ADJ-00012646

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012646

Parties:

	Complainant	Respondent
Anonymised Parties	Cleaner-Supervisor	Cleaning Company

Representatives

Marius Marosan Marius Marosan

Colin McGlynn CMG Consultants

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00016811-001	14/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00016811-002	14/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00016811-003	14/01/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00016811-004	14/01/2018

Date of Adjudication Hearing: 16/01/2019

Workplace Relations Commission Adjudication Officer: Gerard McMahon

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 had 4 complaints, under the legislation as outlined above. The complainant worked as a cleaner-supervisor for the respondent with effect from Oct. 1st, 2012 to Dec. 7th, 2017. The first complaint (CA-00016811-001) pertains to her (alleged) non-receipt of contractual information, in Oct. 2012, when she started as a cleaner and in May 2017 when she started as a supervisor, allegedly in breach of the relevant Employment Regulation Order (E.R.O.). The second complaint (CA-00016811-002) pertains to underpayment vis-à-vis the relevant E.R.O. At the first hearing, the complainant failed to make an assessment of the underpayment. The third complaint pertains to payment in lieu of notice (under the Payment of Wages Act). The fourth complaint pertains to the complainant’s alleged dismissal (on Dec. 7th, 2017) without notice. In an e-mail (apparently to the respondent) dated Dec. 12th, 2017, the complainant alleges that she got a call from the respondent (without warning or notice) dismissing her.

Summary of Complainant’s Case:

CA-00016811-001 - The first complaint pertains to the complainant’s (alleged) non-receipt of contractual information, in Oct. 2012, when she started as a cleaner and in May 2017 when she (allegedly) started as a supervisor. With ref. to the 2-page contract presented in evidence (dated March 27th, 2013 (see below)), the complainant alleges that it is a fraud and that it’s not her signature. Furthermore, the signed contract is dated March 27th, 2013. However, it also provides for a €9.75 hourly rate – which was only applicable with effect from around mid-2017. With reference to the (absence of a) contract for the supervisor’s role, the complainant alleges that the first 3 months were on a trial basis and that a contract should have been issued (n.b. payslips presented in evidence, dated May 25th, 2017 and Dec. 7th, 2017, specify ‘Supervisor’).

CA-00016811-003 – The third complaint pertains to payment in lieu of notice (under the Payment of Wages Act). The minimum notice payment (for 2 weeks) is calculated at €744.

Summary of Respondent’s Case:

CA-00016811-001 - The first complaint pertains to the complainant’s (alleged) non-receipt of contractual information, in Oct. 2012, when she started as a cleaner and in May 2017 when she (allegedly) started as a supervisor. In evidence, the respondent produced a signed contract (dated March 27th, 2013). It is alleged that the contract was issued on a timely basis, but not returned on a timely basis. Furthermore, it is alleged that the claim is ‘out of time’. The respondent acknowledges that no contract was issued for the supervisory role, as it was undertaken on a trial basis (i.e. the first 3 months were on a trial basis, albeit not in writing) with effect from Sept. 2017 (n.b. not May 2017). With reference to the payslips presented in evidence, dated May 25th, 2017 and Dec. 7th, 2017, that specify ‘Supervisor’, the respondent alleges that the software system automatically reverts to ‘Supervisor’ for the whole year if entered in once.

At the second hearing (on Sept. 12th, 2018) the respondent noted that the Contract Cleaning E.R.O. i.e. S.I. 548 of 2016 states that: ‘All Employers will, on request or within two months of the commencement of employment, provide each employee with a written statement of the employee’s terms of employment in compliance with the Terms of Employment (Information) Act, 1994.’ It is alleged that the complainant received a contract of employment in 2012 (n.b. a signed copy of same was attached to the respondent’s submission). At the third hearing, the respondent suggested that contracts issued (incl. the complainant’s) appeared to have been signed by the same person.

