ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028090
Parties:
| Complainant | Respondent |
Anonymised Parties | Accounts Officer | Restaurant Group |
Representatives | Self Represented | Myles Kirby, (Liquidator) Kirby Healy Chartered Accountants |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00036097-001 | 11/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00036097-002 | 11/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00036097-003 | 11/05/2020 |
Date of Adjudication Hearing: 02/03/2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
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 as an Accounts Officer with the Restaurant Group from 1st July 2015 until the company went into liquidation on 16th May 2019. He was paid €600 gross per week until in or around the 15th July 2018 when he was put on short time and earned €40 per week thereafter until the final two weeks of his employment where he earned €600 per week. |
Summary of Complainant’s Case:
The Complainant submits that he was not given written terms of employment and that this placed him at a disadvantage and he allowed himself to take part in customs and practices to his detriment. It also disadvantaged him when attempting to assert his rights under the employment legislation which underpins his other complaints herein. He contends that he was owed 15 days annual leave at the time of the termination of his employment and he claims this under the Organisation of Working Time Act 1997. He further submits that he was not paid his statutory entitlement of two weeks payment in lieu of notice and he claims this under the Payment of Wages Act 1991. He argues for an extension to the time limit in the legislation on the grounds of reasonable cause for the delay in submitting his complaints as he was trying to secure payments through the Liquidator. |
Summary of Respondent’s Case:
The Liquidator stated that he had no issue with the 15 days annual leave and two weeks pay in lieu of notice. What he did have a problem with was the payslips selectively submitted by the Complainant and the inconsistencies therein. For example, the research carried out by the Liquidator shows that the Complainant was paid €40 per week for most of the period prior to the termination. He was paid €600 for the final two weeks, 16th and 23rd May 2019. |
Findings and Conclusions:
CA-00036097-001 Terms of Employment (Information) Act 1994. Section 3 of the Act provides 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 particulars of employment. Section 41 (6) of the Workplace Relations Act 2015 provides in relation to time limits: Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. This complaint was received on 11th May 2020. Two months following the commencement of the employment 10th July 2020. It would therefore appear that the time limit would commence on 10th July 2020. |
However, adjudication decision ADJ-00016102 found that the contravention of Section 3 of the Terms of Employment (Information) Act is a subsisting contravention. The Adjudicator found inter alia It is clear that the primary and main objective of the Terms of Employment (Information) Act 1994 was to require an employer to provide a written statement of the main terms and conditions of employment to their employee. I find that a contract of employment has a continuous relevance to one’s employment. I find that the Terms of Employment (Information) Act transposes Directive 91/533/EC, the ‘Written Statement’ Directive. It recites Article 117 of the Treaty and point 9 of the Community Charter of Fundamental Social Rights of Workers. Article 2 provides that an employer shall notify the employee of certain essential aspects of the employment relationship. Article 3 provides for the means of information and that the information stated in Article 2 may be given to the employee in certain forms, for example a written contract or letter of engagement. Article 3 refers to this information being provided not later than two months from the commencement of employment. Article 8 requires member states to introduce measures to allow employees to pursue claims via a judicial process.
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In relation to the substantive complaint, I have not been presented with any evidence that the Complainant was furnished with any written contract of employment. I therefore find his complaint to be well founded. I require the Respondent to pay to the Complainant the sum of €600 compensation, the equivalent of one week’s pay at the time of the termination of his employment.
CA-00036097-002 Organisation of Working Time Act 1997
Section 41 (6) of the Workplace Relations Act 2015 provides in relation to time limits:
Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
This complaint was received on 11th May 2020. The time period therefore would begin on 12th November 2019, at which time the employment of the Complainant was at an end for just under 6 months.
Section 41 (8) provides:
(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
I have considered the complainant’s arguments that there was a delay caused by lengthy time period of correspondence between him and the Liquidator and I am willing to extend the time period.
It is common case that the Complainant was owed 15 days annual leave at the end of his employment. The dispute here between the parties is what constituted normal pay.
Section 23 of the Act provides for compensation for annual leave not taken on cessation of employment as 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, calculated at the normal weekly rate… that he or she would have received had he or she been granted that annual leave.
I find that had the Complainant been granted annual leave in the final two weeks of his employment, his normal weekly rate for such leave would have been €600 per week. I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €1,800.
CA-00036087-003 Payment of Wages Act 1991
Section 41 (6) of the Workplace Relations Act 2015 provides in relation to time limits:
Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
This complaint was received on 11th May 2020. The time period therefore would begin on 12th November 2019, at which time the employment of the Complainant was at an end for just under 6 months.
Section 41 (8) provides:
(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
I have considered the complainant’s arguments that there was a delay caused by lengthy time period of correspondence between him and the Liquidator and I am willing to extend the time period.
It is common case that the Complainant is due two weeks pay in lieu of notice. The issue again here is what constituted normal pay. I note the Liquidator’s point that the Complainant was paid differing amounts throughout the employment period. The Complainant was paid €600 per week for the final two weeks of his employment. I find that his complaint is well founded and I require the Respondent to pay to the Complainant the sum of €1,200 less statutory deductions.
Decision:
CA-00036097-001 Terms of Employment (Information) Act 1994.
Section 7 of the Act requires me to make a decision in relation to this complaint. I have decided that the complaint is well founded. I require the Respondent to pay to the Complainant the sum of €600 compensation, the equivalent of one week’s pay at the time of the termination of his employment.
CA-00036097-002 Organisation of Working Time Act 1997
Section 27 (3) requires me to make a decision in relation to this complaint. I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €1,800.
CA-00036087-003 Payment of Wages Act 1991
Section 6 of the Act requires me to make a decision in relation to this complaint. I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €1,200 less statutory deductions.
Dated: 19th July 2021
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Terms of Employment, Organisation of Working Time Act, normal weekly pay. |