ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023548

Parties:

	Complainant	Respondent
Anonymised Parties	A Sandwich Artist	A Sandwich Store

Representatives

The Complainant attended the Hearing in person

The Respondent did not attend or was not represented at the Hearing

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028891-001	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00028891-002	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00028891-003	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028891-004	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028891-005	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028891-006	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00028891-007	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00028891-008	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00028891-009	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00028891-010	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00028891-011	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00028891-012	06/06/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00028891-013	06/06/2019

Date of Adjudication Hearing: 12/12/2019

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014following 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.

The Complainant confirmed at the oral hearing that the name of her employer and the Respondent to these proceedings was Ms. Y trading as ABC. I am satisfied that notification of the instant complaints and of the hearing date in relation to this matter has been served on the correct Respondent to these proceedings by the Workplace Relations Commission (WRC).

The hearing of this complaint was scheduled to take place on 12 December, 2019 at 10 a.m. I received a telephone call from the WRC’s Secretariat at 9:50 a.m. on the morning of the hearing to confirm that the Respondent (Ms. X) had been in contact by telephone to indicate that she was on her way to the hearing but had to return home as a result of an illness to a family member. Ms. X confirmed to the WRC Secretariat in this telephone call that she would not be in attendance at the hearing but did not make an application for a postponement of the hearing. I was satisfied that the said Respondent was informed in writing of the date, time and place at which the hearing to investigate the complaint would be held. In the circumstances, I proceeded to hear the Complainant's evidence in the absence of the Respondent. The WRC has not received any further contact or correspondence from the Respondent post hearing to explain her failure to attend the on 12 December, 2020.

The Complainant confirmed at the oral hearing that the following complaints were withdrawn, namely: CA-00028891-004, CA-00028891-005, CA-00028891-010, CA-00028891-011, CA-00028891-012 and CA-00028891-013.

Background:

The Complainant was employed by the Respondent as a Sandwich Artist from 15 May, 2015 until 2 February, 2019 when her employment was terminated. The Complainant worked an average of 24 hours per week and was paid at a rate of €9.50 per hour.

The Complainant claims that the Respondent failed to pay her statutory redundancy entitlements when her employment was terminated by reason of redundancy.

The Complainant claims that the Respondent made unlawful deductions from her wages in relation to outstanding wages and payment in lieu of notice contrary to Section 5 of the Payment of Wages Act 1991 on the termination of her employment.

The Complainant claims that the Respondent has contravened the following provisions of the Organisation of Working Time Act 1997 in respect of her employment, namely, Section 14 in relation to payment of the Sunday premium, Sections 19 and 23 in relation to the payment of outstanding annual leave and Section 21 in relation to her public holiday entitlements.

The Complainant claims that the Respondent failed to provide her with a written statement of her terms and conditions of employment contrary to Section 3 of the Terms of Employment (Information) Act, 1994.

The Respondent did not engage with the WRC in relation to these complaints.

Summary of Complainant’s Case:

CA-00028891-001 – Complaint under the Organisation of Working Time Act, 1997

The Complainant submitted that she was obliged to work every second Sunday for a six-hour shift during her period of employment. The Complainant claims that she wasn’t paid any compensation for having to work on a Sunday and that this obligation was not taken into account in her pay. The Complainant claims that the Respondent has contravened Section 14 of the Act in relation to its failure to provide compensation for working on a Sunday.

CA-00028891-002 – Complaint under the Payment of Wages Act, 1991

The Complainant claims that the Respondent failed to pay her in respect of two week’s wages which she had accrued on the termination of her employment. The Complainant stated that she did not receive payment of wages in respect of work carried out during the weeks commencing 21 January, 2019 and 28 January, 2019. The Complainant claims that this constitutes an unlawful deduction from her wages contrary to Section 5 of the Act.