CA-00016811-002 – The second complaint pertains to underpayment vis-à-vis the relevant Employment Regulation Order. At the first hearing, the complainant failed to make an assessment of the underpayment. Both parties agreed to address this matter in advance of a second hearing. At the second hearing, the complainant calculated a shortfall of €1,004.04 (based on 54 weeks at (an average of) 31 hours per week at €0.60), pertaining to the period Oct. 1st, 2015 to Oct. 16th, 2016. No calculations were proffered in respect of subsequent periods. The respondent noted that the 31-hour calculation is an assessment, but had no figures to contest the assessment for this period. However, the respondent noted that the claimant’s employment ended on the 7th of December 2017 and as a result her claim therefore applies to the 6 months prior to her resignation i.e. for pay period 7th May 2017 to 7th December 2017. Payslips pertaining to the claimant (from 1st January 2017 up to her resignation in December 2017) were submitted. The summary spreadsheet analysis and payslips confirm that:

From 1st January 2017 to 11th May 2017 the claimant was paid €9.75 per hour – The E.R.O. rate from 2017 was €10.40
From 7th May 2017 to 11th May 2017 the claimant was underpaid €0.65 per hour i.e. underpaid for 28 hours at €0.65 per hour – Total underpaid €18.20
From 12th May 2017 the claimant was paid between €11 and €12 per working hour. In 2017 the claimant’s average hourly rate was €10.68. The E.R.O. rate from 2017 was €10.40 – Total overpaid in 2017 at an E.R.O. rate of €10.40 was €362.76
Based on an analysis of payslips, the claimant never worked more than an average 86.5 hour working fortnight – The E.R.O. confirms that the premium rate only applies after 44 hours and therefore in line with the Contract Cleaning E.R.O. (i.e. S.I. 548 of 2016) she was not entitled to a premium payment for her working hours even though the company paid the claimant 156.5 overtime hours in 2017 at an average of €10.74 per hour. The E.R.O. rate from 2017 was €10.40. On this basis, the respondent contends that the total overpaid in 2017 (at an E.R.O. rate of €10.40) was €53.90.
In 2017, based on payslip working hours, the claimant earned €13,622.76. Accruing annual leave at 8% would place her accrued annual leave entitlement at €1,089.82 but the claimant was paid €1,993.25 i.e. overpaid annual leave of €903.43. In 2017 her average annual leave hourly rate was €12.21.

In summary, it is relevant that in 2017 the claimant’s average hourly rate was €10.68; she was paid an average overtime hourly rate of €10.74 (weekly working hours never exceeded 44 hours) and she was paid an annual leave hourly rate of €12.21.

CA-00016811-003 – The third complaint pertains to payment in lieu of notice (under the Payment of Wages Act). However, the respondent contends that this is not applicable, as there was a resignation, not a dismissal. The background to her resignation was explained by the respondent. She was employed by the company as a cleaner for ~5 years, when the company offered her a promotion to supervisor on a trial basis for three months. This she did to the best of her ability, albeit with difficulty, until it was decided following discussions that she found the work too stressful and she wished to return to her original position as cleaner. The respondent visited the claimant’s home, where he was told that the claimant would like the company to find someone else for this position and requested that she return to her former less stressful cleaning position. Furthermore, the claimant has not provided one piece of evidence to prove that she was dismissed. However, the respondent can prove that the respondent was never dismissed by the company and that she was offered her original post.

CA-00016811-004 – The fourth complaint pertains to the complainant’s alleged dismissal (on Dec. 7th, 2017) without notice. In an e-mail (apparently to the respondent) dated Dec. 12th, 2017, the complainant alleges that she got a call from the respondent (without warning or notice) dismissing her. The respondent contends that it was a resignation (see letter from respondent to claimant dated Dec. 15th, 2017), as the trial period (from Sept. 15th to Dec. 15th) ‘did not work out’ and that the claimant was offered her original role (i.e. as a cleaner) with the respondent. This offer was made in a text (from the respondent, dated Dec. 6th, 2017) saying ‘sorry about the sudden nature of this decision … but … it’s just not working for either of us. Please let me know if you want hours as I can get you all back if that is what you want.’

