composite rate of pay that included a Sunday premium and was in excess of the National Minimum Wage. |
Findings and Conclusions:
The Complainant contends that he was due a refund of tax of €1079.00. He received a cheque for €400, this cheque was dated 27th June 2019. On 8th January 2020 the Respondent wrote to the Workplace Relations Commission, the content of this letter is as follows: “Please allow this letter to serve as my proof of salary payment to my former employee (name redacted). Prior to the response letter from (name redacted) I have paid two cheques to the above mentioned listed below which amount to €834. a) Cheque 1: 27/06/2019 – (€ 400) b) Cheque 2: 10/10/2019 - (€ 434) Mr (name redacted) also stated in his letter that the total amount to be paid to him should amount to € 1079. I have attached a cheque of €245 for Mr (name redacted) with this letter which sums up to €1,079”. In relation to this letter I believe it constitutes acceptance that the Complainant was owed the sum of €1,079. The cheque for €434 paid on 10/10/2019 was payment for holidays due after the Complainant left employment, this was stated and accepted at the hearing. The complaint as presented under the Payment of Wages Act, 1994 is well founded. CA – 00032101 – 002. This complaint submitted under section 27 of the Organisation of Working Time Act, 1997 relates to the payment of Sunday premium. The Respondent contends that the rate of pay paid to the Complainant is a composite rate and includes Sunday premium. Section 27(4) of the Act states: “27(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. The cognizable period is 12th May 2019 to 11th November 2019. During this period, as per pay slips submitted at hearing, the hourly rate was €9.65 per hour rising to €9.80 per hour at the start of June 2019. During the same period the National Minimum Wage was €9.55 per hour. The Complainant was 17 years old during the cognizable period and was therefore entitled to 70% of the NMW i.e. €6.68 per hour. The Complainant was making well in excess of this figure. I am satisfied this was a composite rate and therefore find the complaint not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA – 00032101 – 001 I order the Respondent to pay the Complainant the amount of €679.00 under the Payment of Wages Act 1991. CA – 00032101 – 002. The complaint as presented under the Organisation of Working Time Act, 1997 is not well founded. Payment should be made to the Complainant within 42 days from the date of this decision. |
Dated: 2nd April 2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Payment of Wages Act, 1991 Organisation of Working Time Act, 1997. |