Complainant

Respondent

Anonymised Parties

Childcare Worker

Childcare Provider

Representatives

Self-Represented

Self-Represented

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-00032335-001

19/11/2019

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

CA-00032397-001

21/11/2019

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

CA-00032400-001

21/11/2019

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

CA-00032404-001

21/11/2019

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

CA-00032405-001

21/11/2019

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

CA-00032406-001

21/11/2019

The Complainant commenced employment with the Respondent on 9th September 2019. At all times the Complainant was employed as a childcare professional. The Complainant worked an average of 40 hours per week, for which she received €600 gross remuneration. The Complainant’s employment ended on 15th November 2019.

On the 19th & 21st November 2019, the Complainant lodged six separate complaints with the Commission. A hearing in relation to the same was convened and finalised on 5th March 2020. At the outset of the hearing, the Complainant accepted that two of these complaints (those bearing reference numbers CA-00032397-001 & CA-00032400-001) were duplicates of the complaint bearing reference CA-00032406-001 and were subsequently withdrawn. The Complainant also confirmed that she did not wish to pursue the complaint bearing the reference number CA-00032405-001 and this was also withdrawn.

No issues regarding my jurisdiction to hear the remaining three complaints were raised at any stage of the proceedings.

The Complaint stated that at the outset of her employment, she was informed that she would receive a contract of employment once her probationary period of three months had finalised. Given that she was employed for just over two months, she did not receive any written statement regarding her terms of employment, in contravention of the Act.

In response to the Respondent’s position, the Complaint accepted that she completed and signed document titled “Induction Training Checklist”. She further accepted that this document stated that a contract of employment, job description etc. was issued on 11th September 2019, two days following her date of commencement. She stated that she never had sight of a contract that was allegedly placed in the file in late September and denied that this matter had ever been discussed with her line manager at the relevant time. When the unsigned contract was presented to the Complainant at the hearing, she stated that she had never viewed the document prior to that date.

In rebuttal of the Complainant’s complaint, the Respondent stated that she left a contract in the Complainant’s file for her signature but that she failed to sign and return the same.

The Respondent stated that shortly following the Complainant’ commencement date, she completed a formal induction whereby the rules, policies and procedures of the facility were explained. Regarding the issue of the contractual documentation, the Respondent advised that these were being drafted and would be issued shortly thereafter. Approximately four weeks later these contracts were finalised and were placed in the relevant employee’s file with an instruction to review, sign and return the same. Despite numerous reminders at the weekly staff meeting, the Complainant failed to return the same prior to the termination of her employment approximately five weeks later.  

In summary, the Respondent submitted that she complied with the relevant section of the Act in providing a written statement of terms and that she could not be held accountable for the Complainant’s failure to sign and return the same.

Section 3 of the Terms of Employment (Information) Act 1994 (as amended) provides that an employee must be issued with a written statement of terms shortly after the commencement of their employment.

I note that there is a significant conflict of evidence in relation to the provision of these terms of employment. While the Complainant’s induction sheet does indicate that she received these documents on 11th September, it is accepted by the Respondent that no written terms were presented on this date. Notwithstanding the conflict of evidence regarding the presentation of the terms thereafter, I note that the Respondent failed to retain any form of documentary proof that the Complainant was given the contract at the relevant time. In the circumstances I prefer the evidence of the Complainant and find that the Respondent is in contravention of the Act and that that complaint is well-founded.  

The Complaint submitted that the Respondent failed to pay her for a number of weeks. The Complainant alleged that she was owed the sum of €2,601.73 in respect of unpaid wages accrued over the course of her employment.

In addition, the Complainant alleged that she was due the sum of one week’s wages in respect of her statutory notice payment. The Complainant denied that she was not due the same as she had terminated her employment by way of resignation.

By response, the Respondent accepted that the Complainant was underpaid wages. By way of explanation, she submitted that the Respondent relied on funding from a third-party organisation to meet operating costs. Unfortunately, due to circumstances beyond the control of the Respondent, this payment was delayed, resulting in the inability of the Respondent to pay the Complainant and other staff members on time.

In relation to the issue of notice pay, the Respondent submitted that this was not due as the Complainant had resigned her employment.

As the Respondent has conceded that the Complainant is due wages, I find that this complaint is well-founded and find in favour of the Complainant.

Regarding the issue of notice, and notwithstanding the dispute as to whether it is due to the Complainant on foot of an alleged resignation, it must be determined whether it is properly payable as per Section 6 of the Act. In this regard, I have found that the Complainant did not receive a contract of employment and consequently her entitlement in this regard is dictated by the relevant legislation. I note that the Complainant commenced employment on 9th September 2019, with the employment terminating on 15th November 2019, resulting in just under nine weeks of employment in total. Given that this tenure of employment would not result in a requirement for the Respondent to pay statutory notice, I find that a notice payment does not constitute wages that are properly payable under the Act.

The Complainant alleged that she did not get compensated for outstanding annual leave on the termination of her employment, in contravention of the Act.

The Respondent accepted that the Complainant was not compensated for outstanding annual leave on the termination of her employment. Again, this issue arose as a result of the third-party body failing to provide funding on a timely basis, resulting in the Respondent’s inability to meet payroll obligations.

As both parties accept that the Complainant was not paid for outstanding annual leave on the termination of her employment, and that this is a contravention of the legislation, I find that the complaint is well founded and find in favour of the Complainant.

CA-00035406 – Complainant Under the Terms of Employment (Information) Act 1994

I find that the complaint is well founded and consequently the Complainant’s application succeeds. I find that the Complainant should be paid the sum of €1,200 in compensation for the breach of the Act.

CA-00032335-001 – Complainant Under the Payment of Wages Act 1991

I find that the complaint is well-founded and consequently the Complainant’s application succeeds. In this regard, I direct to the Respondent to pay the sum of €2,601.73 in respect of the underpayment of wages.

CA-00032404-001-001 – Complainant Under the Organisation of Working Time Act 1997

I find that the complaint is well-founded and consequently the Complainant’s application succeeds. I find that the Complainant should be paid the sum of €1,000 in compensation for the breach of the Act.

Payment of Wages, Annual Leave, Minimum Notice