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-00032337-001

19/11/2019

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

CA-00032389-001

21/11/2019

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

CA-00032390-001

21/11/2019

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

CA-00032392-001

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 25 hours per week, for which she received €300 gross remuneration, an effective rate of €12 per hour. The Complainant’s employment ended on 15th November 2019.

On the 19th & 21st November 2019, the Complainant lodged three separate complaints and one trade dispute under the Industrial Relations Acts with the Commission. On 12th February 2020 the employer positively confirmed that she wished to engage with the Industrial Relations dispute.

A hearing in relation to the same was convened and finalised on 12th November 2020. The hearing was conducted via means of a remote platform, with neither party experiencing significant technical issues during the same. Both parties issued extensive written documentation in advance of the hearing and availed of the opportunity to question the opposing evidence during the hearing. Additional documentation was received following the hearing on the request of the Adjudicator with same being copied to either side.

The various matters were dealt with in a manner consistent with the chronology of the employment. No issues as to my jurisdiction to hear the complainants or dispute 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.

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’s 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 Complainant submitted that the Respondent failed to pay her for a number of weeks. She submitted that she was owed the sum of €1,639 in outstanding wages.

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.

Following calculation by the Respondent following the hearing of the matter, it was accepted that the Complainant was owed the sum of €1,686.00 in outstanding wages as per the payslips issued.

Notwithstanding the same, the Respondent submitted that had the wages been paid on time, the Complainant would have been overpaid for annual leave. By submission received post-hearing, the Respondent calculated that the Complainant took five days of annual leave (or 25 hours). By the Respondent’s calculations, the Complainant was entitled to 18 hours of annual leave having regard to the amount of hours she worked in the totality of her employment. The value of this annual leave was calculated at €420.00. In light of the same, the Respondent submitted that the Complainant was due the sum of €1,266 in underpaid wages.

As the Respondent has conceded that the Complainant was not paid wages that were properly payable to her, I find that this complaint is well-founded and find in favour of the Complainant.

Regarding the value of the same, I accept the Respondent’s calculation of €1,686.00 in respect of the same. I further note the subsequent calculation stating that this includes an overpayment of €420.00 when the actual annual leave taken is considered.

Having considered both sets of calculation, and the documents submitted post hearing, I find that the Complainant accrued an entitlement of 18 hours annual leave during her employment. As she took 25 hours of annual leave, this represents an overpayment of 7 hours of overpayment. As the Complainant’s rate of pay was €12 per hour, I find the amount of the overpayment is €84. Consequently I find that the amount of outstanding wages is €1,602.00.

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.

Following the hearing, the Respondent submitted records and payslips that demonstrated, in her submission, that the Complainant would have been overpaid for annual leave should her payment have been received on time.

Section 23 of the Act provides that,

“Where…an employee ceases to be employed…and the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee…the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay…that he or she would have received had he or she been granted that annual leave.”

While I note the Respondent’s submission that the outstanding holiday pay is included in amount of outstanding wages set out above, the fact remains that the Complainant was not compensated for her outstanding annual leave on the termination of her employment in accordance with Section 23 above. Consequently, I find that the Respondent is in breach of the legislation and the complaint is well-founded.

The Worker alleged that she her employment was terminated in a manner that was unfair to her. She stated that shortly after the commencement of her employment issues began to arise regarding her wages and the late payment of the same. In November 2019, the Worker, along with three of her colleagues, corresponded with the Employer seeking a resolution of the difficulties they were experiencing.   By response the Employer acknowledged their concerns and stated that “in light of everything you have said, I feel it is best for all concerned that you do not return to work until this matter has been resolved. It will then be the end of your probation period and a more permanent decision may be made”. Later, when these matters were being discussed further, the Employer again stated that, “my decision stands, as is my right to do so during your probationary period, to ask you not to return to work until this issue has been resolved.” Later that evening, the Worker and the other employees involved noticed an advert on social media inviting applications for their roles within the Employer. This was interpreted as a termination of their employment.