Findings and Conclusions:

CA-00016811-001 The respondent could not confirm that the (cleaner’s) contract had been issued directly, on a timely basis or that reminders were issued for its return. The respondent acknowledges that there was an ‘administrative oversight’ and no contract was issued for the supervisory role. Failure to provide a written statement of terms and conditions of employment within 2 months of starting can be addressed as set out in section 7 of the Terms of Employment (Information) Act, 1994 (and covered at Part III of S.I. No. 548) enabling an award up to 4 weeks’ remuneration by way of compensation.

CA-00016811-002 – The second complaint pertains to underpayment vis-à-vis the relevant Employment Regulation Order. Having reviewed the dataset furnished (i.e. the employee’s payslips) it can be concluded that specific provisions of the E.R.O. for standard hours were not met.

CA-00016811-003 – The third complaint pertains to payment in lieu of notice (under the Payment of Wages Act). Notably, CA-00016811-004 is upheld. This claim is also upheld.

CA-00016811-004 – The fourth complaint pertains to the complainant’s alleged dismissal (on Dec. 7th, 2017) without notice. The respondent contends that it was a resignation (see letter from respondent to claimant dated Dec. 15th, 2017), as the trial period (from Sept. 15th to Dec. 15th) ‘did not work out’ and that the claimant was offered her original role (i.e. as a cleaner) with the respondent. This offer was made in a text (from the respondent, dated Dec. 6th, 2017) saying ‘sorry about the sudden nature of this decision … but … it’s just not working for either of us. Please let me know if you want hours as I can get you all back if that is what you want.’ In an e-mail (apparently to the respondent) dated Dec. 12th, 2017, the complainant alleges that she got a call from the respondent (without warning or notice) dismissing her. Furthermore, it is pointed out that the relevant P45 states that the cessation date was Dec. 7th, 2017. The respondent contends that the supervisory role was a 3-month trial. However, the complainant alleges that it was a 6-month trial (see supporting payslips with reference to ‘SPVSR’). There was no contract or evidence confirming that it was a trial posting. Notably, the employer’s induction booklet alludes to a month’s trial for recruits (p. 8). The claimant contends that she wanted to remain in the supervisor’s role and did not take up the offer of reverting to the cleaner’s role as she was so distressed by her abrupt dismissal. Having been dismissed in Dec. 2017 the claimant secured new employment (on equivalent remuneration) with effect from mid-Jan. 2018.

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. 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-00016811-001 – The claim is well founded and is upheld. Failure to provide a written statement of terms and conditions of employment within 2 months of starting can be addressed as set out in section 7 of the Terms of Employment (Information) Act, 1994 (and as covered at Part III of S.I. No. 548) enabling an award up to 4 weeks’ remuneration by way of compensation. Accordingly, a compensatory award of €1,488 to the claimant is made.

CA-00016811-002 – The claim is well founded and is upheld. It pertains to underpayment vis-à-vis the relevant E.R.O. Accordingly, an arrears payment of €171.60 to the claimant is made.

CA-00016811-003 – The claim is well founded and is upheld. It pertains to payment in lieu of notice. As the employee commenced with the respondent on Oct. 1st, 2012 a notice period of 4 weeks pertains. Accordingly, a compensatory award of €1,488 to the claimant is made.

CA-00016811-004 – The claim is well founded and is upheld. Allowing for the employee’s (successful) efforts to mitigate their loss, a compensatory award of €1,860 to the claimant is made.

Dated: March 19th 2020

Workplace Relations Commission Adjudication Officer: Gerard McMahon

Key Words:

Dismissal Minimum Notice Terms and Conditions of Employment Contract Employment Regulation Order