ADJ-00024252

Complainant

Respondent

Anonymised Parties

Solicitors

Company representative

Representatives

Maria O'Donovan Maria O'Donovan & Co.

HR representative

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030871-001

12/09/2019

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

CA-00030871-002

12/09/2019

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

CA-00030871-004

12/09/2019

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

CA-00030871-005

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00030871-006

12/09/2019

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

CA-00030871-007

12/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00030871-008

12/09/2019

The claimants position is that she did not receive premium for Sunday working,  did not get rest breaks as per the Organisation of Working Time Act 1997,  was paid less than the amount due to her under the Payment of Wages Act 1991, did not receive Public Holiday Payment under the Organisation of Working Time Act 1997, did not receive payslips on a regular basis as per Terms of Employment Information Act 1994 and was dismissed for seeking her rights to Sunday premium, rest breaks, requesting payslips and payment for working overtime. The respondent for their part reject that there was a breach of the Terms of Employment (Information) Act, that they refused the claimant rest breaks under the Organisation of Working Time Act, that they failed to pay for hours worked and that they dismissed her for claiming her rights. The respondent also rejects the assertion that the claimant was employed on the 1st of February 2019 and submit that the relevant date is the 18th of February 2019.

The claimant submits that she was in the employment of the respondent from the 1st February 2019 to the 12th April 2019.The claimant submits that the respondent dismissed her on the 12th April 2019 for seeking to have her rights as an employee vindicated. The claimant insists that the respondent breached the following Acts in respect of her employment:

a)       Terms of Employment [Information Act] 1994

b)      Organisation of Working Time Act 1997

c)     Payment of Wages Act 1991

d)    In addition, the claimant submitted a claim for Unfair Dismissal under the Industrial Relations Act 1991

The claimant submits that she did not receive

1)    A Contract of Employment

2)    Payslips in respect of her weekly pay during the course of her employment

3)    Did not receive rest breaks

4)    Did not receive payment for Sunday Premium

5)    Did not receive entitlement for working Public Holidays

6)    Did not receive overtime for additional hours worked

The respondent submits that the employment of the claimant commenced on the 18th February 2019 and not on the 1st February 2019 as stated by the claimant.

The respondent submits that the period from the 1st February 2019 to the 18th February 2019 was a period of probation to assess the claimant’s suitability. Their position is that the claimant did not work the full roster, which was in operation after the 18th February 2019. The agreed working hours from the 18th February 2019 were:

Saturday 10.00am to 18.00pm

Sunday 11.00am to 17.00pm

Monday 14.00pm to 20.00pm

The respondent submits that the probationary period was paid for in cash to the claimant. The respondent’s position is that any errors in relation to Sunday Premium and Public Holiday payments resulted from incorrect advice received from their accountant. The respondent submits that the claimant agreed a commencement date of 18th February 2019 and, as a consequence, there was not a breach of the Terms of Employment (Information) Act.

I have considered all of the evidence, both written and verbal, in the instant case. During the hearing the respondent made reference to the size of the operation ie: “ a small Polish grocery shop”. I have considered this point and have concluded that it could not be relied upon as a defence for not being aware of their legal obligations to their employee. The first issue that needs to be addresses is the starting date of the claimants employment. The respondent’s position is that the claimant commenced work on the 18th February 2019 and that any work carried out prior to that time was casual, probationary in nature and was paid for in cash to the claimant. I have considered the evidence of both the claimant and the respondent and I conclude that the employment relationship commenced on the 1st February 2019. The issue of the non-availability of payslips on regular basis was dealt with during the hearing. However, as an adjudicator I have no jurisdiction in relation to redress in respect of this matter. It was also agreed between the parties that CA00030871-001 and CA00030871-008 could be dealt with simultaneously as they were both submitted under Section 13 of the Industrial Relations Act 1969 in regard of Unfair Dismissal.

CA00030871- 002:

I have already concluded that the employment relationship commenced on 1st February 2019 and concluded on the 12th April 2019, a period in excess of the two (2) months during which the respondent failed to provide the employee with a statement of the terms and conditions of employment in contravention of the Terms of Employment (Information) Act 1994.

