ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027878

Parties:

	Complainant	Respondent
Anonymised Parties	A Kitchen Fitter	A Kitchen Fitting Specialist

Representatives

none

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00035761-001	18/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00035761-002	18/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00035761-003	18/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00035761-004	18/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00035761-005	18/04/2020
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00035761-006	18/04/2020

Date of Adjudication Hearing: 08/01/2021

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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 was employed from 1st August 2019 to 31st December 2019 and the complaint refers to the Complainant not receiving his minimum notice, of not receiving public holiday entitlements, an unlawful deduction from his pay, and not receiving written notice of his terms and conditions. The Complainant was paid €961.54 gross per week.

Summary of Complainant’s Case:

CA-00035761-001 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The Complainant submitted that at end of 2019 he was informed without notice that he was to be let go by text message on 31st December 2019. He maintained he never received pay in lieu of notice.

CA-00035761-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

The Complainant submitted he was entitled to public holiday allowance on Christmas Day 2-19, St Stephens Day 2019 and on 1st January 2019 but he never received his public holiday entitlements.

CA-00035761-003 Complaint under section 6 of the Payment of Wages Act, 1991

The Complainant submitted that when he was received his last week of pay, €300 had been deducted from his pay. He maintained the Respondent told him this was because he had not returned property to the Company. The Complainant contended that his employment was terminated without notice, that he had been left short a week’s wages for the last week in December 2019 which he only received in late January 2020, that he had not received payment in lieu of notice, and as he lived some distance from the workplace he had told the Respondent the items could be collected from him. However, the Respondent did not collect the items yet it deducted €300 from his last week of wages in lieu of the property. The Complainant submitted that he had never been told he would have to pay for the property, and that he never presented the Respondent from receiving them. He therefore maintained the withholding of €300 was unlawful. He advised the property was still available for the Respondent to collect.

CA-00035761-004 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant made this complaint under three separate headings. He submitted that he never received written notice of his Terms of Employment.

CA-00035761-005 under section 7 of the Terms of Employment (Information) Act, 1994

This complaint was dealt with under 004 above.

CA-00035761-006 under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

This complaint was dealt with under 004 above.

Summary of Respondent’s Case:

The Respondent submitted that the handling of the Complainant’s employment arrangements was impacted due to the business conditions at the time where work contracts it understood were in place did not materialise. Since then, the Respondent has changed its management and the person who attended on behalf of the Respondent was not involved in the business at the time of the issues complained of. In general, the Respondent did not dispute the matters under complaint and appeared to be genuinely motivated to address the matters.

CA-00035761-001 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

The Respondent acknowledged that the Complainant’s employment was terminated without notice.

CA-00035761-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

The Respondent acknowledged the Complainant did not receive his public holiday entitlements for Christmas and St Stephens day. It suggested he was not entitled to a public holiday entitlement on New Year’s Day as his work had terminated before New Year’s Day.

CA-00035761-003 Complaint under section 6 of the Payment of Wages Act, 1991

The Respondent acknowledged that €300 was deducted from the Complainant’s wages on the basis that he did not return property. The Respondent acknowledged there was no written contract available for the Complainant and that it may not have had the authority to withhold the €300. It also acknowledged that it could have collected the property but did not do so.

CA-00035761-004 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent acknowledged that it did not have a written notification of the Complainant’s Terms of Employment.

CA-00035761-005 under section 7 of the Terms of Employment (Information) Act, 1994

This complaint has been dealt with ion 004 above.

Findings and Conclusions:

CA-00035761-001 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

S4 (2) of the Minimum Notice & Terms of Employment Act, 1973 requires that the minimum notice to be given by an employer to terminate the contract of employment of his employee shall be— (a) if the employee has been in the continuous service of his employer for less than two years, one week

I find that the Complainant who was employed for five months was not provided with minimum notice of one week, and that his employment was terminated with immediate effect by text on 31st December 20219. I therefore the Respondent was in breach of its obligations under S4(2) of the Act.

CA-00035761-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

Section 21 of the Organisation of Working Time Act provides for entitlements in respect of public holidays. I find that the Complainant, was entitled to 2 public holidays at €192.31 per day but was not paid these entitlements. As the Complainant’s employment was terminated before the New Year’s Day public holiday, I do not find the Respondent is obliged to compensate him for that day.

CA-00035761-003 Complaint under section 6 of the Payment of Wages Act, 1991

Section 6 of the Payment of Wages Act 1991 requires that I make a decision under the relevant sections of that Act.

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

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

in the case of a deduction, the employee has given his prior consent in writing to it.I find that in light of the uncontested evidence that the Respondent has deducted €300 from the complaints wages for his final week worked, and where the deduction did not comply woth Section 5(1) (a) to (c) as outlined above. In accordance with Section 6 of the Payment of Wages Act 1991, I find the complaint is well founded.

CA-00035761-004 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The complaint has been dealt with under 004 above.The complaint has been dealt with under 004 above.Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.Section 12 of the Minimum Notice & Terms of Employment Act, 1973 requires that I make a decision in relation to a contravention of Section 4 of that Act. As I have found the Respondent is in Contravention of the Act and I direct that the Respondent pay to the employee compensation of one weeks’ pay, which represents his statutory notice, and amounts to €961.54, after the making of any lawful deduction.

CA-00035761-002 Complaint under section 27 of the Organisation of Working Time Act, 1997

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to a contravention under Section 5 of that Act. As I have found the complaint is well founded as respects the unlawful deductions from the Complainant’s wages, I direct the Respondent to pay the Complainant compensation of €300 after the making of any lawful deduction.In accordance with Section 7 of the Act I find that the complaint is well founded, and that the Respondent has failed to provide the Complainant with written terms of her conditions of employment. I therefore order the Respondent to pay to the Complainant compensation of one week’s earnings amounting to €961.54 after the making of any lawful deduction.

This complaint has been dealt with under 004 above.

CA-00035761-005 under section 7 of the Terms of Employment (Information) Act, 1994

CA-00035761-004 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

CA-00035761-003 Complaint under section 6 of the Payment of Wages Act, 1991

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 21 of that Act. As I have found that the Complainant did not receive his entitlements for 2 public holidays, I decide the complaint is well made and I require the employer to pay the Complainant arrears of €384.62 for his public holiday entitlements, after the making of any lawful deduction.

CA-00035761-001 Complaint under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

Decision:

CA-00035761-005 under section 7 of the Terms of Employment (Information) Act, 1994

I find the Complainant was not provided with any written notification of his terms of employment and therefore uphold the complaint.

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 anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment. In addition, Section 3(1A) further states that Without prejudice to subsection (3)(1), an employer shall, not later than 5 days 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 … particulars of the terms of the employee’s employment.

Minimum Notice, unlawful deduction of wages, Public Holiday entitlements, Terms and Conditions of Employment.

Key Words:

Dated: 13th January 2021

Workplace Relations Commission Adjudication Officer: Gerry Rooney