ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026295
Parties:
| Complainant | Respondent |
Anonymised Parties | Sales Representative | Veterinary Supplier |
Representatives | Siobhan McLoughlin Citizen’s Information | Company Directors |
Complaint(s):
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-00033502-001 | 06/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00033502-002 | 06/01/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00033502-003 | 06/01/2020 |
Date of Adjudication Hearing: 10/12/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention - by an employer - of an Act (referred to in the 2015 Act), made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
In particular, the Complainant herein has referred the following complaints by way of Workplace Relations Complaint Form dated the 6th of January 2020:
- A Complaint as provided for under Section 7 of the Terms of Employment (Information Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment. The said terms are specified in Section 3 of the 1994 Act and include items such as names, addresses and place of work. There should also be a job title and a description of the nature of the work. The start date and the nature/duration of the Contract should be included in the statement as well as the terms of the remuneration. This statement should be dated and signed with copies retained by both parties.
In circumstances where I consider the complaint to be well founded, I may require a Statement of Terms be provided. In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.
- A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Section 5 of the Payment of Wages Act, 1991 sets out the instances wherein deductions can and cannot be made. Section 5 (1) states that an employer shall not make a deduction from an employee unless,
The deduction is required by Statute or Instrument
The Deduction is required by the Contract of employment
The employee has given his prior consent in writing
Section 5 (2) The employer shall not make a deduction in respect of any Act or omission of the employee
It is noted in a preliminary way that per Section 4 an Employer shall give or cause to be given to an employee statement in writing which will specify the gross amount of wages payable to the employee and the nature and the amount of any and all deductions taken therefrom
In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. I further find that the Complainant’s Workplace Relations Complaint Form dated the 6th of Jamuary 2020 submitted within the time allowed.
- A complaint of a contravention of The Organisation of Working Time Act 1997 and in particular to a contravention under Section 19 of the Act which sets out those circumstances which give rise to annual leave entitlements. Under the Act an Employee becomes entitled to Annual leave equal to:
4 weeks in a leave year in which the Employee has worked 1365 hours or more;
1/3 of a working week in each month that the Employee has worked in excess of 177 hours;
8% of the hours worked up to 4 working weeks
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer as provided for under Section 41 of the Workplace Relations Act shall do one or more of the following:
- (i) Declare the complaint was or was not well founded;
- (ii) Require the Employer to comply with the relevant provision;
- (iii) Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
Background:
The Complainant issued a Workplace Relations Complaint Form on the 6th of January 2020 citing three specific breaches of employment legislation by the named Respondent Company. The Complainant had only been employed by the Respondent company for some 16 weeks before tendering his resignation. |
Summary of Complainant’s Case:
The Complainant was represented by someone from Citizen’s Information. The facts of the case were outlined to me and the submission provided was referred to. In addition, the Complainant gave evidence on his own behalf. Briefly, the complainant says he was employed for a short time before resigning as a result of the employer not complying with its obligation to remunerate the complainant. |
Summary of Respondent’s Case:
The Respondent accepts that the Complainant is at a financial loss though did not assess that figure. The Respondent sought to shift liability to a second company based in England as being the true and correct employer. |
Findings and Conclusions:
A preliminary issue arose as to who was the Employer herein. The Respondent is an Irish company based in Cork. The Respondent has a sister Company registered in Lancashire and set up in 2016. The same two Directors are named on each company. I have been told by the parties (including the two company Directors representing the Respondent herein) that the English based company has now been dissolved. The Respondent directors have invited me to find that the parties always intended that the Complainant was to be employed by the English company as the bulk of his work was to be carried out in the UK (primarily Scotland). As the Employer had failed to observe its obligations under the Terms of Employment (Information) Act, 1994 (or the English equivalent of that Act) I cannot confirm who the Employer is by reference to a written statement that should have been provided to the Employee within two months of commencing his employment. I am therefore bound to consider the facts surrounding the commencement of employment.
I have been shown a standard Respondent Contract of Employment dated for 2018 which was shown to the Complainant some two months prior to the commencement of his employment in August of 2019. As this Contract nominates the English Company as the employer, I have been asked to give weight to the idea that this demonstrated there was always an intention that the complainant was to be employed under the English based company. I have additionally been told that as the Complainant gave details of his English National Security Number and English Driver’s Licence, this showed he knew that the arrangement was that he would be employed in England.
As against this, the complainant has confirmed that he has lived and worked in Scotland in the past but that his permanent address is now in Donegal as was the case when he was interviewed for this position. He says that he was interviewed in Sligo and that his initial training took place at the company based in Cork. The Complainant confirmed that he knew he was expected to travel as part of his job and that his previous experience in Scotland was what made him a good fit for the company. The Complainant says that for the duration of his employment he was only ever in contact for instruction or query with the offices of the company based in Cork. Such limited documentary evidence that was available seemed to confirm that Mr. OS signed off as being with the Irish Respondent company.
The Complainant says that when he started in August 2019 he had agreed with the Director Mr. OS that he would be working a 40 hour week at a rate of €630.00 and would additionally be re-embused for motor-fuel costs. The Complainant gave evidence that, despite his keeping his end of the agreement that they had struck, the Employer never paid him a full wage or expenses. Over the 16 weeks he worked there, the Complainant should have been paid €10,080.00 gross and vouched expenses of €915.98. In fact, in that period of time the Complainant was only paid €2,600.00 gross with a promise that matters would be sorted out in due course. Payments were made in small amounts and in euro and to the Complainant’s Irish Account and directly from the Director based in Cork. I would have to find that the use of an Irish account in the jurisdiction where the Complainant resides as being persuasive evidence of an intention to have his financial and tax affairs seen to in this jurisdiction. Eventually the Complainant tendered his resignation and was compelled to issue the within proceedings to sort out the balance of his pay.
On balance I am absolutely satisfied that the Complainant was employed by the Respondent Irish company. The suggestion that there was another potential employer was only made after the complaint herein had issued, and I would suggest this is a ploy that has been used as a means of avoiding a liability that has now arisen. Additionally, I do not accept that the Complainant was handed a proposed contract of Employment after the employment had commenced. The Complainant has denied that this happened, and the Employer was unable to provide a copy or other evidence of this having happened.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00033502-001I consider the complaint to be well founded and I direct payment of compensation in the sum of €1,000.00 as I deem to be just and equitable in all the circumstances.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00033502-002 I consider the complaint to be well founded, and I direct that the employer pay to the employee the sum of €7,500.00.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00033502-003 I Declare the complaint was well founded and I Require the employer to pay to the employee compensation in the amount of €630.00 as is just and equitable having regard to all the circumstances.
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Dated: 4th March 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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