CA-00028891-003 – Complaint under the Payment of Wages Act, 1991

The Complainant claims that she did not receive the appropriate payment in lieu of notice on the termination of her employment on 2 February, 2019. The Complainant stated that she received notice from the Respondent on 30 January, 2019 that her employment would be terminated on 2 February, 2019. The Complainant contends that she was entitled to a statutory period of two weeks’ notice on the termination of her employment. The Complainant claims that this constitutes an unlawful deduction from her wages contrary to Section 5 of the Payment of Wages Act, 1991.

CA-00028891-006 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent failed to pay her outstanding annual leave entitlements on the termination of her employment contrary to the provisions of Section 23 of the Organisation of Working Time Act 1997. The Complainant claims that she did not receive any payment in respect of annual leave which she had accrued during the annual leave year 2018/2019 on the termination of her employment.

CA-00028891-007 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent has contravened the provisions of Section 21 of the Act in relation to her public holiday entitlements. The Complainant claims that she was not paid for three public holidays during her period of employment that fell during the cognisable period of this complaint, namely 25 and 26 December 2018 and 1 January, 2019.

CA-00028891-008 – Complaint under the Terms of Employment (Information) Act, 1994

The Complainant claims that she did not receive a written statement of her terms and conditions of employment at any point during her period of employment. The Complainant claims that the Respondent has contravened the provisions of Section 3 of the Terms of Employment (Information) Act, 1994 in relation to her employment.

CA-00028891-009 – Complaint under the Redundancy Payments Acts, 1967 to 2015

The Complainant stated that she was informed by the Respondent on 30 January, 2019 that the business was closing with effect from 2 February, 2019. The Complainant stated that her employment was terminated on 2 February, 2019 by reason of redundancy as a result of the closure of the business on this date. The Complainant stated that she requested payment of her statutory redundancy entitlements from the Respondent following the termination of her employment (using the RP9 and RP77 Forms) but the Respondent has failed to discharge the payment of her entitlements.

Summary of Respondent’s Case:

The Respondent did not engage with the Workplace Relations Commission in relation to these complaints.

Findings and Conclusions:

CA-00028891-001 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that she was obliged to work every second Sunday for a six-hour shift during her period of employment. The Complainant contends that she wasn’t paid any compensation for having to work on a Sunday and that this obligation was not taken into account in her pay.

Section 14(1) of the Act provides, in effect, that an employee who is required to work on a Sunday is entitled to an additional benefit in respect of that requirement where “the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay”. What is intended by this provision is that a worker who is obliged to work on a Sunday is entitled to compensation for that obligation in the form of a benefit which he or she would not receive it they were not so obligated.

Given that the Respondent failed to engage with the WRC in relation to this complaint, I note that no evidence has been put before me that the Complainant was so compensated in respect of the requirement placed upon her to work on a Sunday.

The instant complaint was made to the Workplace Relations Commission on 6 June, 2019. Therefore, the cognisable period for the instant complaint in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 is 7 December, 2018 to 2 February, 2019 (i.e. the date of termination of the Complainant’s employment).

Based on the uncontested evidence of the Complainant, I find that the Complainant did not receive compensation in respect of Sunday working on the five Sundays that she worked during the cognisable period. Accordingly, I find that the Respondent has contravened the provisions of Section 14 of the Act and that the compliant is well founded.

CA-00028891-002 – Complaint under the Payment of Wages Act 1991

Section 5(1) of the Act provides: -

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides: —

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The Complainant claims that the Respondent failed to pay her in respect of two week’s wages that she had accrued on the termination of her employment, namely for work carried out during the week’s commencing 21 January, 2019 and 28 January, 2019.

Based on the uncontested evidence of the Complainant, I find that the Complainant did not receive payment from the Respondent in respect of two week’s wages which she had accrued on the termination of her employment. Accordingly, I find that the Respondent made an unlawful deduction from the Complainant’s wages contrary to Section 5 of the Act and that the complaint is well founded.

CA-00028891-003 – Complaint under the Payment of Wages Act 1991

Section 1 of the Payment of Wages Act, 1991 defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including— (b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”.