It is the position of the Worker that the manner of her dismissal was fundamentally unfair towards her.

By response, the Employer submitted that she did not dismiss the Worker, but that she resigned of her own volition. The Employer stated that due to issues with third party organisations, she experienced difficulties paying a number of employees, including the present worker, on time.   Notwithstanding the same, the employer sought to engage with the affected employees in an effort to resolve the issue and ensure they could be paid as frequently as possible. In November of 2019, it became apparent that the Worker and the other employees affected were becoming understandably disgruntled. As the Employer did not wish for unhappy staff to create an uncomfortable atmosphere, she asked the affected employees not to return to work until the issue had been resolved. The Employer stated that she did not dismiss the Worker at this point and she hoped she would return when the matters were resolved. Unfortunately, the Worker and the other employees affected took it upon themselves to resign the employment. This set of resignations resulted in the employer becoming extremely short staffed. To address the issue, the Employer sought to engage support staff to fill the roles and advertised for replacements for the Worker and her colleagues.

In this matter, it is agreed that the Worker experienced numerous difficulties regarding her wages and the timely payment of the same. Whatever the ultimate cause of these difficulties, this represents a significant breach of the contract of employment and gave rise to a legitimate grievance on the part of the Worker. While it is evident that the Employer was seeking to address these issues at the relevant time, I note she unilaterally imposed the temporary solution of the Worker not attending work until the matter was resolved. This solution was not the result of a consultation with the Worker and she had no input in relation to the same.

During the hearing a conflict arose as to whether the Employer actually dismissed the Worker or whether she resigned her employment. From a plain reading of the text messages involved, it is apparent that the Employer did not, at that time, dismiss the Worker. It is apparent that the request to “stay away from work” was temporary in nature, on both occasions it was made it was qualified by a term that rendered the same temporary in nature. As a consequence of the same, it is apparent that the Worker then effectively resigned her employment thereafter.

Notwithstanding the same, I find that the Worker acted reasonably in doing so. The payment of wages is one of the core terms of a contract of employment. By November 2019, the Worker was owed significant arrears of wages and, as stated by one of her colleagues on her behalf, she could not be expected to work for nothing. The temporary solution of the Worker staying away from wok until the matter was resolved did nothing to alleviate these concerns and only seemed to exacerbate the issues. As a consequence of the foregoing, I find in favour the Worker and consequently the complainant is well founded.

CA-00032389-001 - Complaint under the Terms of Employment (Information) Act 1994            

I find that the Complainant is well-founded and consequently the Complainant’s application succeeds.

Section 7 of the Act (as amended) empowers me to award compensation not exceeding four weeks remuneration in respect of breach of the Act. Having regard to the same, I award the Complainant €600 in compensation.

CA-00032337-001 - Complainant Under the Payment of Wages Act 1991

Section 6 of the Act requires that I make a decision in relation to this complaint. In the circumstances I find that the complaint is well founded.

Having regard to redress, Section 6 provides that I may direct the Respondent to pay the Complainant compensation not exceeding the amount due had the wages been paid. Having regard to the foregoing, I direct the Respondent to pay the Complainant the sum of €1,602.00, the amount of wages outstanding.

CA-00032390-001 - Complainant Under the Organisation of Working Time Act 1997

Section 27 of the Act requires that I make a decision in relation to this complaint. In the circumstances I find that the complaint is well founded.

Regarding redress, Section 27 allows for a payment of compensation “not exceeding 2 years’ remuneration in respect of the employee’s employment”. In the circumstances I award the Complainant the sum of €500 in compensation for the breach of the Act. For the avoidance of doubt, this award is by way of compensation only.

CA-00032392-001 - Dispute under the Industrial Relations Acts

I find that the complaint is well founded. I recommend that the Employer pay the Worker the sum of €1,500 in compensation.

Contract, Payment of Wages, Annual Leave, Trade Dispute