ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00026147

Parties:

	Complainant	Respondent
Parties	Maéva Daniel	Burren Atlantic Hotel And Holiday Village

Representatives

Self Represented

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-00033449-001	31/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00033449-002	31/12/2019

Date of Adjudication Hearing: January 20th 2021

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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 alleged she received no written contract of employment and was due outstanding pay.

Summary of Complainant’s Case:

The Complainant is a French National who came to Ireland and decided to seek employment here.

The Complainant worked from May 14th 2019 to July 13th 2019.

The Complainant was interviewed and told her duties would be very wide as it was a small Hotel and would involve cleaning, housekeeping, waitress, barmaid and receptionist.

The Complainant was told she would 40 hours per week and maybe more in the peak of the holiday season. She was told she would get accommodation and food from the restaurant.

After three weeks the Complainant learned she was being deducted 70 Euros per week for accommodation. She was not informed of this in advance. The Complainant requested a written contract but was never supplied with one.

The Complainant was never supplied with a work schedule.

The Complainants days off and start times were being varied without notice.

The Chef left and the Restaurant was closed for two weeks so she never received any food from the Restaurant.

The Complainant was not paid for the following dates;

May 20th to 26th = underpayment of 72 Euros

June 10th to 16th =underpayment of 239 Euros

Unspecified dates = underpayment of 176 Euros

Summary of Respondent’s Case:

The Respondent stated he gave the Complainant a contact and she signed it. He could not recall the date and did not supply a copy.

The Respondent stated the Complainant was using the company computer at night to check on things inappropriately and logged on as the Accountant.

The Respondent accepted some errors occurred in pay but they had been corrected and the Complainant was due nothing.

Findings and Conclusions:

The Hearing was held on January 20th 2021 and during the height of Covid.

At the Hearing the Respondent stated the Hotel was closed and he had no way of getting the information required to defend the case until the Hotel opened again.

The Hearing was adjourned to allow the Respondent the opportunity the gather any relevant information.

The WRC wrote to the Respondent on February 15th seeking the agreed information by February 20th 2021. No reply was received from the Respondent.

The WRC again wrote to the Respondent on February 25th setting put the information required of the Respondent. No reply was received from the Respondent.

The WRC again wrote to the Respondent on March 12th 2021 again setting put the information required of the Respondent. The Respondent replied on March 16th 2021 he could not supply the information until the Hotel opened. The mater was then left to rest until Hotels in Ireland were allowed open up again.

The WRC again wrote to the Respondent on August 28th 2021 by Registered Post seeking the agreed information and setting a final deadline of October 7th 2021 for the supply of any further evidence and informing the Respondent that the Adjudicator would proceed to Decisions on the issues after October 7th 2021. No reply was received by the WRC.

Based on the evidence supplied I find the following;

The Complainant was not supplied with a written contract of employment within two months of commencing employment in breach of Section 3 of the Terms Act which states

“3.—(1) 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 the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”

Secondly, based on the evidence available to me the Complainant was underpaid by 415 Euros.

Decision and Recommendation;

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.

With regard to the non provision of a written contract within two month as specified by the Terms of Employment (Information) Act 1994 (CA-00033449-001) I find the Complaint well founded but given the very short duration of employment I award the Complainant 400 Euros for this breach.

With regard to the complaint under the Payment of Wages Act 1991 I find the Complaint well founded and award the Complainant 415 Euros. (CA-00033449-002).

Dated: 10th November 2021

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Pay