Based on the uncontested evidence of the Complainant, I find that the Complainant did not receive the appropriate statutory notice from the Respondent prior to the termination of her employment nor did she receive payment in lieu of this entitlement from the Respondent. The Complainant was employed by the Respondent for approx. 3 years and eight months and therefore was entitled to a statutory period of two weeks’ notice prior to the termination of her employment. I am satisfied that the Complainant only received 3 days’ notice prior to the termination of her employment and therefore was entitled to payment in lieu in respect of the outstanding period i.e. 1.4 weeks.

Accordingly, I find the Complainant’s claim under the Payment of Wages Act 1991 is well founded and that the Respondent’s failure to pay her in lieu of her outstanding statutory notice entitlement upon the termination of her employment constitutes an unlawful deduction from her wages within the meaning of Section 5 of the Act.

CA-00028891-006 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that she did not receive any payment in respect of annual leave which she had accrued during the annual leave year 2018/2019 on the termination of her employment.

The cognisable period for the purpose of the instant complaint in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 is 7 December, 2018 to 2 February, 2019 (i.e. the date of termination of the Complainant’s employment).

Section 2(1) of the Act defines the Leave Year as “a year beginning on any first day of April”. Therefore, in accordance with the provisions of Section 23(1)(b)(i) of the Act I am satisfied that any outstanding annual leave accrued during the annual leave year 2018/2019 (i.e. 1 April, 2018 to 31 March, 2019) is covered by this complaint.

Having regard to the evidence adduced, I am satisfied that the Complainant worked 1,056 hours during the annual leave year 2018/19 (i.e. during the period from 1 April, 2018 to 2 February, 2019) and therefore had accrued an entitlement to payment for 84.48 hours in respect of annual leave entitlements on the cessation of her employment (i.e. 8% of 1,056 hours worked during 2018/19 = 84.48 hours x €9.50 per hour = €802.56). I am satisfied that the evidence adduced by the Complainant is that she was not afforded her annual leave entitlements for the annual leave year 2018/19 as required by the Act. Having regard to the uncontested evidence of the Complainant, I find that the complaint is well founded and that she was entitled to payment of €802.56 in respect of accrued annual leave entitlements on the cessation of her employment.

CA-00028891-007 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that she was not paid for three public holidays during her period of employment that fell during the cognisable period of this complaint, 25 and 26 December 2018 and 1 January, 2019. Based on the uncontested evidence of the Complainant, I find that the Complainant was not provided with a benefit in respect of the three public holidays during the material period in question. Accordingly, I find that the Respondent has contravened Section 21 of the Act and that she is entitled to a day’s pay in respect of the three public holidays in question.

CA-00028891-008 – Complaint under the Terms of Employment (Information) Act 1994

This complaint has been referred under Section 7 of the Terms of Employment (Information) Act, 1994 and the Complainant has alleged a contravention of Section 3 of the Act.

Section 3(1) of the Terms of Employment (Information) Act 1994 requires that “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 …… “.

The Complainant adduced evidence that she was not provided with a written statement of her terms and conditions of employment by the Respondent during her period of employment. I have found the Complainant to be a credible witness, and in the absence of any contradictory evidence from the Respondent, I accept her evidence in relation to this matter.

Based on the uncontested evidence of the Complainant, I find 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. In the circumstances, I find that the Respondent has contravened Section 3 of the Act and that the complaint is well founded.

CA-00028891-009 – Complaint under the Redundancy Payments Act, 1967

The Complainant adduced evidence that her employment with the Respondent was terminated on 2 February, 2019 by reason of redundancy.

Based on the uncontested evidence of the Complainant, I find that the Complainant was employed on a continuous basis with the Respondent from 15 May, 2015 until 2 February, 2019 when her employment was terminated by reason of redundancy following the closure of the Respondent’s business.

Decision:

CA-00028891-001 – Complaint under the Organisation of Working Time Act, 1997