CA00030871 – 004:

The claimant’s position is that she did not receive rest breaks as per the Organisation of Working Time Act 1997. The respondent’s position is that the claimant was aware that she could have taken breaks in line with the Act during quieter periods in the store. The respondent relied on an adjudication decision, CA00027972-004 in respect of rest breaks in which the Adjudicator decided “that the claim is not well founded when an employee is allowed to take breaks at their own discretion”. The claimant confirmed in evidence that the opportunity to take rest breaks as envisioned in the Act was not possible as the store was open and customers were constantly needing attention.  The respondent submits that there was ample opportunity to take rest periods in line with the Act. In considering all of the evidence, both written and verbal, I prefer the evidence of the claimant and I conclude that she was not afforded a reasonable opportunity to take rest breaks in line with Organisation of Working Time Act 1997. Section 41 (6) of the Workplace Relations Act 2015 states “subject to Subsection (8) an Adjudicator shall not entertain a complaint referred to him under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates”.

CA00030871 -005:

The claimant submits that she did not receive a premium payment for Sunday working, this issue was not contested by the respondent who stated that they received advice from their accountant to the effect that a premium payment for Sunday was not a requirement.

CA00030871 – 006:

The claimant’s position is that she was directed by the respondent to arrive early for work and remain after the shop had closed to carry our identified tasks. Details of this claim were submitted in evidence during the course of the hearing. The respondent’s position is that that claimant was paid for her contracted hours (20 hours per week) and was not required to work additional hours during the course of her employment. Having considered the claim and the evidence adduced in the hearing I prefer the evidence of the respondent in relation to the claim for additional hours.

CA00030871 – 007:

The claimant submits that she did not receive the correct payment for the Public Holiday on the 17th March 2019. The issue of payment for Public Holidays was disputed by the respondent. The claimant sought six (6) hours payment in respect of the Public Holiday. It was adduced in evidence, and accepted by the claimant’s representative, that four (4) hours was paid to the claimant.

CA00030871 -008 & -001:

I was asked to consider the question of Unfair Dismissal under the Industrial Relations Act 1969. The claimant received notice of the termination of her contract on the 12th April 2019. The termination notice did not give any reason for the termination other than to state that “Please note that your contract with Bielik Polski Sklep is terminated with today’s date”. I was struck that no reason was given for the termination. However, the respondent did submit at the hearing that the claimant was dismissed for refusing to communicate with the respondent regarding a return to work. It seems to me that while the claimant was not covered by the Unfair Dismissal Act 1977 to 2005, the respondent failed to follow any reasonable and fair procedures and did not allow for any appeals processes in respect of dismissal.

CA00030871- 002:

I find that the claim is well founded and order the respondent to pay compensation amounting to 2 weeks pay at a rate of €9, 80 per hour by 40 hours equal to €392

CA00030871 – 004:

In the instant case I conclude that the relevant period was from the 12th March 2019 to 12 April 2019.

On this basis I find that the complaint is well founded and order the respondent to pay compensation of 2 weeks pay at an hourly rate of €9.80 per hour by 40 hours equal to €392.

CA00030871 -005:

I have already concluded that the employment commencement date was 1st February 2019. However, Section 41 (6) of the Workplace Relations Act 2015 applies in the instant case and the relevant complaint period is from the 12th March 2019 to 12th April 2019. This period relates to four (4) Sundays in which Sunday premium was not paid as per the relevant Act.

Therefore, I find that the claim is well founded and order the respondent to pay a premium rate of

50% in respect of the 4 Sundays which amount to €117.60

CA00030871 – 006:

I find this claim to be without merit and not well founded.

CA00030871 – 007:

I find that a claim for 2 hours pay is well founded and order the respondent to pay the claimant 2 hours pay at a rate of €9.80 per hour which amounts to €19.60.

CA00030871 – 001, CA00030871 – 008:

I find that the dismissal of the claimant was not in accordance with fair procedures and, as a consequence, I recommend that a payment of €600 be paid to the claimant in respect of her dismissal.

“Terms and Conditions of Employment”

”Hours of Work”

”Pay”

“Unfair Dismissal”

“Industrial Relations”